Berger v. Weber

Decision Date30 March 1981
Docket NumberNo. 10,Docket No. 61348,10
Citation411 Mich. 1,303 N.W.2d 424
PartiesChristine 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., and Star of the West Milling Company, Defendants-Appellants. Cal.411 Mich. 1, 303 N.W.2d 424
CourtMichigan Supreme Court

Church, Wyble, Kritselis, Anderson & Robinson, P. C. by Thomas H. Hay and William N. Kritselis, Lansing, for plaintiffs-appellees.

Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark by Roger F. Wardle, Mary Ann Zito, Farmington Hills, for defendants-appellants.

Michigan Trial Lawyers Association, Lansing by Lopatin, Miller, Bindes, Freedman, Bluestone, Erlich & Rosen, Michael Gagleard, Detroit, amicus curiae for plaintiffs-appellees.

KAVANAGH, Justice.

This action arose out of an automobile collision involving plaintiff Christine Berger and defendant-appellant Albert Weber. 1 It is alleged that as a result of the accident, the plaintiff Christine Berger sustained severe and permanent psychological and physical injuries. 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 on behalf of his minor daughter, 2 Denise, for loss of society, companionship, love and affection of her mother Christine Berger.

A jury awarded Wayne and Christine Berger $142,000. The trial court granted defendants' motion for summary judgment as to the issue of liability for the minor daughter's loss of society and companionship. The Court of Appeals affirmed the jury award and reversed the ruling on the child's cause of action, holding that a child may maintain a cause of action for loss of parental society and companionship when a parent is "severely" injured. 82 Mich.App. 199, 201, 267 N.W.2d 124 (1978).

We granted leave to speak to the propriety of recognizing a cause of action for loss of parental society and companionship when a parent is negligently injured. After considering the competing policy considerations, we are satisfied that such a cause of action should be enforced.


Such a cause of action was unknown at common law and only one other jurisdiction recognizes this cause of action. 3

In Michigan the Court of Appeals previously addressed the issue and concluded that a child does not have such a cause of action because of the lack of "statutory or prior judicial authority". Hayrynen v. White Pine Copper Co., 9 Mich.App. 452, 455-456, 157 N.W.2d 502 (1968). Our Court by way of dicta, has stated in two cases that a child does not have an independent cause of action against a third party who negligently injures his parent. 4

Lack of precedent cannot absolve a common-law court from responsibility for adjudicating each claim that comes before it on its own merits. As Justice Smith observed in Montgomery v. Stephan, 359 Mich. 33, 38, 101 N.W.2d 227 (1960), "(o)ur oath is to do justice, not to perpetuate error." Here we must consider the child's claim in light of conditions pertinent to modern society and weigh the reasons urged for denying the cause of action.


Plaintiffs assert that denying the action for loss of society and companionship to a child is inconsistent with the public policy of this state. They point out that Michigan has long recognized a cause of action for loss of consortium in favor of spouses 5 and that parents have an independent cause of action for loss of services and other pecuniary damages resulting from negligent injuries to their minor children. Jakubiec v. Hasty, 337 Mich. 205, 59 N.W.2d 385 (1953); Gumienny v. Hess, 285 Mich. 411, 280 N.W. 809 (1938). In Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118 (1960), these pecuniary damages were held to include the loss of society and companionship of a child who died from negligently inflicted injuries. 6 More importantly, children may recover for the loss of society and companionship of a parent who is negligently killed under the wrongful death act, M.C.L. § 600.2922; M.S.A. § 27A.2922. They may also recover for such loss under the Dramshop act (M.C.L. § 436.22; M.S.A. § 18.993), Podbielski v. Argyle Bowl, Inc., 392 Mich. 380, 386, 220 N.W.2d 397 (1974).

We are satisfied that existing judicial and legislative policies warrant recognizing a child's cause of action for loss of society and companionship of a negligently injured parent. After carefully reviewing the reasons cited by the defendants, we are convinced that they do not justify denying the cause of action the plaintiff seeks.


Defendants-appellants urge several reasons for not recognizing a child's cause of action. The first argument is that the differences between the marital relationship and the parent-child relationship call for different treatment. They assert that a spouse's action for loss of consortium is based to a large extent on the impairment or destruction of the sexual relations of the couple and no similar element exists in the child's claim. We are not persuaded that this distinction is significant enough to deny the child's claim. Sexual relations are but one element of the spouse's consortium action. The other elements love, companionship, affection, society, comfort, services and solace are similar in both relationships and in each are deserving of protection.

