Speck v. Finegold

SPAETH, Judge,

concurring and dissenting:

I agree with the majority that the daughter, Francine, has no cause of action against appellees, and I also agree with the majority that as Francine’s parents, Frank and Dorothy Speck have a cause of action for their expenses attributable to the birth and raising of Francine. I disagree with the majority, however, on the Specks’ right to recover damages for the emotional distress and physical inconvenience attributable to Francine’s birth; I should allow such damages. 1

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In deciding whether Francine has a cause of action against appellees, it may be helpful first to note that the facts of this case differ markedly from other plausible fact situations that might give rise to a cause of action on the part of an infant. One can imagine a situation in which a defendant’s negligence caused physical damage to a fetus with the result that the infant was born diseased or deformed. Negligent administration of the drug Thalidomide, for example, could cause such a deformity in an otherwise healthy infant. Indeed, in Sinkler v. Kneale, 401 Pa. 267 , *371 164 A.2d 93 (1960), the Supreme Court sanctioned just such a cause of action, where the infant plaintiff claimed that negligence before its birth caused it to be born suffering from mongolism. One can also imagine a situation in which a defendant negligently failed to treat a condition that was treatable in útero, with, again, the result that an otherwise healthy infant was born diseased or deformed. See, Sylvia v. Gobeille, 101 R.I. 76 , 220 A.2d 222 (1966) (sustaining cause of action for failure to administer drug to prevent mother from catching German measles (rubella) after she had been exposed to the disease). In both of these situations, but for the defendant’s negligence the infant would have been born healthy. I see no reason based on logic or policy why such an infant could not assert a cause of action. 2

Here, the case is different. Appellees did not in any way contribute to Francine’s disease. It was a hereditary disease; Francine never had the possibility of being born healthy, as the infants in the situations just imagined had. Her only alternatives were either never to be born, or to be born with the disease. In essence, her claim is that appellees, through their negligence, forced upon her the worse of these two alternatives.

In deciding whether this claim constitutes a cause of action in tort, it is important to consider what are the elements of a cause of action. These are: the existence of a legally recognized duty to protect others against unreasonable risk; a breach of that duty resulting in an injury; and a causal connection between the breach and the injury. Prosser, Law of Torts, § 30 (4th ed. 1971). Here, there can be no doubt that appellees owed a duty to Francine, even before she was born. 3 Furthermore, assuming that Francine *372 was injured by being born to suffer from her disease — and whether she was is the critical issue, which I shall discuss— there can be no doubt that appellees breached their duty to her and that the breach caused her injury, for without appellees’ negligence, Francine would not have been born.

It is the answer to the question of whether Francine suffered an “injury,” as the law uses that term, that leads me to the conclusion that she has no cause of action against appellees. As mentioned, in essence she claims that nonexistence — never being born — would have been preferable to existence in her diseased state. But no one is capable of assessing such a claim. When a jury considers the claim of a once-healthy plaintiff that a defendant’s negligence harmed him — for example, by breaking his arm — the jury’s ability to say that the plaintiff has been “injured” is manifest, for the value of a healthy existence over an impaired existence is within the experience of imagination of most people. The value of nonexistence — its very nature — -however, is not. If it were possible to approach a being before its conception and ask it whether it would prefer to live in an impaired state, or not to live at all, none of us can imagine what the answer would be. We can only speculate or refer to various religious or philosophical beliefs. We cannot give an answer susceptible to reasoned or objective valuation. 4 In Becker v. Schwartz, 46 N.Y.2d 401 , 413 N.Y.S.2d 895 , 386 N.E.2d 807 *373 (1978), in which a similar cause of action was denied, Judge FUCHSBERG, concurring, said:

Who then can say . . . that, had it been possible to make the risk known to the children-to-be — in their cellular or fetal state, or, let us say, in the mind’s eye of their future parents — that the children too would have preferred that they not be born at all?

To ordinary mortals, the answer to the question obviously is “no one.” Certainly the answer does not lie in the exercise by the children, if their mental conditions permit, of subjective judgments long after their births.

Id., at 416 , 413 N.Y.S.2d at 903 , 386 N.E.2d at 815 . Accord, Berman v. Allan, 80 N.J. 421 , 404 A.2d 8 (1979). In Roe v. Wade, supra, the United States Supreme Court said that its “task . . . [was] to resolve the issue by constitutional measurement, free of emotion and of predilection.” Id., 410 U.S. at 116, 93 S.Ct. at 709. Here, similarly, our task is to resolve the issue by settled principles of common law. Doing so, I find that although Francine is obviously suffering greatly from her disease, and although her suffering can only cause one sorrow, it is impossible to say that appellees’ negligence — assuming it were proved — caused her the sort of “injury” that the law finds compensable. 5

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There is no such impossibility of comprehension, however, impeding the effort of Francine’s parents to recover damages in connection with Mr. Speck’s vasectomy, Mrs. Speck’s abortion, the loss of Mrs. Speck’s companionship and services, and for the expenses attributable to the birth and raising of a child, and, more particularly in this case, a child *374 who will need a good deal of special care, training, and medical treatment. The Specks in their complaint alleged-that they had decided to have no more children, for two reasons: economic hardship and their fear of the hereditary disease. The birth of Francine represented the realization of both those fears. 6 The birth thus is a direct and foreseeable result of appellees’ negligence, and the extent of the damages is similarly direct and foreseeable. I should permit the jury to be instructed, however, that it could reduce these damages by an amount representing the benefit that a child — -healthy or unhealthy — would bring to the parents. 7 Restatement of Torts (Second), § 920. The majority opinion, at 506-507, discusses cases in which the “benefit rule” has been applied, but does not actually say whether it would apply the rule or not. If the majority’s statement that “the tort-feasor is liable for all damages which ordinarily and in the natural course of things have resulted from the commission of the tort,” id., at 508, is meant to imply that the damages could not be diminished by the benefits, I disagree.

