Ferriter v. Daniel O'Connell's Sons, Inc.

• Decision Date: 09 September 1980
• Citation: 413 N.E.2d 690,381 Mass. 507
• Parties: , 11 A.L.R.4th 518 Judith A. FERRITER et al. 1 v. DANIEL O'CONNELL'S SONS, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 690

413 N.E.2d 690

381 Mass. 507, 11 A.L.R.4th 518

Judith A. FERRITER et al. ¹ v. DANIEL O'CONNELL'S SONS, INC.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Feb. 6, 1980.

Decided Sept. 9, 1980.

Morton J. Sweeney, Springfield, for plaintiffs.

Gerard L. Pellegrini, Springfield, for defendant.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

The plaintiffs, Judith A. Ferriter and her minor children, Jason R. and Leah N., filed a complaint and demand for jury trial on June 7, 1979, in the Superior Court for Hampden County. The complaint alleged that the plaintiffs' husband and father, Michael Ferriter, was seriously injured as a result of the negligent, wilful, wanton and reckless conduct of the defendant, Daniel O'Connell's Sons, Inc. (O'Connell). The complaint alleges that observing Michael's injuries has caused the plaintiffs to suffer mental anguish and that as a result of Michael's injuries their mental and physical health has been impaired. Furthermore, the plaintiffs allegedly have suffered loss of consortium and society. Thus, the plaintiffs prayed for damages of $3,000,000. On July 5, 1979, the defendants moved for summary judgment. The parties on September 26 filed a statement of agreed facts. On October 3, a judge of the Superior Court denied the motion on the claims for loss of consortium and society, but granted the defendant's motion on the claims for mental anguish and impaired health. The judge reported the case pursuant to Mass.R.Civ.P. 64, 365 Mass. 831 (1974), for a determination of the propriety of his rulings. We granted the plaintiffs' application for direct appellate review. We affirm the judge's first ruling, but reversed the second ruling.

According to the statement of agreed facts, the plaintiffs are the wife and two children, aged five and three, of Michael Ferriter. While working as a carpenter for the defendant, Michael was seriously injured on May 18, 1979. A one- to-two-hundred pound load of wood beams, which was hoisted in a nylon sling from the boom of a crane, fell fifty feet, and at least one beam struck Michael on the neck. The persons hoisting the lumber, operating the crane, monitoring site safety, and supervising the work were O'Connell employees. The defendant also supplied the materials and equipment used.

Since the accident, Michael Ferriter has been hospitalized and paralyzed from the neck down. The plaintiffs first saw him in this condition in the hospital. They neither witnessed the accident nor came on the scene of the accident when Michael was there. Michael receives $211.37 a week in workmen's compensation benefits from O'Connell's insurer. Although the plaintiffs fall within the statutory presumption of dependency in G.L. c. 152, § 35A, they receive no benefits because Michael's compensation exceeds $150 a week. See G.L. c. 152, § 35A.

The defendant employer attacks the plaintiffs' claims in two respects. First, it asserts that the counts for mental anguish and impaired health fail to state a claim upon which relief can be granted. Second, the defendant argues that the Workmen's Compensation Act, G.L. c. 152, bars the plaintiffs' claims.

1. The employer does not assert that the wife's and children's counts for loss of consortium and society fail to state a claim upon which relief can be granted. Although a wife's right to recover for loss of consortium is well established, Diaz v. Eli Lilly & Co., 364 Mass. 153, 302 N.E.2d 555 (1973), a child's right to recover for loss of a parent's society and companionship through a defendant's negligence is problematic. Id. at 165 & n.41, 302 N.E.2d 555. We consider whether such a right exists before addressing the issue of whether, on these facts, a cause of action is barred by G.L. c. 152.

The question whether a child can recover for loss of a parent's companionship and society caused by a defendant's negligence is a matter of first impression in Massachusetts. However, in Feneff v. New York Cent. & Hudson River R.R., 203 Mass. 278, 281-282, 89 N.E. 436 (1909), rejecting a wife's claim for loss of consortium for injuries to her husband, the court in essence equated a wife's interest in spousal consortium with a minor child's interest in parental society. In Diaz v. Eli Lilly & Co., 364 Mass., supra at 163, 302 N.E.2d 555, we characterized as "vulnerable" the Feneff court's reasoning supporting rejection of the wife's claim. We recognized a wife's right to recover for loss of consortium resulting from personal injuries to the husband. The wife's interest encompassed not only sexual relations with her husband, but also his society and companionship. Diaz, supra at 161, 302 N.E.2d 555. The combination of Diaz and the dicta in Feneff force recognition that a minor child has a strong interest in his parent's society, an interest closely analogous to that of the wife in Diaz. The court in Diaz expressly reserved the question whether a child has a right to recover for loss of a parent's society caused by a defendant's negligence. Id. at 165 & n.41, 302 N.E.2d 555. We are skeptical of any suggestion that the child's interest in this setting is less intense than the wife's.

