## Facts

- Janice Endresz, seven months pregnant with twins, was injured as a passenger in a motor-vehicle collision involving automobiles owned/driven by the defendants.
- Two days after the collision, she delivered two stillborn twins (a boy and a girl).
- The father, as administrator of each fetus’s estate, filed two wrongful death actions seeking damages for the children’s lost future support and for medical, hospital, and funeral expenses.
- The mother sued for her personal injuries and, in separate counts, sought damages for loss of the stillborn children’s companionship and related harms.
- The father separately sought damages for his wife’s illness-related expenses and loss of consortium and repeated claims tied to the children’s deaths, including expenses.

## Issues

1. Whether New York’s wrongful death statute (EPTL 5-4.1) permits a wrongful death action for a viable fetus that dies in utero and is delivered stillborn due to alleged negligence.
2. Whether prior recognition of prenatal injury claims for children later born alive requires recognition of wrongful death claims where the fetus is never born alive.
3. Whether expansion of wrongful death liability to stillbirth is a judicial or legislative decision under New York’s statutory scheme.

## Decision

- The Court of Appeals of New York held that no wrongful death action may be maintained for a stillborn fetus.
- The court affirmed dismissal of the administrator’s wrongful death actions for each stillborn twin.
- The court declined to extend the statute’s coverage by judicial construction and indicated that any change should come from the Legislature.

## Legal Principles

- Wrongful death in New York is purely statutory and is strictly limited to the terms of EPTL 5-4.1.
- The statute’s reference to death of a “decedent” presupposes a person born alive; a fetus never born alive is not a statutory “decedent” for wrongful death purposes.
- Recognition of a prenatal injury personal-injury claim for a child later born alive does not compel recognition of a wrongful death claim for a fetus delivered stillborn.
- The wrongful death remedy focuses on pecuniary loss to distributees; courts may consider the speculative character of such loss in stillbirth cases as a reason to refrain from expanding liability.
- When extending the scope of wrongful death beyond existing statutory boundaries, the court will defer to legislative judgment.

## Conclusion

The New York Court of Appeals ruled that EPTL 5-4.1 does not authorize wrongful death recovery for a fetus that is never born alive, reaffirming that any extension of wrongful death liability to stillbirth must be made by the Legislature rather than by judicial interpretation.


Endresz v. Friedberg, 24 N.Y.2d 478, 248 N.E.2d 901 (N.Y. 1969)