Berger v. Weber, Docket No. 27377

• Decision Date: 03 April 1978
• Docket Number: Docket No. 27377
• Citation: 267 N.W.2d 124,82 Mich.App. 199
• Parties: Christine V. BERGER and Wayne D. Berger, Individually and Wayne D. Berger, as next Friend of Denise Berger, a minor, Plaintiffs-Appellees, v. Albert E. WEBER, Becker Leasing Company, Inc., a Michigan Corporation and Star of the West Milling Company, Defendants-Appellants. 82 Mich.App. 199, 267 N.W.2d 124
• Court: Court of Appeal of Michigan — District of US

Page 124

267 N.W.2d 124

Christine V. BERGER and Wayne D. Berger, Individually and Wayne D. Berger, as next Friend of Denise Berger a minor, Plaintiffs-Appellees, v. Albert E. WEBER, Becker Leasing Company, Inc., a Michigan Corporation and Star of the West Milling Company Defendants-Appellants.

Docket No. 27377.

82 Mich.App. 199, 267 N.W.2d 124

Court of Appeals of Michigan.

April 3, 1978.

Released for Publication June 27, 1978.

[82 MICHAPP 200] Willingham, Cote, Hanslovsky, Griffith & Foresman, P. C. by Raymond J. Foresman, E. Lansing, Davidson, Gotshall, Kohl, Nelson, Secrest, Wardle & Lynch by Roger F. Wardle, Farmington Hills, for defendants-appellants.

William N. Kritselis, Lansing, George H. Krause (of counsel), Holt, for plaintiffs-appellees.

Before D. E. HOLBROOK, Jr., P. J., and V. J. BRENNAN and BRONSON, JJ.

D. E. HOLBROOK, Jr., Presiding Judge.

This action arose out of a March 13, 1973, rear-end collision involving plaintiff Christine Berger and defendant Albert Weber. Plaintiffs Wayne and Christine Berger filed a complaint on their own behalf and sought damages for medical expenditures, loss of income and loss of consortium. As Next Friend, Wayne Berger sought damages for his mentally retarded daughter's loss of society, companionship, love and affection of her mother, Christine Berger, as a result of the injuries sustained by Mrs. Berger. It was further alleged that the mentally retarded child was dependent upon her mother to administer to her peculiar physical and psychological needs and because Mrs. Berger had allegedly sustained both physical and psychological injuries in the accident, she could no longer continue to administer to the peculiar needs of her retarded daughter.

Defendants conceded the issue of liability as to Wayne and Christine Berger and sought a trial on the amount of damages. A jury awarded Wayne and Christine Berger $142,000 and defendants appeal. We find defendants' allegation of error in the jury instructions to be so lacking in merit as to render discussion unnecessary and we affirm.

Plaintiff Wayne Berger, as next friend, cross-appeals the trial court's pre-trial grant of defendants' motion for summary judgment as to the issue of liability for the minor daughter's loss of society and companionship. The trial court ruled there was no cause of action in Michigan for a minor child's loss of a parent's society and companionship.

We reverse and hold that a child may maintain a cause of action for loss of parental society and companionship when a parent is "severely" injured. Because the injured parent may recover for [82 MICHAPP 202] financial losses resulting from his or her disability, we reject the contention that the child has an independent action for "support", at least in the economic sense. To allow a parent to recover lost wages, for example, and to also allow a child to recover for loss of support would result in double recovery. We therefore confine our holding to a child's independent action for loss of society and companionship.

We have carefully weighed the competing arguments and find the balance tips in favor of creating this cause of action. In Michigan there are several old cases with dictum to the effect that a child does not have an independent cause of action for injuries to a parent and a 1968 Court of Appeals case which, noting the lack of precedent, concluded a child did not state a cause of action. In Blair v. Seitner Dry Goods Co., 184 Mich. 304, 151 N.W. 724 (1915), overruled on other grounds, Montgomery v. Stephan, 359 Mich. 33, 101 N.W.2d 227 (1960), the Court found that minor children may suffer on account of an injury to a parent but that "it has never been considered that they had an action therefor". 184 Mich. at 313, 151 N.W. at 727. Similarly, Hayrynen v. White Pine Copper Co., 9 Mich.App. 452, 157 N.W.2d 502 (1968), grounded its objection to a child's recovery on the lack of " 'statutory or prior judicial authority at the present time * * *' ". 9 Mich.App. at 456, 157 N.W.2d at 503. In deciding which statute of limitations was applicable in a wrongful death action, the Michigan Supreme Court indicated, without analysis, that a minor had no right of action for injuries to his parent. Cugell v. Sani-Wash Laundry Co., 280 Mich. 286, 289, 273 N.W. 571 (1937).

