O'Toole v. Greenberg

• Decision Date: 26 March 1985
• Citation: 64 N.Y.2d 427,477 N.E.2d 445,488 N.Y.S.2d 143
• Parties: , 477 N.E.2d 445, 53 USLW 2501 Susanne O'TOOLE et al., Appellants, v. Benjamin GREENBERG et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 143

488 N.Y.S.2d 143

64 N.Y.2d 427, 477 N.E.2d 445, 53 USLW 2501

Susanne O'TOOLE et al., Appellants, v. Benjamin GREENBERG et al., Respondents.

Court of Appeals of New York.

March 26, 1985.

John Anthony Bonina, Brooklyn, for appellants.

Andrea M. Alonso and Patricia D'Alvia, New York City, for Benjamin Greenberg and another, respondents.

Howard R. Cohen, for the Jamaica Hospital and Family Practice Clinic, respondent.

OPINION OF THE COURT

JASEN, Judge.

A medical malpractice action brought by a husband and wife seeking recovery of the ordinary costs of raising a healthy, normal child, born after an unsuccessful birth control operation, does not state a legally cognizable claim.

According to plaintiffs' verified complaint, ¹ on January 11, 1980, a tubal ligation procedure was negligently performed upon plaintiff Susanne O'Toole while under the care of defendants, Benjamin Greenberg, M.D., Arthur Leber, M.D., and the Jamaica Hospital and Family Practice Clinic. Plaintiff, nonetheless, became pregnant and gave birth to a female child, Kelly, on November 27, 1981. Plaintiffs, Susanne O'Toole and her husband Brian O'Toole, commenced this action prior to the birth of Kelly, alleging four causes of action in their verified complaint. The first cause of action sought damages on behalf of plaintiffs for (1) the expenses incurred for the pregnancy, delivery and postpartum care rendered to plaintiff Susanne and the child, and (2) the expenses involved in caring for and rearing their expected child. It is the second branch of plaintiffs' first cause of action which is the sole focus of the instant appeal. ²

By notice of motion dated October 19, 1981, defendants Greenberg and Leber moved for an order dismissing plaintiffs' complaint for failure to state a cause of action. By order dated April 6, 1982, Supreme Court, Queens County, granted the motion to the extent only of dismissing that portion of the first cause of action seeking to recover the anticipated expenses of rearing and caring for the child. Plaintiffs moved for reargument, which was granted; however, Supreme Court adhered to its original determination. Defendant Jamaica Hospital and Family Practice Clinic moved to dismiss plaintiffs' first cause of action, and by order dated May 13, 1982, the court granted the motion to the extent only of dismissing that portion of the first cause of action seeking to recover the anticipated expenses of rearing and caring for the child. The orders of Supreme Court were unanimously affirmed by the Appellate Division, Second Department, 98 A.D.2d 814, 470 N.Y.S.2d 31. The Appellate Division certified to this court the following question: "Was the order of this court dated December 30, 1983 properly made?" For the reasons that follow, the certified question should be answered in the affirmative, and the order of the Appellate Division affirmed.

That branch of plaintiffs' first cause of action whereby the parents seek recovery for the pecuniary expense of rearing a healthy but unplanned child, conceived after an unsuccessful surgical birth control procedure, is properly characterized as a claim for "wrongful conception". (Becker v. Schwartz, 46 N.Y.2d 401, 409, 413 N.Y.S.2d 895, 386 N.E.2d 807.) The concept of wrongful conception, as utilized to seek recovery of the expenses involved in raising a healthy child, has been the subject of much scholarly debate (see, 37 Record of Assn. of Bar of City of N.Y. 583-588, Selected Materials on Wrongful Life-Birth ), and has been considered by the courts of this State. ³ The question whether parents may recover as damages the ordinary costs of raising a child born by reason of wrongful conception was specifically left undecided in Becker v. Schwartz, 46 N.Y.2d 401, 410, 413 N.Y.S.2d 895, 386 N.E.2d 807, supra, and is now before us as a matter of first impression.

Resolution of this question requires first a determination as to whether plaintiffs have suffered a legally cognizable harm by the birth of a healthy child. It is a fundamental principle of Anglo-American tort law that an act contrary to law, which does not result in legal harm--injuria absque damnum --is not actionable and does not give rise to any claim or cause. ⁴ (Deobold v. Oppermann, 111 N.Y. 531, 541-542, 19 N.E. 94; Speiser, Krause, Gans, The American Law of Torts § 1:11, at 36, n. 22, citing, inter alia, Becker v. Schwartz, 46 N.Y.2d 401, 411, 413 N.Y.S.2d 895, 386 N.E.2d 807, supra.) Liability for negligent conduct exists only when it proximately causes legal harm to a fully protected interest of another. (Seavey, Principles of Torts, 56 Harv.L.Rev. 72, 89; Pollock on Torts, at 23 [Am. ed. 1894].) Here, in order to accord plaintiffs a cause of action for the recovery of the ordinary costs of raising a healthy, normal child arising from the alleged wrongful conception, plaintiffs must show "not only injuria, namely, the breach of the defendant's obligation, but also damnum to themselves in the sense of damage recognized by law." (Remorquage A Helice [Societe Anonyme De] v. Bennetts, 1 KB 243, 248 [1911]; see also, Hutchins v. Hutchins, 7 Hill 104, 109.) We believe, as a matter of public policy, ⁵ that the birth of a healthy child does not constitute a cognizable legal harm for which an action in tort will lie.

This court has recognized the "very nearly uniform high value" which the law and mankind have placed upon human life. (Becker v. Schwartz, 46 N.Y.2d 401, 411, 413 N.Y.S.2d 895, 386 N.E.2d 807, supra.) In view of our society's acknowledgment of the sanctity of life, it cannot be said, as a matter of public policy, that the birth of a healthy child constitutes a harm cognizable at law. (See, Weintraub v. Brown, 98 A.D.2d 339, 348-349, 470 N.Y.S.2d 634; Clegg v. Chase, 89 Misc.2d 510, 513, 391 N.Y.S.2d 966; Public Health Trust v. Brown, 388 So.2d 1084 [Fla.Dist.Ct.App.]; Cockrum v. Baumgartner, 95 Ill.2d 193, 69 Ill.Dec. 168, 447 N.E.2d 385, cert. denied sub nom. Raja v. Michael Reese Hosp. & Med. Center, 464 U.S. 846, 104 S.Ct. 149, 78 L.Ed.2d 139; Coleman v. Garrison, 327 A.2d 757 [Del.Super.], affd. 349 A.2d 8, 13-14.) The moral, social and emotional advantages arising from the birth of a healthy child are to be preferred to the protection of purely economic interests. (See, Cardozo, The Paradoxes of Legal Science, at 57 [1927].) To hold that the birth of a healthy child represents a legal harm would be to engage this court in the jurisprudentially improper task of recasting the immutable, intrinsic value of human life according to the financial burden thus imposed upon the parents. Accordingly, we hold that the birth of a healthy child, as but one consequence of defendant's tortious conduct, does not constitute a harm cognizable at law. ⁶

For the reasons stated, the order of the Appellate Division should be affirmed, with costs.

WACHTLER, C.J., and SIMONS, KAYE, ALEXANDER and LYNCH ^*, JJ., concur.

MEYER, J., taking no part.

Order affirmed, with costs, and question certified answered in the affirmative.

1 For the purpose of our review, which is limited to an evaluation of the facial...