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oIf foreseeability were the standard there would be millions of cases. Not economic.oThis allows courts to adjudicate rather than manage.oUsing bright line rule creates predictability for the court; pragmatic approach Is this going to be a proximate cause issue? Or a no duty issue? Unborn ChildrenWrongful Death Actions: May not be maintained for the death of an unborn child. oBefore there may be a decedent there must inevitably be a birth.oCourt draws bright line and says child must be born in order to recover; there is a dissent, which argues that it’s not fair that 1 minute may make a difference if a baby lives and then dies immediately Endresz v. Friedberg: NY case, P was in a car accident, 2 days later delivered stillborn twins Parent’s Recovery:
oMother:physical injuries and maybe emotional injuries (In 2007, the court of appeals said the mother could recover for emotional distress)oFather:loss of consortiumBright line cut off:Child viable in utero if injured by tort allowed to sue when bornwith physical injuries, even if child dies minutes after birth.oEPTL 5-4.1 applies only if the child was bornWrongful LifeWhen a physician negligently fails to inform parents accurately of the risks involved in a pregnancy, said negligence being instrumental either in the parents’ decision to conceive or the parents’ decision not to terminate the pregnancy. oBecker v. Schwartz- NY law- mother gives birth to a child with downs syndrome and sues doctors for never advising of the risk to women over 35 years of age and never advising of the availability of the amniocentesis test, claiming if she was informed she would have abortedi.Court held child cannot recoverfor wrongful life because 1) the infant did not suffer any legally cognizable injury and 2) the remedy afforded an injured party is to place that party in the position he would have been in but for the negligence of D 1.Too speculativefor a jury to determine the degree of life for the child living with the disability than not living at all2.Doctors have no duty to the infant although arguably they are foreseeable risks of harmii.Parents sue for economic loss, emotional distress and medical costs. 1.Parents cannot recover for emotional distress- cant ascertain the damages like infantscause of action- could still lead a happy life even with a child with a disability2.Parents canbring action for medical malpractice (expenses) b/c it is ascertainable damages. The expense which they have borne can be calculated a.Damages are cut off when child reaches 21 in NY and child cannot recover medical expenses at all- in most cases, the child dies young but the recovery is limited up to the 21stbirthday and only for extraordinary expensesCourts allowed recovery in Johnson case when woman received a letter that her mom was dead, even though she was alive; the onlyforeseeable thing in this case is that she will feel emotional and psychological distressLimited Duty: Emotional Distress