Defendants-appellants next contend that allowing a child to maintain an independent cause of action when his or her parent is negligently injured will result in a burden to the individual defendant and to our court system. Under M.C.L. § 600.5851; M.S.A. § 27A.5851, if a person's claim accrues when he is a minor, he is entitled to bring the cause of action at any time through his 19th birthday. The prospect of multiple suits will discourage settlements.

Multiplicity of actions arising out of the same tortious act are a present reality in tort law. Multiple actions may result whenever a single tortious act injures more than one person or property owned by more than one person. Whenever the persons are minor children the tortfeasor is faced with the minority savings provision in M.C.L. § 600.5851; M.S.A. § 27A.5851.

So too when a new cause of action is created, litigation may be increased. However, as the Court of Appeals aptly pointed out, "(t)he rights of a new class of tort plaintiffs should be forthrightly judged on their own merits, rather than engaging in gloomy speculation as to where it will all end". (Citation omitted.) 82 Mich.App. 199, 210, 267 N.W.2d 124.

Another objection to the child's cause of action raised by defendants-appellants is that it would be anomalous to allow a child to recover for negligent invasion of his family interest when he is specifically prohibited from recovery for intentional, direct invasion of his family interest under M.C.L. § 600.2901(1); M.S.A. § 27A.2901(1), which bars suits for alienation of affections.

We do not regard this as anomalous. One may recover for negligent injury or death of a spouse and a child may recover for the negligent death of a parent even though both be barred from recovery for the intentional, direct invasion of the family interest occasioned by alienation of affection.

We are satisfied that the real anomaly is to allow a child's recovery for the loss of a parent's society and companionship when the loss attends the parent's death but to deny such recovery when the loss attends the parent's injury.

Defendants-appellants ask us not to recognize the child's claim because of the economic burden to the public due to increased insurance premiums. Recognizing the child's cause of action may result in increased insurance costs, but compensating a child who has suffered emotional problems because of the deprivation of a parent's love and affection may provide the child with the means of adjustment to the loss. The child receives the immediate benefit of the compensation, but society will also benefit if the child is able to function without emotional handicap. This may well offset any increase in insurance premiums.

Traditional arguments for not recognizing the child's cause of action claim that the damages to the child are too remote and speculative and that compensating the child will result in double recovery because juries already consider the child when making damage awards to the injured parent.

The Court in Montgomery, supra, was asked to deny the wife a cause of action because the injury suffered by the wife was too remote from defendant's act to be made the subject of a cause of action. The Court was unpersuaded by this argument and noted that the remoteness of such injury never bars the husband's cause of action. Like the Montgomery Court, we see no reason why the child's injury is any more remote than the injury in the spouse's cause of action. More importantly, the injury here is no more remote than the injury sustained when the parent is negligently killed.

We are not convinced that the injury to the child is too speculative to award damages. Courts, law review commentators and treatise writers all recognize that the child suffers a genuine loss. 7 While the loss of society and companionship is an intangible loss, juries often are required to calculate damages for intangible loss. Awards are made for pain and suffering, loss of society and companionship in wrongful death actions, and for loss of spousal consortium. Evaluating the child's damages is no more speculative than evaluating these other types of intangible losses.

We agree with the Court of Appeals that because double recovery could result when making awards to parents, this is a further reason for adopting an independent action for the child.

"Rather than having juries make blind calculations of the child's loss in determining an award to the parent, a child's loss could be openly argued in court and...

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    ...that creating this new claim would result in increased insurance premiums and a societal economic burden. See, e.g., Berger v. Weber, 411 Mich. 1, 15, 303 N.W.2d 424 (1981) ("[C]ompensating a child who has suffered emotional problems because ofthe deprivation of a parent's love and affectio......
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    ...583 So. 2d 483 (La. 1991); Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 516, 413 N.E.2d 690 (1980); Berger v. Weber, 411 Mich. 1, 13, 17, 303 N.W.2d 424 (1981); Pence v. Fox, 248 Mont. 521, 527, 813 P.2d 429 (1991); Gallimore v. Children's Hospital Medical Center, 67 Ohio St. 3......
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    ...Co., 353 So.2d 349 (La.App.1977) (appeal dism'd); Berger v. Weber, 82 Mich.App. 199, 267 N.W.2d 124, (1978) (aff'd and modified 411 Mich. 1, 303 N.W.2d 424, 1981); Suter v. Leonard, 45 Cal.App.3d 744, 120 Cal.Rptr. 110 (1975); Hankins v. Derby, 211 N.W.2d 581 (Iowa 1973); Pleasant v. Washin......
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