Endresz v. Friedberg

Case Citation:
248 N.E. 2d 901
Year: 1969

Facts:
1. PL Janice Endresz, seven months pregnant, was injured in a car wreck.
2. Two days later she delivered stillborn twin babies.
3. PL Endresz sued for a variety of negligence actions.
4. Court immediately dismissed counts of wrongful death.

Issues:
Is there a cause of action for the unborn children on any count?

Rule:
There is no cause of action until the fetus "sees the light of day" alive, is born alive, etc.

Analysis:
Allowing recovery for things of this nature would award to the distributees of the foetus an unmerited bounty and would constitute not compensation to the injured but punishment to the wrongdoer no windfall rewards for the parents.

Conclusion:
No cause of action and case is thrown out.

Additional Notes:
Notes & Questions:
1. At one time no recovery was allowed for unborn children. This is changing somewhat it is still very controversial
2. Reasons for denial of recovery were 3-fold: (1) it was assumed that fetus had no separate existence from its mother (later found inaccurate) (2) problems of proving causation in fact would be overwhelming - example is can physical trauma cause a baby to be born w/down syndrome? (3) damages were thought to be too speculative - how could jury determine earning power of an unborn child.
3. An overwhelming majority of jurisdictions have held that reasons supporting the dneial of a claim were no longer persuasive and have allowed a cause of action for prenatal injuries when they are inflicted on a viable fetus who is subsequently born alive (principal case = Bonbrest v. Kotz 1946)
4. Suppose that PL alleges dfds wrongful conduct adversely affected mother's ability to produce normal children prior to conception recovery has been allowed sometimes
a. Bergstreser v. Mitchell - negligent performance of c-section - subsequent child had birth difficulties producing brain damage
b. Renslow v. Mennonite Hosp. - wrong Rh-type blood transfusion to a 13-year-old produced injury to her child years later
c. Albala v. City of New York - NY Court of Appeals was scathing in its condemnation of Renslow
5. Majority of states uphold a civil claim for the wrongful death of an unborn child but the authorities are no consistently in favor of liability�in some jurisdictions courts have done little more than decide that the words "death of a person" in the state wrongful death statute were only intended to include individuals who were born alive�suppose the child died during the delivery process -> Duncan v. Flynn - Father of baby who died during process of delivery brought suit for wrongful death against physician, hospital and their insurers. The Circuit Court, Hillsborough County, James S. Moody, J., entered summary judgment in favor of all defendants and father appealed. The District Court of Appeal, Scheb, J., held that where the baby's head emerged from the mother, but its shoulders were too wide to allow further passage and it was necessary to remove the baby's head before its torso could be removed from the mother, the baby did not have a separate and independent existence so as to give rise to an action for wrongful death, even if some breathing had occurred; and that an unborn viable fetus was not a �person� under the former Wrongful Death Act.  -> Shaw v. Jendzejec - Mother of stillborn infant brought wrongful death action against doctor and hospital. The Superior Court, York County, Calkins, J., entered summary judgment in favor of doctor and hospital, and mother appealed. The Supreme Judicial Court, Dana, J., held that Maine does not recognize a cause of action for wrongful death brought by the parents of a stillborn fetus.
6. As principal case predicts if wrongul death action is available for death of unborn fetus, issue is then posed of whether action should extend beyond independent viability of fetus:
a. Thibert v. Milka - held that a fetus with a gestational age of 16 weeks was not viable and thus could not recover under a wrongful death action
7. In upholding principal case the Court of Appeals of NY recently upheld allowed recovery for negligent physician who caused miscarriage in mother
8. Should a pregnant woman owe a duty of care to take reasonable precautions to protect her fetus from harm?
a. Grodin v. Grodin - liability of mother taking an antibiotic while pregnant that discolored infant's teeth
b. Stallman v. Youngquist - fetus subsequently born alive has no cause of action against mother for unintentional infliction of prenatal injuries sustained in auto accident
c. Chenault v. Huie - held in an action arising from injuries to child allegeldly caused by mother's drug and alcohol use during pregnancy; TX law recognizes no legal duty owed by a mother to her fetus)
d. Bonte v. Bonte - recognizing a child born alive has a cause of action against his or her mother for negligent conduct that results in prenatal injjury
9. Surrogate duties:
a. Stiver v. Parker - Surrogate mother brought suit against surrogacy broker, another attorney and physicians for damages sustained when her child, who was actually fathered by her husband rather than the contracting father, was born with severe birth defects. The United States District Court for the Eastern District of Michigan, George LaPlata, J., dismissed action on motion for summary judgment, and mother appealed. The Court of Appeals, Merritt, Chief Judge, held that: (1) defendants owed duty of protection to mother; (2) there were jury questions as to negligence and causation; and (3) expert testimony as to appropriate standard of care was not required.