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Recovery for the Death of a Stillborn Child

By Michael Brophy and Sarah X. Fang
September 29, 2008

More than a half-century ago, Janice Endresz, then seven months pregnant, was injured in a motor vehicle accident and within days delivered stillborn twins, a male and a female. Her husband, as administrator of the estate, brought suit and sought damages for the wrongful death of each child. On appellate review of the trial court's dismissal of the claims for wrongful death of the stillborn children, Chief Judge Fuld of the New York Court of Appeals refused to depart from established precedent, holding that a wrongful death action could not be maintained for the death of an unborn child. Endresz v. Friedberg, 24 NY.2nd 478 (NY 1969). This remains the law of New York. Bacani v. Rosenberg, 52 AD 3rd 417 (1st Dept. 2008).

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