Boucher By and Through Boucher v. Dixie Medical Center, a Div. of IHC Hospitals, Inc.

• Decision Date: 21 August 1992
• Docket Number: No. 900476,900476
• Citation: 850 P.2d 1179
• Parties: Daniel BOUCHER, By and Through his Guardian, Torla BOUCHER, an Individual, and James Boucher, an Individual, Plaintiffs and Appellants, v. DIXIE MEDICAL CENTER, A DIVISION OF IHC HOSPITALS, INC., Edward Foxley, M.D., David Moore, M.D., Kathy Marshall, R.N., and Does 1 Through 20, Inclusive, Defendants and Appellees.
• Court: Utah Supreme Court

Page 1179

850 P.2d 1179

Daniel BOUCHER, By and Through his Guardian, Torla BOUCHER an Individual, and James Boucher, an Individual Plaintiffs and Appellants, v. DIXIE MEDICAL CENTER, A DIVISION OF IHC HOSPITALS, INC. Edward Foxley, M.D., David Moore, M.D., Kathy Marshall, R.N., and Does 1 Through 20 Inclusive, Defendants and Appellees.

No. 900476.

Supreme Court of Utah.

Aug. 21, 1992.

Thomas V. Rasmussen, Salt Lake City and Irwin M. Zalkin, San Diego, Cal., for the Bouchers.

Charles W. Dahlquist, Larry R. White, and Merrill F. Nelson, Salt Lake City, for Dixie Medical Center.

Larry R. Laycock and David W. Slagle, Salt Lake City, for Dr. David Moore.

HALL, Chief Justice:

Plaintiffs Torla and James Boucher appeal an order of the fifth district court dismissing their claims of negligent infliction of emotional distress and loss of filial consortium. We affirm.

The trial court dismissed these claims pursuant to Utah Rule of Civil Procedure 12(b)(6), ruling that the Bouchers failed to state a claim upon which relief can be granted. In reviewing a rule 12(b)(6) dismissal, we view the complaint and all reasonable inferences that can be drawn from the complaint in the light most favorable to the plaintiffs. ¹ The facts are recited accordingly. ²

Daniel Boucher, the eighteen-year-old son of James and Torla Boucher, was admitted into Dixie Medical Center with a severely injured right hand. He underwent surgery and lapsed into a coma during the post-operative recovery period. He remained in a coma for ten days before awakening as a severely brain-damaged quadriplegic who will need extensive care for the rest of his life. The Bouchers were present at the hospital and observed their son's condition both before and after he awoke from the coma.

Thereafter, the Bouchers initiated this suit. The complaint, in addition to alleging that Daniel Boucher may recover for his injuries, alleges that James and Torla Boucher may recover individually under theories of negligent infliction of emotional distress and loss of filial consortium. The trial court dismissed these claims on the grounds that Utah does not allow recovery for loss of filial consortium and that Utah does not allow recovery for negligent infliction of emotional distress when the plaintiffs do not claim that they were within the zone of danger created by the defendants' negligence.

The trial court certified these rulings as final decisions pursuant to rule 54(b) of the Utah Rules of Civil Procedure. This certification was proper because the ruling dismissed all of James and Torla Bouchers' claims. ³

This case presents two issues on appeal. First, did the Bouchers allege sufficient facts to state a claim of negligent infliction of emotional distress, as this claim is defined in Utah? Second, does Utah recognize a claim of loss of filial consortium that allows parents to recover for the loss of their adult child's society and affection caused by the child's nonfatal injuries? While these are two distinct causes of action, a common factual thread underlies both claims. Under both theories, the Bouchers seek recovery for harm caused solely by defendants' alleged negligence which resulted in injury to a third party. Such claims involve the competing interests of compensating all those who have been harmed by a tort-feasor and setting rational and workable limits to liability. ⁴ With these interests in mind, we examine the issues on appeal.

I

In their first claim, the Bouchers seek recovery for the emotional distress and shock they suffered upon learning of their son's condition and observing him in the hospital. This court first recognized the claim of negligent infliction of emotional distress in Johnson v. Rogers. ⁵ In Johnson, after surveying the various tests that courts in this country have developed to determine liability for the negligent infliction of emotional distress, we adopted the position taken by section 313 of the Restatement (Second) of Torts (1965), as explained in the comments accompanying that section. ⁶ Section 313's approach, also referred to as the zone of danger approach, allows recovery to plaintiffs who suffer emotional distress because of another's negligence, though they do not suffer any physical impact, only if the plaintiffs are placed in actual physical peril and fear for their own safety. ⁷ Johnson, therefore, does not provide recovery to plaintiffs who are not within the zone of danger created by a defendant's negligence. ⁸