In light of recent statutory and judicial developments we believe that the time has come for [82 MICHAPP 203] recognition of a child's genuine loss when he or she is deprived of parental society and companionship. Until the 1960 case of Montgomery v. Stephan, supra, a husband could recover for the loss of a wife's consortium but the wife could not recover for the same loss when her husband was injured. Citing the long history of legal discrimination against married women, Justice Talbot Smith found that the conditions of modern society justified an overdue change in the judicially created bar to a wife's action for loss of consortium. As Justice Smith concluded, "(t)he reasons for the old rule no longer obtaining, the rule falls with it". 359 Mich. at 49, 101 N.W.2d at 235. We believe the spirit of Montgomery is analogous to the case at bar and that neither the lack of precedent cited in Hayrynen nor the varying objections from courts in other jurisdictions ¹ are sufficient to uphold archaic barriers which prevent a child from being compensated for his or her unquestionable loss.

Emerging Rights of Children

Our ruling is in keeping with the modern judicial recognition of a child as a person with many of the same rights as adults. Once relegated to the status of chattel, ² children have lagged behind other groups of society in being accorded basic rights of citizenry.

In a recent pronouncement by the United States Supreme Court allowing minors to obtain contraceptives without parental consent. Carey v. Population Services International, 431 U.S. 678, 692, 97 S.Ct. [82 MICHAPP 204] 2010, 2020, 52 L.Ed.2d 675, 689 (1977), the Court noted,

" 'Minors, as well as adults, are protected by the Constitution and possess constitutional rights.' Planned Parenthood of Central Missouri v. Danforth (428 U.S. 52, 74, 96 S.Ct. 2831, 2843, 49 L.Ed.2d 788, 808 (1976)). '(W) hatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.' In re Gault (387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527, 538 (1976))."

The Court identified some of those rights: constitutional protection for freedom of speech, ³ equal protection against racial discrimination, ⁴ due process in civil contexts, ⁵ and a variety of rights in the criminal procedure context. ⁶ 431 U.S. at 692, 97 S.Ct. at 2020, 52 L.Ed.2d at 689.

In the context of a complex child custody case, In re Weldon, 397 Mich. 225, 276, 244 N.W.2d 827, 843 (1976), Justice Coleman commented,

"We recognize two protected rights * * * that of the child as a separate and distinct entity to those unalienable rights of American citizenship."

Earlier in her opinion Justice Coleman stated:

"We find the Child Custody Act (MCLA §§ 722.21 et seq.; [82 MICHAPP 205] MSA §§ 25.312(1) et seq.) to be consistent with contemporary recognition of the inherent rights of children as citizens * * *." In re Weldon, 397 Mich. at 268, 244 N.W.2d at 840.

In determining child custody, the legislative standard is the "best interests of the child". A minor child has a right to legal representation in a child custody proceeding, M.C.L.A. § 552.45; M.S.A. § 25.121.

The recent abolition of intra-family tort immunity carries with it the implication that a child has an independent identity. Plumley v. Klein, 388 Mich. 1, 199 N.W.2d 169 (1972). Also a child may sue a tortfeasor for negligently inflicted pre-natal injuries, the Court stating that a child has a right to begin life with a sound mind and body. Womack v. Buchhorn, 384 Mich. 718, 725, 187 N.W.2d 218 (1971).

In short, these cases reflect a growing awareness by the judiciary that children are persons with a variety of legal interests. Today we conclude that one of these interests, parental society and companionship, is deserving of protection when a parent is injured to the extent that he or she cannot provide the child with parental love, guidance and affection.

Nature of Child's Loss

Currently Michigan law allows a spouse to recover for loss of "consortium" when the other spouse is severely injured, Montgomery v. Stephan,supra. In 1971 the wrongful death act was amended to specifically allow recovery for the "loss of society and companionship of the deceased ". ⁷ Even before the statutory amendment, children could recover for such losses in a wrongful death action. Westfall v. Venton, 1 Mich.App. 612, 137 [82 MICHAPP 206] N.W.2d 757 (1965), lv. den. 377 Mich. 700 (1966). Parents may recover for such losses when their children are killed. ⁸ So we are confronted with the anomalous situation of saying that a child suffers the compensable loss of society and companionship when a parent is killed but not when the parent is injured so severely that he or she cannot perform the parental function. We say that when a spouse has been severely injured the other spouse may recover for the loss of society, companionship and/or consortium, but that the child may not recover for almost identical losses.

After noting courts have not allowed recovery, Prosser states,

"It is not easy to understand and appreciate this reluctance to compensate the child who has been deprived of the care, companionship and education of his mother, or for that matter his father, through the defendant's negligence. This is surely a genuine injury, and a serious one * * *." ⁹

Even in denying recovery, courts have recognized the child suffers a true loss. Recently the California Supreme Court admitted:

" * * * we do not doubt the reality or the magnitude of the injury suffered by plaintiffs. We are keenly aware of the need of children for the love, affection, society and guidance of parents; any...