Campos v. Coleman

Decision Date06 October 2015
Docket NumberSC19195
CourtConnecticut Supreme Court

ZARELLA, J., with whom ESPINOSA and ROBINSON, Js., join, dissenting. It is not the duty of this court to make law. That is a task properly left to the legislature. "To do otherwise, even if based on sound policy and the best of intentions, would be to substitute our will for that of a body democratically elected by the citizens of this state and to overplay our proper role in the theater of [state] government." DeSantis v. Prelle, 891 A.2d 873, 881 (R.I. 2006). In the present case, the majority steps beyond the limited role of judicial decision making and into the role of lawmaking by recognizing a new cause of action for loss of parental consortium. I therefore respectfully dissent.

In Mendillo v. Board of Education, 246 Conn. 456, 717 A.2d 1177 (1998), we declined to recognize a common-law claim for the loss of parental consortium. Id., 461, 477. Our rationale was "that the balance of reasons and public policies tips against the recognition of such a claim." Id., 477. In the present case, however, after concluding that the benefits of recognizing a loss of parental consortium claim now outweigh its costs, the majority decides to abandon Mendillo and recognize such a claim. I cannot agree. I express no opinion as to the merits of recognizing such a claim from a policy perspective. Rather, as a matter of prudence, I believe it is unwise to create such a claim by judicial authority. In my view, this is a matter best left to the sound judgment of the legislature. Accordingly, I would affirm the judgment of the trial court.

I do not dispute that this court has the authority to change the common law to conform to the times. In a society of ever increasing interdependence and complexity, however, it is an authority this court should exercise only sparingly. Restraint is especially required when we are asked, as in this case, to address policy questions concerning families and familial relationships.1 The majority outlines five policy considerations that underlie whether this court should recognize a cause of action for loss of parental consortium, and there are undoubtedly more that are implicated. However, these considerations can properly be evaluated only after gathering and considering all of the relevant facts, many of which are not before us in this case.

Indeed, we previously have recognized that "[i]t is not the role of this court to strike precise balances among the fluctuating interests of competing private groups . . . . That function has traditionally been performed by the legislature, which has far greater competence and flexibility to deal with the myriad complications which may arise from the exercise of . . . rights by some in diminution of those of others." Cologne v. Westfarms Associates, 192 Conn. 48, 65, 469A.2d 1201 (1984). Thus, the legislature, unlike this court, is institutionally equipped to gather all of the necessary facts to determine whether a claim for loss of parental consortium should be permitted and, if it should, how far it should extend. The legislature can hold public hearings, collect data unconstrained by concerns of relevancy and probative value, listen to evidence from a variety of experts, and elicit input from industry and society in general. Further, elected legislators, unlike the members of this court, can be held directly accountable for their policy decisions. Finally, the legislature can produce a comprehensive policy by enacting a statutory scheme that provides notice and predictability to insurers and insureds that allows them to plan accordingly.

In contrast, this court is limited to deciding only the cases and questions before it, and, therefore, it is restricted to the facts presented in this case. As a result, there is no evidence or data before this court regarding the consequences of allowing this new claim. The court has not heard from, and cannot consult, experts regarding the likely increases in litigation, jury awards, or insurance premiums. Likewise, statistics regarding the average Connecticut family size and structure—for example, how many Connecticut children are raised by adults other than their legal parents, such as aunts and uncles, grandparents, older siblings, foster parents, etc.—are not before the court. Additionally, this court has heard no "testimony" regarding the impact the recognition of a claim for loss of parental consortium has had in states that have allowed it. Undoubtedly, these are all important considerations when the public policies that underlie a claim for loss of parental consortium are weighed. Moreover, "the judicial process, though public in name, is private in essence. The public cannot broadly petition [a] court to urge it to reach a particular result . . . . [A court cannot] take testimony from all the persons or factions who may have an interest, or effectively weigh the competing interests that they may have." R. Young, "A Judicial Traditionalist Confronts the Common Law," 8 Tex. Rev. L. & Pol. 299, 304 (2004). Consequently, this court's ad hoc decisions regarding the extent and limits of a claim for loss of parental consortium will provide no predictability, and determinations of whether liability exists will be made only after harm has occurred. Thus, the question of whether to overturn Mendillo should be left to the legislature.

