Barbera v. Brod-Dugan Co.

• Decision Date: 21 March 1989
• Docket Number: No. 55079,BROD-DUGAN,55079
• Citation: 770 S.W.2d 318
• Parties: Antonio BARBERA and Rosa Barbera, for themselves and as next friend of Giuseppe Barbera, a minor child, Plaintiffs-appellants, v.COMPANY, the Glidden Company, Emerson Electric Company, Thomas M. Klinger, Salem-In-Ladue Methodist Church, Stinson Sales Corporation, and Stinson Manufacturing Company, Defendants-respondents.
• Court: Missouri Court of Appeals

Page 318

770 S.W.2d 318

Antonio BARBERA and Rosa Barbera, for themselves and as next

friend of Giuseppe Barbera, a minor child, Plaintiffs-appellants, v. BROD-DUGAN COMPANY, the Glidden Company, Emerson Electric

Company, Thomas M. Klinger, Salem-In-Ladue Methodist Church,

Stinson Sales Corporation, and Stinson Manufacturing

Company, Defendants-respondents.

No. 55079.

Missouri Court of Appeals,

Eastern District,

Division Two.

March 21, 1989.

As Corrected April 4, 1989.

Motion for Rehearing and/or Transfer

to Supreme Court Denied April 18, 1989.

Application to Transfer Denied June 13, 1989.

Richard E. Schwartz, James E. Parrot, St. Louis, for plaintiffs-appellants.

Robert A. Wulff, Robert J. Wulff, Paul S. Brown, Dennis E. O'Connell, St. Louis, for defendants-respondents.

GARY M. GAERTNER, Judge.

Plaintiffs-appellants Antonio and Rosa Barbera appeal from trial court's ruling dismissing several counts of their petition in personal injury and products liability action. On appeal appellants urge this court to recognize a loss of parental consortium action, heretofore not cognizable in Missouri, and overrule the trial court's dismissal of a claim for loss of parental consortium brought on behalf of their son Giuseppe. Appellants also challenge the trial court's dismissal of their action against the landowner and its agent. Appellants argue that painting at a height of 28 feet is an inherently dangerous activity and therefore the general rule precluding liability of a landowner where he hires an independent contractor does not apply. We affirm.

Ward Painting Company (Ward) employed Antonio Barbera as a union painter. Salem-in-Ladue Methodist Church (Salem) contracted with Ward to paint the exterior of its church building. Salem entered into the contract with Ward through one of its trustees, Thomas M. Klinger. On May 11, 1987, Antonio Barbera was painting the exterior of a window frame of the church building at a height of approximately 28 feet. Barbera was standing on an extension ladder which was supported by an "airplane pick" ¹ using a bridging method. Barbera thereafter fell from the ladder striking his neck on the airplane pick during the fall. The fall crushed Barbera's C-5 vertebra resulting in quadriplegia and other injuries.

Antonio Barbera brought a negligence action against Salem and Klinger, and also asserted a products liability claim against Emerson Electric Company, manufacturer of the ladder, Brod-Dugan Company, retailer of the ladder, Stinson Manufacturing Company, manufacturer of the airplane pick, Stinson Sales Corporation, distributor of the airplane pick, and the Glidden Company, retailer of the airplane pick. Rosa Barbera sued all respondents for loss of consortium. Antonio and Rosa Barbera brought an action on behalf of Giuseppe Barbera, their paraplegic son, for loss of parental consortium against all respondents. Upon motions by respondents, the trial court dismissed the loss of parental consortium claim as to all respondents. The trial court also dismissed all counts against Salem and Klinger.

Appellants first seek to persuade this court to recognize a cause of action for loss of parental consortium and depart from the law established in Bradford v. Union Electric Co., 598 S.W.2d 149 (Mo.App., E.D.1979). In Bradford this court considered the issue and affirmed the trial court's dismissal of the plaintiff's petition based upon a lack of precedential support or statutory basis. Appellants argue that there is a growing trend in the law to recognize a loss of parental consortium claim. See Hibpshman v. Prudhoe Bay Supply, Inc., 734 P.2d 991, 997 (Alaska 1987); Dearborn Fabricating & Engineering Corp. v. Wickham, 532 N.E.2d 16, 17 (Ind.Ct.App.1988); Audubon-Exira Ready Mix, Inc. v. Ill. Central Gulf Railroad, 335 N.W.2d 148, 151 (Iowa 1983); Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 413 N.E.2d 690, 696 (1980); Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424, 427 (1981); Hay v. Medical Center Hosp., 145 Vt. 533, 496 A.2d 939, 946 (1985); Ueland v. Reynolds Metals Co., 103 Wash.2d 131, 691 P.2d 190, 195 (1984); Theama v. City of Kenosha, 117 Wis.2d 508, 344 N.W.2d 513, 522 (1984); Kelly v. T.L. James Co., 603 F.Supp. 390, 393 (W.D.La.1985) (applying general maritime law).

