Durepo v. Fishman

• Decision Date: 28 October 1987
• Citation: 533 A.2d 264
• Parties: Patricia DUREPO et al. v. Eric S. FISHMAN.
• Court: Maine Supreme Court

Page 264

533 A.2d 264

56 USLW 2276

Patricia DUREPO et al. v. Eric S. FISHMAN.

Supreme Judicial Court of Maine.

Argued June 3, 1987.

Decided Oct. 28, 1987.

Joel C. Martin (orally), Thomas A. Cox, Petruccelli, Cohen, Erler & Cox, Portland, for plaintiffs.

Jonathan W. Brogan (orally), David C. Norman, Norman, Hanson & DeTroy, Portland, for defendant.

Before McKUSICK, C.J., and NICHOLS, ROBERTS ^*, GLASSMAN, SCOLNIK and CLIFFORD, JJ.

McKUSICK, Chief Justice.

This case invites us to declare for the first time that in Maine a minor child has an independent right of action for loss of parental consortium against a third person who negligently causes physical injury to his mother. We decline that invitation.

Acting solely on behalf of their minor children Chris and Travis, Patricia Durepo and her husband sued defendant Eric Fishman, a practicing physician, for the children's loss of their mother's "love, society, companionship, guidance and care" by reason of physical injuries suffered by the mother from defendant's alleged medical malpractice. The Superior Court (Aroostook County) dismissed the children's complaint, pursuant to M.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted. We affirm.

"Two characteristics of the claim at issue here are that the injury to the plaintiff [children] occurs as a consequence of an injury to another person, and that this consequential injury is to plaintiff[s'] psychic interests rather than to [their] physical person or tangible property." Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 548, 652 P.2d 318, 321 (1982). In other jurisdictions the majority rule by a wide margin is that stated in Restatement (Second) of Torts § 707A (1977) rejecting a child's independent cause of action for that indirect injury to his psychic interests. 59 Am.Jur.2d Parent and Child § 96 (1987). See also Sawyer v. Bailey, 413 A.2d 165, 168 (Me.1980) (dictum); Kershner v. Beloit Corp., 611 F.Supp. 943, 946-47 (D.Me.1985). Although some recent cases have departed from the Restatement rule, ¹ we do not find any compelling legal principles sweeping us along to permit in Maine a child's independent recovery in these circumstances. On the contrary, respect for the differing functions and capabilities of the legislative and judicial branches impel us to conclude that on this particular issue we should stay our hand and defer to the legislature's consideration of the public policy issues involved in the proposed extension of tort liability.

It is true of course that this court would not exceed the scope of its powers as a common law court by newly creating for Maine a child's cause of action for the loss of parental society and affection. See Potter v. Schafter, 161 Me. 340, 341, 211 A.2d 891, 892 (1965). See also MacDonald v. MacDonald, 412 A.2d 71, 74 n. 4 (Me.1980). But the possession of power does not by itself justify its use. Cf. DeAngelis v. Lutheran Medical Center, 84 A.D.2d 17, 24, 445 N.Y.S.2d 188, 194 (1981), aff'd, 58 N.Y.2d 1053, 462 N.Y.S.2d 626, 449 N.E.2d 406 (1983). We decline to expand dramatically the common law of Maine in this area in which judicial decree is no substitute for the exhaustive gathering of socio-economic facts and the public debate upon the import of those facts that would occur before the Maine Legislature enacted so sweeping an embellishment on the existing tort law of this state.

As appellants themselves accurately point out, "[a]t its heart, this case involves a question of public policy." Resolution of that question--whether existing tort liability should be extended to indemnify children for the psychic harm suffered when their parents are negligently injured--turns on a number of policy judgments that can be soundly made only after full consideration of legislative or nonadjudicative facts. Those judgments the elected legislature, directly accountable to the citizens of Maine, is far better situated to make than is the unelected judiciary. As the Supreme Court of Oregon observed in an opinion refusing to recognize the cause of action for loss of parental consortium:

There is another reason not to explain the court's understanding of the existing state of the law by the court's views of desirable social policy. Legislators, unlike judges, may change the law at any time ... simply upon changes in personnel and in the political agenda. That is what elections and legislative debates are for.... [P]roponents or opponents of a social policy ... should be free to debate the merits untrammeled by a court's arguments why its view of the existing law represents the better policy.