Setting aside the fact that this court should not be making this policy determination, I note that the weight of authority in other jurisdictions suggests that Mendillo was correctly decided. The majority claims that "the vast majority of states have recognized the cause of action, either for cases arising from a parent's injury, or for cases arising from a parent's death, or both." The majority is incorrect. In fact, only a minority of states have recognized the cause of action the majority cre-ates, and, of those states, only one has done so in the absence of some legislative pronouncement regarding relevant public policy.

Before I review the decisions of our sister states, it is important to properly frame the cause of action in question. In its analysis, the majority relies on, and thus conflates, authority from other jurisdictions recognizing two distinct and separate causes of action: loss of consortium arising from a nonfatal parental injury and loss of consortium arising from a parent's wrongful death. These are very different causes of action and must be treated as such. In the present case, the issue is whether the court should recognize a cause of action for the loss of consortium arising from a nonfatal parental injury. It is therefore appropriate to rely on only those cases involving this same claim. A claim for the loss of consortium arising from a parent's wrongful death is an entirely different claim, and, therefore, to the extent the majority relies on authority from jurisdictions that recognize that claim, its reliance is misplaced.2

Mindful of this distinction, my review reveals that only seventeen states have recognized a claim for the loss of consortium arising from a nonfatal parental injury,3 with twenty-eight states and the District of Columbia declining to recognize such a claim.4 The law in the remaining five states is either unclear or those states have not addressed this question.5

Moreover, it is not enough to undertake a survey of our sister states and tally how many have or have not recognized a cause of action for loss of parental consortium. A deeper reading of the cases is required to develop a full understanding of the weight of authority. The majority states that "we no longer can conclude that the weight of authority supports our holding in Mendillo, much less that it does so overwhelmingly." Text accompanying footnote 15 of the majority opinion. The weight of authority, however, has remained largely unchanged since our decision in Mendillo. Indeed, all three states that have considered the viability of a cause of action for loss of parental consortium arising from a parent's nonfatal injury since Mendillo was decided in 1998 have declined to recognize this claim. See Lambert v. Franklin Real Estate Co., 37 S.W.3d 770, 780 (Ky. App. 2000); Harrington v. Brooks Drugs, Inc., 148 N.H. 101, 104, 808 A.2d 532 (2002); Taylor v. Beard, 104 S.W.3d 507, 511 (Tenn. 2003). But cf. Brenneman v. Board of Regents, 135 N.M. 68, 72, 84 P.3d 685 (App.) (allowing recovery for loss of parental consortium under New Mexico Tort Claims Act), cert. denied, 135 N.M. 51, 84 P.3d 668 (2003). The last state to recognize a claim for loss of parental consortium in connection with a parent's nonfatal injury was Ohio in 1993, five years before Mendillo. See Gallimore v. Children's Hospital Medical Center, 67 Ohio St. 3d 244, 255, 617 N.E.2d1052 (1993). Thus, there has been no change in the weight of authority since our decision in Mendillo.

With respect to the basis for creating such a cause of action, four of the seventeen states that recognize the claim have done so by statute.6 Thus, the majority cannot rely on these four states to support its decision to create a cause of action judicially because each of those states created the cause of action through acts of their legislatures. Furthermore, in at least one of these states, the legislative act superseded an earlier court decision expressly declining to recognize a cause of action for loss of parental consortium. Zorzos v. Rosen ex rel. Rosen, 467 So. 2d 305, 307 (Fla. 1985).

In the thirteen remaining states that have created, by decisional law, a cause of action for loss of parental consortium arising from a parent's nonfatal injury, twelve relied, at least in part, on wrongful death statutes allowing children to recover damages for loss of parental consortium.7 In all of those states, the courts reasoned that allowing such damages under the wrongful death statute was a legislative expression of the state's public policy and that it would be...

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