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I disagree with the majority on the Specks’ right to recover damages for the emotional distress and physical inconvenience attributable to Francine’s birth. As just stated, the Specks have alleged that they did not want another child because of economic hardship and their fear of the hereditary disease. The majority says that many people *375 have children who are unwanted for the same reasons, but with no negligence involved, and that their emotional and mental anguish is identical to that of the Specks. I confess I am puzzled by this reasoning, 8 which ignores the fact that a similar objection could be made in almost any tort case. The right to damages is not defeated by the fact that other persons may suffer them. In an automobile crash case, for example, a jury might find either that one party was negligent, or that no negligence was involved, that is, that both drivers had exercised the care of a reasonable person but that the accident had occurred nonetheless. Similarly, a tree limb might fall on someone; a jury might find either that this was because the landowner had been negligent in not trimming the tree, or because it was a freak accident involving no negligence. In each case, it makes no difference to the injured person that negligence was or was not involved; his physical injury and consequent emotional distress are the same. Yet where negligence is involved, such damages are compensated. Where negligence is not involved, the identical damages are not compensated. This case presents no reason to change this standard analysis, nor does the majority suggest any reason. If it is proved that appellees were negligent, the emotional distress consequent upon the materialization of exactly the risks that appellants feared would be the direct result of appellees’ negligence, and recovery should be permitted. 9 Berman v. Allan, supra.

*376 Accordingly, I should affirm the lower court’s order as to Francine’s cause of action, and should reverse and remand for trial on Frank and Dorothy Speck’s causes of action.

. On appeal from an order sustaining preliminary objections in the nature of a demurrer, we must take as true all material facts well pleaded in the complaint and all inferences fairly deducible from those facts. Yania v. Bigan, 397 Pa. 316 , 155 A.2d 343 (1959); Springer v. Springer, 255 Pa.Super. 35 , 386 A.2d 122 (1978).

. I should therefore modify the majority’s statement that no one has “a fundamental right to be bom as a whole, functional human being.” at 508. One does have such a right, in the sense of a right to have one’s physical integrity unimpaired by someone’s negligence.

. Sinkler v. Kneale, supra, establishes that an infant has standing to sue in Pennsylvania for injuries occurring prenatally. Nothing in Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973), *372 decided after Sinkler , prevents a state from giving legal status to a fetus where no countervailing privacy right of the mother is involved.

. The inability to evaluate the merits of existence and nonexistence— not nonexistence before birth but after death — was discussed — and resolved in favor of existence — in the familiar “To be or not to be” soliloquy in Hamlet:

Who would fardels [burdens] bear,

To grunt and sweat under a weary life,

But that the dread of something after death,

The undiscovered country, from whose bourn No traveller returns, puzzles the will,

And makes us rather bear those ills we have Than fly to others that we know not of?

Thus conscience does make cowards of us all [.]

Shakespeare, Hamlet, III. i. 76-83 (Pelican ed., 1968).

. Thus I do not reach the issue, which many courts, e. g., Gleitman v. Cosgrove, 49 N.J. 22 , 227 A.2d 689 (1967), as well as the majority opinion, at 508, have found dispositive, of the possibility or impossibility of calculating the damages Francine would be entitled to. Notably in Berman v. Allan, supra, the New Jersey Supreme Court said that the problem of damages was not “our sole or even primary concern,” 80 N.J. 421 , 404 A.2d 8 as it had been in Gleitman. Instead, the court decided the question on the absence of legally cognizable injury, as discussed supra.

. I should leave undecided the outcome in a case in which a child that resulted from the defendant’s negligence had been unwanted because its birth presented a risk that in the end did not materialize. For example, it might be that a couple desired no more children because they feared a risk to the mother’s health in childbirth, or, as here, a hereditary disease. If a child was because of the defendant’s negligence nevertheless bom, but with no damage to the mother’s health and itself healthy, arguably the damages should not include the expenses of raising the child. Cf. Wilczynski v. Goodman, 73 Ill.App.3d 51 , 29 Ill.Dec. 216 , 391 N.E.2d 479 (1979).

. This jury instruction should alleviate the concern of the court in Berman v. Allan, supra, which held that the costs of child-rearing were not allowable because the award would be disproportionate to the culpability involved, a windfall to the parents, and too unreasonable a financial burden on the physician. 80 N.J. 421 , 404 A.2d 8 .

. The majority quotes from Becker v. Schwartz, supra, where the court determined that “[t]he recovery of damages for such injuries [emotional distress] must of necessity be circumscribed.” At 509. However, the “necessity” of which the New York court spoke was simply New York case precedent to the contrary, which the court viewed as binding. 46 N.Y.2d at 413 , 413 N.Y.S.2d at 901 , 386 N.E.2d at 813 . Judge WACHTLER, in dissent, noted that if the court was granting the parents’ right to recover the costs of raising the children — and he argued that even that recovery violated New York case precedent — then there was no reason not to allow damages for emotional distress too. Id., at 420 , 413 N.Y.S.2d at 906 , 386 N.E.2d at 818 .

. The majority refers to the contrasting “measureability of pecuniary loss.” At 509. There is no elaboration on this point; surely, however, the majority does not find the claimed damages for emotional *376 distress less measurable here than such damages are in any other case in which their recovery is routinely allowed.