Norwest v. Presbyterian Intercommunity Hospital, 293 Or. at 553, 652 P.2d at 323-24. The legislature, unlike this court, is institutionally equipped to gather information on the many relevant questions as, for example, (i) whether there is any practical necessity for creating a separate cause of action for a child whose parent has been negligently injured, (ii) what limiting principles as, for example, the age of the child should circumscribe such a cause of action, (iii) what impact would such a cause of action have on insurance rates and other costs to the general public, and (iv) what, if any, limit on allowable damages should be imposed as a matter of social policy. Once the legislature has assembled the answers to these questions, along with all other relevant legislative facts, and has publicly debated the ultimate issue, it can render what is essentially a political judgment: Should Maine have a cause of action of the sort urged here by the appellant plaintiffs and, if so, what should be its contours?

Some proponents of this cause of action argue that it would be anomalous for us to decline to expand the common law to permit a child to recover for loss of consortium when his injured parent remains alive, considering the fact that our Maine wrongful death statute ² provides a certain amount of recovery of that same nature if the injured parent dies. Rather than creating an anomaly, the existence of the wrongful death statute as a result of careful legislative decision-making in original enactment and subsequent amendment ³ demonstrates the practical wisdom of leaving to the legislature the line-drawing job of defining the scope of tort liability in this area. When as here that job depends so overwhelmingly on socio-economic facts and questions of desirable social policy, rather than on the application of established legal principles, the legislature, not the court, should draw those lines.

The entry is:

Judgment affirmed.

SCOLNIK and CLIFFORD, JJ., concur.

NICHOLS, Justice, with whom GLASSMAN, Justice, joins, dissenting.

I respectfully dissent. I would recognize the right of these minor children to pursue their action for the loss of the comfort and companionship of their mother against a third person who, they allege, negligently caused her injury. Today's majority asserts that the line-drawing depends so overwhelmingly on socio-economic factors that it should shy away from the task. This is indeed a weak reed to support the denial of any remedy for these children's significant loss.

In the first place, we should not forget the guarantee made to the children in the Declaration of Rights in the Maine Constitution:

Every person for an injury done him in his person ... shall have remedy by due course of law....

(Me. Const., art. I, § 19.) Certainly the law of torts has no higher purpose than "to afford compensation for injuries sustained by one person as the result of the conduct of another." Prosser and Keeton on Torts 6 (5th ed. 1984).

In the second place, this Court historically has not hesitated to deal with similar questions of tort liability and courageously has recognized causes of action in areas where the law previously afforded no precedent. Illustratively, in Davies v. City of Bath, 364 A.2d 1269, 1273 (Me.1976), our Court abrogated the doctrine of governmental immunity with all its economic consequences. In Estate of Berthiaume v. Pratt, 365 A.2d 792, 794 (Me.1976), our Court did not hesitate to declare that a violation of one's right to privacy was an actionable tort, notwithstanding manifold questions of desirable social policy. Even though in Black v. Solmitz, 409 A.2d 634, 639 (Me.1979), our Court overruled the doctrine of parental immunity earlier recognized in Downs v. Poulin, 216 A.2d 29, 30 (Me.1966), in neither case did the Court see a need for the Legislature to debate publicly the question and then draw the lines of liability in tort. Instead, the Court met those questions head-on. ¹

In the third place, the right of these little children to seek a remedy for their loss is one that should be judicially recognized now. Maine should be in step with the times.

Most courts that over the years have considered this issue may have declined to recognize a child's cause of action for loss of parental consortium, ² yet a new trend is emerging. A majority of the courts that since 1980 have addressed this issue have recognized a child's right to recover for loss of parental consortium. ³ Additionally, a substantial number of commentators support the recognition of this cause of action. ⁴

Some argue, nevertheless, that this cause of action should not be recognized because (1) litigation and multiple claims may increase; (2) insurance costs may increase; (3) damages are remote and uncertain; (4) there is a danger of double recovery by parent and child; and (5) the judiciary should defer to the legislature. The arguments advanced by those courts and commentators who favor recognizing this cause of action are much more persuasive than are these contentions.

First, increased litigation, multiple actions and increased insurance costs may, of course, result when any new cause of action is recognized. These are not unique to this particular claim for relief. Hay v. Medical Center Hosp., 145 Vt. at 539, 496 A.2d at 943 (1983);...