Albala v. City of New York

• Decision Date: 23 November 1981
• Citation: 429 N.E.2d 786,54 N.Y.2d 269,445 N.Y.S.2d 108
• Parties: , 429 N.E.2d 786 Jeffrey ALBALA, an Infant by his Parents, Bernard Albala and Another, et al., Appellants, v. CITY OF NEW YORK et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 108

445 N.Y.S.2d 108

54 N.Y.2d 269, 429 N.E.2d 786

Jeffrey ALBALA, an Infant by his Parents, Bernard Albala and Another, et al., Appellants, v. CITY OF NEW YORK et al., Respondents.

Court of Appeals of New York.

Nov. 23, 1981.

J. Irwin Shapiro, Mineola, Morris J. Eisen, New York City, and Stephen C. Glasser, Mineola, for appellants.

Allen G. Schwartz, Corp. Counsel, New York City (Carolyn E. Demarest and Leonard Koerner, New York City, of counsel), for respondents.

OPINION OF THE COURT

WACHTLER, Judge.

The question presented on this appeal is whether a tort committed against the mother of a child not yet conceived gives rise to a cause of action in favor of the child if that tort caused injury to the child during gestation. The Appellate Division determined that no cause of action for preconception tort is cognizable under the law of this State and we agree.

On December 27, 1971, Ruth Albala underwent an abortion at Bellevue Hospital during the course of which her uterus was perforated. In June of 1973 she commenced a malpractice action which was ultimately settled in June of 1979 for $175,000. Jeffrey Albala, the infant plaintiff in the case now before us, was conceived sometime in September of 1975, while his mother's malpractice case was still pending. He was born on June 3, 1976, four years after the alleged malpractice and three years before that lawsuit was settled.

This action was commenced on behalf of Jeffrey on September 26, 1978. It is contended that as a result of the alleged malpractice of defendants in negligently perforating Ruth's uterus, seven years prior to this lawsuit, plaintiff was born with a damaged brain.

Special Term granted defendants' motion for summary judgment and the Appellate Division, 78 A.D.2d 389, 434 N.Y.S.2d 400, affirmed with one Justice dissenting. The simplicity with which the issue presented on this appeal may be stated: whether a cause of action lies in favor of a child for injuries suffered as a result of a preconception tort committed against the mother, belies both the delicate nature of the controversy and the analysis required to reach a just and proper resolution. We are of the opinion that the recognition of a cause of action under these circumstances would require the extension of traditional tort concepts beyond manageable bounds and therefore agree with the Appellate Division that the complaint was properly dismissed.

It is clear from a review of our prior decisions that we are presented with a question of first impression in this State. The instant case differs significantly from Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691, where we upheld a cause of action on behalf of a child for prenatal injuries incurred in utero as a result of a tort committed against the child's mother during her pregnancy. In that case at the time the tort is committed there are two identifiable beings within the zone of danger each of whom is owed a duty independent of the other and each of whom may be directly injured.

Park v. Chessin, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807, although instructive, is similarly distinguishable from the case at bar. There, Hetty Park gave birth to a child afflicted with polycystic kidney disease who died five hours after birth. The Parks then consulted with an obstetrician who had treated Mrs. Park during her first pregnancy to determine the likelihood of reoccurrence in a subsequent child. They were advised that the disease was not hereditary and that the probability of conceiving a second child afflicted with the disease was "practically nil". Hetty Park subsequently gave birth to a second child afflicted with the disease who died within two and one-half years of birth.

In Park we refused to recognize a cause of action asserted on behalf of the second child on the basis of the allegations that had the negligence not occurred the afflicted child would never have been conceived, or if conceived the pregnancy terminated. We stated that a cause of action for "wrongful life demands a calculation of damages dependent upon a comparison between the Hobson's choice of life in an impaired state and nonexistence. This comparison the law is not equipped to make" (46 N.Y.2d, at p. 412, 413 N.Y.S.2d 895, 386 N.E.2d 807 [citations omitted]).

Park is therefore distinguishable from the instant case for here, assuming the allegations in the complaint to be true, had the alleged negligence not occurred and Ruth Albala's uterus not been perforated, plaintiff would have in all likelihood been born normal. Here, the defendants' alleged negligence made the difference between life in an impaired state and life in an unimpaired state, whereas in Park the alleged negligence made the difference between life in an impaired state and nonexistence.

Yet the teaching of Park is not altogether inapposite, for in that case we isolated the central concern which inevitably brings us to the difficult conclusion we reach today. We noted in that case that there is no predicate at common law or in our statutes for judicial recognition of the birth of a defective child as an injury to the child. We noted the staggering implications of any proposition which would honor claims assuming the breach of an identifiable duty for less than a perfect birth and by what standard and the difficulty in establishing a standard or definition of perfection (46 N.Y.2d, at p. 411, 413 N.Y.S.2d 895, 386 N.E.2d 807). We recognized then, as we do now, that when faced with a novel cause of action sentiment should be put aside and the law must establish the rules ascribing liability in a manner which avoids the drawing of artificial and arbitrary boundaries (Howard v. Lecher, 42 N.Y.2d 109, 397 N.Y.S.2d 363, 366 N.E.2d 64).

We are not unmindful of the point made by the dissent below and by plaintiff on this appeal that at the time Ruth Albala underwent an abortion in 1971 it was foreseeable that she would again conceive and that the health of children born thereafter could be adversely affected by damage to her uterus. We disagree, however, that this foreseeability alone established a duty to plaintiff on the part of defendants. We determined long ago in a case involving policy issues as sensitive as the ones at bar that foreseeability alone is not the hallmark of legal duty for if foreseeability were the sole test we could not logically confine the extension of liability (Tobin v. Grossman, 24 N.Y.2d 609, 615-616, 301 N.Y.S.2d 554, 249 N.E.2d 419; see Pulka v. Edelman, 40 N.Y.2d 781,...