However, twenty-four jurisdictions in addition to Missouri have rejected such a claim. See Jeune v. Del E. Webb Constr. Co., 77 Ariz. 226, 269 P.2d 723, 724 (1954), overruled on other grounds, City of Glendale v. Bradshaw, 108 Ariz. 582, 503 P.2d 803, 805 (1972); Lewis v. Rowland, 287 Ark. 474, 701 S.W.2d 122, 124-25 (1985); Borer v. Amer. Airlines, Inc., 19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858, 866 (1977) (en banc); Lee v. Colo. Dept. of Health, 718 P.2d 221, 233-34 (Colo.1986) (en banc); Zorzos v. Rosen, 467 So.2d 305, 307 (Fla.1985); W.J. Bremer Co. v. Graham, 169 Ga.App. 115, 312 S.E.2d 806, 808 (1983); Halberg v. Young, 41 Haw. 634, 646 (1957); Green v. A.B. Hagglund & Soner, 634 F.Supp. 790, 796 (D. Idaho 1986) (applying Idaho law); Hearn v. Beelman Truck Co., 154 Ill.App.3d 1022, 107 Ill.Dec. 926, 927, 507 N.E.2d 1295, 1296 (1987); Schmeck v. City of Shawnee, 231 Kan. 588, 647 P.2d 1263, 1266-67 (1982); Durepo v. Fishman, 533 A.2d 264, 264-65 (Me.1987); Salin v. Kloempken, 322 N.W.2d 736, 737 (Minn.1982); Hoesing v. Sears, Roebuck & Co., 484 F.Supp. 478, 479 (D.Neb.1980) (applying Nebraska law); General Elec. Co. v. Bush, 88 Nev. 360, 498 P.2d 366, 371 (1972); Russell v. Salem Trans. Co., 61 N.J. 502, 295 A.2d 862, 864 (1972); DeAngelis v. Lutheran Med. Ctr., 84 A.D.2d 17, 445 N.Y.S.2d 188, 192 (1981), aff'd, 58 N.Y.2d 1053, 462 N.Y.S.2d 626, 627, 449 N.E.2d 406, 407 (1983); Ipock v. Gilmore, 85 N.C.App. 70, 354 S.E.2d 315, 317 (1987); Morgel v. Winger, 290 N.W.2d 266, 267 (N.D.1980); Sanders v. Sinai Hosp., 21 Ohio App.3d 249, 487 N.E.2d 588, 597 (1985); Norwest v. Presb. Intercomm. Hosp., 293 Or. 543, 652 P.2d 318, 331 (Or.1982); Steiner v. Bell Tel. Co., 358 Pa.Super. 505, 517 A.2d 1348, 1357 (1986), aff'd, 518 Pa. 57, 540 A.2d 266 (1988); Turner v. Atlantic Coastal Line Ry. Co., 159 F.Supp. 590, 590 (N.D.Ga.1958) (applying South Carolina law); Still v. Baptist Hosp., Inc., 755 S.W.2d 807, 815 (Tenn.Ct.App.1988); Graham v. Ford Motor Co., 721 S.W.2d 554, 555 (Tex.Ct.App.1986). For the reasons stated below we decline to deviate from our holding in Bradford and continue to follow the prevailing view of those jurisdictions that have addressed the question.

Various rationales have been espoused by the jurisdictions rejecting loss of parental consortium claims. The underlying difficulty is the intangible nature of the child's loss. The loss of spousal consortium action originated primarily to compensate the spouse of a negligently injured person for loss of sexual relationship but has been broadened to include loss of care, society, and companionship. Although the spousal and parental consortium claims contain common elements, the elements absent from the child's claim are significant.

An additional concern expressed by several courts is a threat of double recovery. A jury may compensate the child for lost economic support through an award to the parent and indirectly factor in a child's emotional loss through the parent's award. As to the child's claim for the parent's loss of earnings, we believe the injured parent recovers on his own claim for loss of earnings, and, when compensated therefor by recovery, this presumably fulfills the child's expectation of participation therein as a family member. Also arising from the recognition of such a claim is the possibility of conflicts within the family regarding settlements and apportionment of lump sum damage awards.

A primary concern to many courts has been the increased social burden through multiplication of litigation. Realistically the burden of paying damage awards will be borne by the public generally through increased insurance costs. Finally, many jurisdictions agree that the question is one of public policy that should be left for the legislature. To the extent that the legislature has recognized a child's loss of parental consortium in a wrongful death statute but has not recognized the child's loss when the parent is injured, we believe this strongly suggests the the legislature has deliberately chosen not to create such an action.

Appellants also attack the dismissal of the loss of parental consortium claim on several constitutional grounds. Appellants argue that the refusal to recognize an action for loss of parental consortium violates equal protection in that it treats similarly situated parties differently for no rational reason. Appellants first assert that said refusal invidiously discriminates between children and spouses of those who are injured because Missouri recognizes a spouse's claim for loss of consortium. We believe that there are significant differences between the parent-child relationship and the spousal relationship which undermine appellants' similarly situated premise. Secondly, a number of rational bases, mentioned above, support different treatment.

Appellants also argue that rejection of the loss of parental consortium claim discriminates between the children of injured parents and the children of parents that have died. The Missouri wrongful death statute permits the child of a deceased person to recover against the tortfeasor. RSMo § 537.080 (1986). The statute also allows recovery by the spouse or parents of the deceased but only one class of parties, i.e. spouse, parent, or child, may bring the action. Thus the children who recover under the wrongful death statute are members of a larger statutory class and there is but a single recovery on behalf of all beneficiaries.

Appellants next assert that rejection of the claim for loss of parental consortium discriminates between parents who can recover for loss of consortium of an injured child and children who cannot recover for the loss of their...