Prates v. Sears, Roebuck & Co., 81997

• Citation: 19 Conn.Supp. 487,118 A.2d 633
• Decision Date: 06 October 1955
• Docket Number: No. 81997,81997
• Court: Connecticut Superior Court
• Parties: Alice E. PRATES et al. v. SEARS, ROEBUCK AND COMPANY.

Page 633

118 A.2d 633

19 Conn.Supp. 487

Alice E. PRATES et al. v. SEARS, ROEBUCK AND COMPANY.

No. 81997.

Superior Court of Connecticut, New Haven County.

Oct. 6, 1955.

Vincent Villano, New Haven, for plaintiffs.

John E. McNerney, New Haven, for defendant.

KING, Judge.

Count two of the above-mentioned action, with certain clarifying amendments with the consent of the defendant at the hearing on the demurrer, purports to set forth a cause of action for damages for personal injuries ultimately resulting in the death of one Christine Ann Prates, the plaintiff administrator's decedent, claimed to have been caused by the defendant's negligence. These injuries are alleged to have been sustained by the decedent en ventre sa mere, and are alleged to have caused (1) her premature birth, (2) ante-mortem pain and suffering during the five days in which she lived after her premature birth and (3) her death. It is alleged that the injuries were caused by the fall of the decedent's mother while she was using an escalator in the defendant's department store. The fall is alleged to have been a proximate consequence of the defendant's negligence. The defendant demurred on the ground that 'there is no right of action to a child when born, or to a representative of such child's estate, for injuries claimed to have been done to such child before birth.' Thus the basic question argued by the parties is whether the second count of the complaint states a cause of action.

Our wrongful death statute covers both ante-mortem elements of damage, such as pain, suffering and medical expenses, and also damages for death itself where, as alleged in this case, the suit is for 'injuries resulting in death'. General Statutes, § 8296, as amended, Cum.Sup.1953, § 2428c. Under that statute, "the right of action arising from any injury to a deceased person by reason of sufferings or disability during life is continued in his personal representative after death with an enlarged right of recovery for ensuing death' * * * [T]he same right of action [which the decedent would have had if she had suffered injury but had lived] survives the death of the decedent [under the wrongful death statute] with the right of compensation for the death itself, as a proximate result of the tort.' Davis v. Margolis, 108 Conn. 645, 648, 649, 144 A. 665, 666.

'Under our [wrongful death] statute * * * the cause of action 'which the executor or administrator is permitted to pursue is not one which springs from the death. It is one which comes to the representative by survival. The right of recovery for the death is as for one of the consequences of the wrong inflicted upon the decedent.' * * * [T]he cause of action comes to the executor or administrator by survival and is a continuance of that which the decedent could have asserted had he lived * * *.' Chase v. Fitzgerald, 132 Conn. 461, 467, 45 A.2d 789, 791, 163 A.L.R. 247.

The complaint alleges that death resulted from prenatal injuries to a viable fetus subsequently born (although prematurely) alive. Thus the basic inquiry is whether the decedent, had she lived, would have had a right of action for these injuries and other ante-mortem elements of damage. Here she is alleged to have sustained the injuries while en ventre sa mere but 'capable of an independent existence.' It should be noted that we have no concern with a situation involving prenatal injuries to a non-viable fetus and that the decision herein is strictly limited to the case of prenatal injuries to a viable fetus.

While a slight majority of the jurisdictions in which the question has arisen still deny a recovery in such cases, the trend of modern authority is definitely in favor of its allowance. The cases are collected in annotations in 10 A.L.R.2d 1059, and 27 A.L.R.2d 1256. It is interesting to note that the Court of Appeals of New York reversed its former holding denying a recovery for prenatal injury to a viable fetus in ...