The Bouchers do not claim that they can recover under the restatement's test. Rather, they argue that we should abandon the zone of danger rule in favor of a more expansive approach developed by the California courts. Specifically, they urge this court to adopt California's direct victim approach, as set out in MARLENE F. V. AFFILIATED PSYCHIATRIC MEDICAL CLINIC, ⁹ and California's bystander approach, as set out in Thing v. La Chusa. ¹⁰ Both approaches are modifications of the Dillon rule, ¹¹ a rule that we reviewed and rejected in JOHNSON. ¹²

In urging us to abandon the zone of danger test, the Bouchers cite language in Johnson which suggests that we will consider other approaches in the future. ¹³ However, after the present case was argued, we decided Hansen v. Sea Ray Boats, ¹⁴ wherein we unequivocally adopted the zone of danger rule, rejected the Dillon approach, and rejected any approach that allows plaintiffs who are not within the zone of danger to recover for emotional distress caused by witnessing another's injury. ¹⁵

In the present case, we need not completely restate our reasoning for adopting the restatement's position. We note, however, that Hansen is based in part on the notion that allowing recovery to all those who suffer emotional distress because of another's injury has the potential of allowing unlimited recovery. ¹⁶ The restatement's approach, by limiting recovery to plaintiffs who were actually placed in physical danger and feared for their own safety, sets rational and workable limits on liability and "comports with the basic tort principle that a person may not recover for vicarious injuries." ¹⁷ The approaches that allow recovery for plaintiffs who are not within the zone of danger have not developed rational limits on liability. Rather, these approaches have led to confusion, inconsistent application, and anomalous results. ¹⁸

By reason of our holding in Hansen, we need not undertake an in-depth analysis of the Bouchers' claim. ¹⁹ The Bouchers did not allege that they were in the zone of danger; therefore, they did not state a claim of negligent infliction of emotional distress, as this claim is defined in Utah.

II

The Bouchers' second claim presents an issue of first impression in this court: Should Utah judicially adopt a cause of action that allows the parents of a tortiously injured adult child to recover for loss of the child's consortium?

Loss of consortium claims are based on the recognition of a legally protected interest in personal relationships. ²⁰ Accordingly, if one member of the relationship is tortiously injured the noninjured party has a cause of action to recover for damage to their relational interest, i.e., the loss of the injured party's " 'company, society, co-operation, [and] affection.' " ²¹ In the instant case, we are asked to recognize a right of recovery based on the relationship between parents and their adult son. For the reasons set forth below, we decline to adopt such an approach.

A review of the case law reveals little support for the adoption of a cause of action for the loss of filial consortium. At common law, the father of a tortiously injured child did have a cause of action to recover the value of the child's loss of services and the medical expenses incurred on the child's behalf. ²² However, this action was based on a father's right to his minor children's services and a father's obligation to pay his minor children's medical expenses. ²³ This right of recovery, therefore, did not extend beyond these two elements of damages, nor did it extend to injuries involving adult or emancipated children. ²⁴

These common law principles have undergone some modification. ²⁵ However, no widely accepted development has occurred that allows recovery in cases involving adult children, nor has any widely accepted development occurred that allows recovery for the loss of a child's society and affection.

Indeed, the majority of jurisdictions that have addressed the issue have declined to recognize a cause of action for loss of filial consortium. ²⁶ While a minority of jurisdictions do recognize this claim, ²⁷ no clear trend has developed toward the judicial adoption of this cause of action. Several of the jurisdictions that have adopted a filial consortium claim have done so as a matter of statutory construction, ²⁸ and many of the jurisdictions that have declined to adopt the claim have done so recently. ²⁹ Furthermore, our research reveals only one jurisdiction that has expressly recognized the specific right the Bouchers urge this court to adopt: a judicially created right to recover for the loss of an adult child's consortium. ³⁰

More importantly, Utah law does not support the adoption of a loss of filial consortium claim. While we have not addressed the specific issue presented in this case, we have decided several cases relevant to the Bouchers' claim. The most prominent is Hackford v. Utah Power & Light Co., ³¹ wherein we reaffirmed case law holding that Utah's Married Woman's Act, Utah Code Ann. § 30-2-4, abolished the claim of spousal consortium. ³² Hackford is based on statutory construction and is therefore distinguishable from the instant case, but its analysis and result nevertheless undercut the Bouchers' position.

First, allowing recovery for the loss of an adult child's consortium and denying recovery for the loss of a spouse's consortium would lead to anomalous results. In many instances, the marital relationship is...