As in Diaz, to take the measure of the present action, we consider this question in the perspective of the common law. Under the doctrine of paterfamilias, an injury to the family was an injury to the father. Neither children nor wives could bring actions in their own names to recover for personal injury. The action and any damages obtained belonged to the father. ² The law also furnished the father with various actions to protect family relationships. In Diaz, supra at 154-158, 302 N.E.2d 555, we traced the evolution of claims for loss of spousal consortium. Though parallel in many respects, the history of actions for interference with the parent-child relationship has taken distinct turns.

A father has traditionally had actions for abduction and seduction of his child. ³ Both causes were founded upon an analogy with a master's action for enticement of his servant. ⁴ In order to prevail, the father had to show actual loss of his child's services. W. Prosser, Torts § 124 at 882 (4th ed. 1971). With time, a doctrine of constructive loss of services developed. If the child was a minor and the father had a right to his or her services the child was presumed to be his servant. Kennedy v. Shea, 110 Mass. 147, 150 (1872). Thus, loss of services became a technical requirement, an acknowledged fiction. See, e. g., Blagge v. Ilsley, 127 Mass. 191, 199 (1879). Once the parent established that the defendant's act made the child mentally or physically incapable of rendering services, the court could award damages for emotional harm done the parent. Id. at 197-198. See Cook v. Bartlett, 179 Mass. 576, 579-580, 61 N.E. 266 (1901); Stowe v. Heywood, 7 Allen 118, 122 (1863). In abduction cases, the father could recover for loss of the child's society. Stowe v. Heywood, supra at 122-123. See Worcester v. Marchant, 14 Pick. 510 (1834); W. Prosser, supra, § 124 at 883; Restatement (Second) of Torts § 700, Comment g (1977). Such recovery appears also to have been available in seduction cases. Stowe v. Heywood, supra at 122. See W. Prosser, supra, § 124 at 885 & n.99; but see Restatement (Second) of Torts § 701, Comment e (1977).

In addition to the actions for abduction and seduction, our cases recognized a further consequence of the master-servant analogy. "The remedy, on principle, is equally clear whether the injury is produced by beating and wounding, by enticing away, or by seduction." Blagge v. Ilsley, supra at 198. See Bradstreet v. Wallace, 254 Mass. 509, 511, 150 N.E. 405 (1926). A third person's tortious infliction of injury upon a child gave the parent ⁵ a cause of action for loss of services. Even a negligent act would suffice. Horgan v. Pacific Mills, 158 Mass. 402, 33 N.E. 581 (1893); Wilton v. Middlesex R.R., 125 Mass. 130 (1878). Moreover, the parent could recover for labor performed and expenses reasonably incurred in the child's care. Dennis v. Clark, 2 Cush. 347 (1848). As in actions for abduction and seduction, the requirement of actual loss of services withered, becoming a mere fiction. Id. See W. Prosser, supra, § 125 at 890. However, it does not appear that damages for the parent's mental suffering or for loss of the child's society were available when the gravamen of the parent's claim was physical injury to the child. See Restatement (Second) of Torts § 703, Comment h (1977). But see W. Prosser, supra, § 125 at 889-890, and cases cited in n.58. See also Dennis v. Clark, supra. ⁶

These cases supply analogous precedent for a child's right to recover for loss of a parent's society resulting from the defendant's negligence. The common law has traditionally recognized a parent's interest in freedom from tortious conduct harming his relationship with his child. As in husband-wife relations, albeit to a more limited extent, our law has compensated parents for sentimental as well as economic injuries. ⁷ If the common law sometimes protects a parent's sentiments in the parent-child relationship, we might expect similar protection for the fledgling needs of the child. But the common law has been nearly silent concerning a child's right to recover damages for loss of parental society. Perhaps because courts would not stand the master-servant analogy on its head, with the child as master, ⁸ the question of the child's action does not appear in our cases until 1931. Cole v. Cole, 277 Mass. 50, 177 N.E. 810 (1931). Furthermore, the question was not clearly presented until Nelson v. Richwagen, 326 Mass. 485, 95 N.E.2d 545 (1950). See White v. Thomson, 324 Mass. 140, 143, 85 N.E.2d 246 (1949).

In Nelson, a minor child sought relief against the defendant for enticing her mother to desert her and her father. The child prayed for damages for loss of support, maintenance and...