A 35-year-old divorced woman and a 58-year-old married man met and became lovers sometime in the autumn of 1981. Prior to their sexual intercourse, both of them discussed the use of contraception since it is presumed that neither party desired to have a child. The woman, who had originally planned to use a diaphragm or the rhythm method, was told not to worry by the man. A New York Injury Lawyer said the man further told the woman that he was sterile as a result of a medical condition. His sterility was caused by a medical condition known as hydrocele. Based on records, a hydrocele is a collection of fluid which usually forms a mass around the testes. The woman believed him and in reliance on his statement, she did not use any contraceptive method when having sexual intercourse with him. Consequently, the woman became pregnant and she decided to have an abortion.
The woman sued the man after becoming pregnant to recover the costs of an abortion incurred by her and other related expenses. The woman demands damages in the amount of $1,500, the jurisdictional limit of the court. Each item of damage alleged to have been acquired by the woman has been examined and computed. The remedy afforded an injured party in negligence is designed to place the injured party in the position that he would have occupied but for the negligence of the accused man.
At first, the woman requests reimbursement for the costs of the abortion in the amount of $200. She has provided the court with a hospital bill. The amount is reasonable and the abortion is directly attributable to the negligence of the man. The woman is entitled to recover the said amount. Similarly, she should recover the sum of $4.35 expended for taxi fare to the hospital on the day on which the abortion was performed. The woman’s next request was a $500, representing ten days loss of work at $50 per day on account of morning sickness prior to the abortion and physical discomfort as a result of the abortion. In support, the woman submits an income statement indicating that for the week she worked only 7 1/2 hours at a total salary of $52.50. She is entitled to recover for four days of lost work or $210. Finally, the woman requests recovery for pain and suffering occasioned as a result of becoming pregnant and having an abortion.
Consequently, the man testified in court that since he is sterile, the woman’s pregnancy must have resulted from sexual intercourse with other man. A Suffolk County Personal Injury Lawyer said the woman vigorously denied the accusation stating that she had not had sexual relations with any man other than the man during the time period when conception occurred. The woman contends that the man’s false assertion as to the state of his fertility is a fraudulent misrepresentation.
Based on records, to establish fraud there must be a representation of fact, which is either untrue or known to be untrue or recklessly made, and which is offered to deceive the other party and to induce him to act upon it, causing injury. The essential elements of a fraud action include material misrepresentation of existing fact, reliance and causation. The claims of fraud must be established by clear and convincing evidence.
The man’s statement to the woman that he was sterile was a material misrepresentation of fact. An NYC Personal Injury Lawyer said the woman’s reliance on the statement has been established, since the court believe her testimony that she would have used a diaphragm in the absence of the statement of the man. Considering such factors as the length of time the parties had known one another, the regularity with which they saw each other, the degree of intimacy between them and the seriousness to the woman of the issue of birth control and of an unwanted pregnancy, the court hold that she was entitled to trust the man’s statement. The woman’s reliance was reasonable and justified.
Accordingly, the hydrocele condition of the man does not generally cause sterility in men. It indicates in research that hydrocele and afflictions similar to it may be a secondary symptom of other medical conditions which could potentially affect a man’s fertility. However, there is nothing in the record to indicate that the man was suffering from any other medical disorder which might affect his fertility.
The failure to use any birth control during sexual intercourse definitely increased the risk that the woman would become pregnant, which is what happened. The substantial increase in the risk that a foreseeable event would occur is sufficient to establish adjacent cause. While it is true that the alternative methods of birth control which the woman would have used had not relied upon the man’s misrepresentation are not one hundred percent effective. Those methods are far superior to sexual intercourse without the use of any contraception. As a result, the remote chance of the pregnancy might have resulted in any event and it is not sufficient to deny the woman’s recovery.
Even if the woman sustained her burden of proving a material misrepresentation, reasonable reliance and causation of the resultant injury, she has not shown by clear and convincing evidence that the man possessed the state of mind that is required for a finding of fraud and deceit.
The man had a duty to take further steps to ascertain the truth regarding his condition or instead to use contraceptives. He did not and it is the basis for imposing liability for the damages incurred by the woman which were proximately caused by his negligence.
The woman testified that she was emotionally distressed as a result of becoming pregnant, having an abortion and her relationship had ended. The woman further sought professional psychological help. The woman didn’t file any claim for the reimbursement for the cost of the therapy sessions. If the woman’s distress was attributable to her emotional upset from the pregnancy and abortion, and not from external causes, damages therefore may be awarded.
The woman testified that part of her pain and suffering resulted from the deterioration in her relationship with the man subsequent to her pregnancy and abortion. She would be alleging that the man’s negligence which precipitated her pregnancy also proximately caused their affair to end. The court didn’t recognize the allegation because there are many factors in a romantic relationship that make cause and effect incomprehensible. The woman has failed to prove that the man’s negligence was the legal cause of her suffering. The affection and love are often transitory and mercurial. This may be stated in terms of the tort principle of assumption of risk on which one who enters a love relationship assumes the risk that the feelings and emotions of the other party may change. People are not bound by an implied contract or by a legal duty to maintain a consistency of feelings or emotions to a present lover. The conclusion strengthened by the abolition of reasons of action in the state for alienation of affection, criminal conversation, seduction and breach of contract to marry.
After the proceeding, the woman is entitled to $200 for the cost of the abortion, $4.35 for transportation, $210 for loss of earnings, and $150 for pain and suffering–a total of $564.35. The judgment for the woman shall be entered in the sum of $564.35.
Getting pregnant is a very difficult situation for any woman. A lot of physical complications could take place aside from the fact that your life can be at risk during the delivery. If you experience medical malpractice on the hands of your physician or other health practitioner and you want to demand for damages, call the NY Medical Malpractice Attorneys. If injury related matters happened, the NY Injury Attorneys or NY Birth Injury Accident Attorneys at Stephen Bilkis and Associates can provide you outstanding legal service and representation.