Gaver v. Harrant

• Decision Date: 01 September 1988
• Docket Number: No. 57,57
• Citation: 557 A.2d 210,316 Md. 17
• Parties: Khristin Therese GAVER et al. v. Roman J. HARRANT et al. ,
• Court: Maryland Court of Appeals

Page 17

316 Md. 17

557 A.2d 210

Khristin Therese GAVER et al. v. Roman J. HARRANT et al.

No. 57, Sept. Term, 1988.

Court of Appeals of Maryland.

May 4, 1989.

Luiz R.S. Simmons (Auerbach & Simmons, both on brief), Silver Spring, for petitioners.

Michael F. Flynn, Jr. (Gerard J. Emig, Gleason & Flynn, Chtd., all on brief), Rockville, for respondents.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

MURPHY, Chief Judge.

The issue presented is whether Maryland should adopt a cause of action permitting a minor child to recover money damages for the loss of parental society and affection when the parent is disabled by the negligence of a third party.

I.

On April 6, 1985, a 2400-pound free-standing post and beam structure collapsed on Stephen Gaver, father of Khristin and John Gaver. Mr. Gaver was severely injured, sustaining permanent injuries to his back, body and limbs. He can no longer work, and will continue to experience physical pain indefinitely.

The accident occurred while Gaver was assisting his neighbor, Roman Harrant, in the construction of a post and beam trellis. Mr. and Mrs. Gaver, on behalf of themselves and their minor children, filed suit against Harrant in the Circuit Court for Frederick County. The complaint contained five counts, labeled negligence, strict liability, gross negligence, loss of consortium, and loss of society and affection--minor children.

Harrant moved to dismiss the minor children's claim on the ground that the cause of action was not recognized in Maryland. The court (Smith, J.) granted the motion, and the minor children appealed. ¹ We granted certiorari before consideration by the Court of Special Appeals in order to consider this important question.

II.

A cause of action allowing a minor child to recover for loss of a parent's society and affection was unknown at early common law. The doctrine of pater familias held that only the husband/father had legal capacity to sue for injuries to members of his family. Note, The Child's Right to Sue for Loss of a Parent's Love, Care and Companionship Caused By Tortious Injury to the Parent, 56 B.U.L.Rev. 722, 742 (1976). The wife and children had no right to sue, apparently because they, as "inferior parties" in the relationship, had no rights to the services of the husband/father. Note, Compensating the Child's Loss of Parental Love, Care, and Affection, 1983 Ill.L.Rev. 293, 294 (1983).

Over time, the husband's cause of action for a wife's services gradually broadened into an action for loss of "consortium," which included "love, affection, protection, support, services, companionship, care, society, and ... sexual relations." Id. at 295. The scope of consortium claims was broadened in Hitaffer v. Argonne Co., 183 F.2d 811 (D.C.Cir.1950), cert. denied, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624 (1950), when the court held that the wife also had a loss of consortium claim when her husband was negligently injured. Since that time, most of our sister states have recognized a wife's loss of consortium claim. As to Maryland, see Deems v. Western Maryland Ry., 247 Md. 95, 231 A.2d 514 (1967), discussed infra. See also Note, supra, 1983 Ill.L.Rev. at 296.

A cause of action for a minor child's loss of parental society and affection due to negligent injury was first recognized in Berger v. Weber, 82 Mich.App. 199, 267 N.W.2d 124 (1978), aff'd, Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (1981). Five other states have since adopted the cause of action at common law. ² See Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980); Ueland v. Reynolds Metals Co., 103 Wash.2d 131, 691 P.2d 190 (1984); Theama by Bichler v. City of Kenosha, 117 Wis.2d 508, 344 N.W.2d 513 (1984); Hay v. Medical Center Hosp. of Vermont, 145 Vt. 533, 496 A.2d 939 (1985); Hibpshman v. Prudhoe Bay Supply, Inc., 734 P.2d 991 (Alaska 1987). See also, Salinas v. Ft. Washington Cabin Baggage Co., 725 S.W.2d 701 (Tex.1987) (court appears to implicitly accept the validity of the minor child's cause of action).

The great majority of courts, however, have refused to recognize the cause of action at common law. See Barbera v. Brod-Dugan Co., 770 S.W.2d 318 (Mo.Ct.App.1989); Vaughn v. Clarkson, 324 N.C. 108, 376 S.E.2d 236 (1989); Steiner by Steiner v. Bell Telephone Co., 358 Pa.Super. 505, 517 A.2d 1348 (1986), aff'd, 518 Pa. 57, 540 A.2d 266 (1988); Still By Erlandson v. Baptist Hosp., 755 S.W.2d 807 (Tenn.Ct.App.1988); Lewis v. Rowland, 287 Ark. 474, 701 S.W.2d 122 (1985); Zorzos v. Rosen by and through Rosen, 467 So.2d 305 (Fla.1985); Huter by Huter v. Ekman, 137 Ill.App.3d 733, 92 Ill.Dec. 369, 484 N.E.2d 1224 (1985); Sanders v. Mt. Sinai Hosp., 21 Ohio App.3d 249, 487 N.E.2d 588 (1985); W.J. Bremer Co. Inc. v. Graham, 169 Ga.App. 115, 312 S.E.2d 806 (1983); Versland v. Caron Transport, 206 Mont. 313, 671 P.2d 583 (1983); DeAngelis v. Lutheran Medical Center, 84 A.D.2d 17, 445 N.Y.S.2d 188 (1981), aff'd, 58 N.Y.2d 1053, 462 N.Y.S.2d 626, 449 N.E.2d 406 (1983); Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 652 P.2d 318 (1982); Salin v. Kloempken, 322 N.W.2d 736 (Minn.1982); Morgel v. Winger, 290 N.W.2d 266 (N.D.1980); Hinde v. Butler, 35 Conn.Sup. 292, 408 A.2d 668 (1979); Bradford v. Union Electric Co., 598 S.W.2d 149 (Mo.App.1979); Borer v. American Airlines, Inc., 19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858 (1977); Kelly v. United States Fid. & Guar. Co., 353 So.2d 349 (La.App.1977), app. dismissed, 357 So.2d 1144 (La.1978); General Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972); Russell v. Salem Transportation Company, 61 N.J. 502, 295 A.2d 862 (1972); Hoffman v. Dautel, 189 Kan. 165, 368 P.2d 57 (1962); Pleasant v. Washington Sand & Gravel Co., 262 F.2d 471 (D.C.Cir.1958); Juene v. Del. E. Webb Const. Co., 77 Ariz. 226, 269 P.2d 723 (1954), overruled on other grounds, City of Glendale v. Bradshaw, 108 Ariz. 582, 503 P.2d 803 (1972).

(A)

Courts rejecting the cause of action have generally followed one of three lines of reasoning. Some courts, on public policy grounds, have concluded that the legislature, and not the court, is the governmental body best suited to weigh the burdens of the proposed cause of action against the benefits. For example, in Duhan v. Milanowski, 75 Misc.2d 1078, 348 N.Y.S.2d 696, 702 (1973), the court held that

"[t]he principal objection of this court to the [cause of action], however, is the complete inadequacy of our judicial system to solve such a complex issue. Untested complaints and appeals are dull and clumsy tools to fashion a new legal form. Yet every facet of that form must ultimately be shaped by an Appellate Court decision. Decades can pass before the new principle of law is finally formed. The matter requires study in depth and resolution by a comprehensive statutory enactment."

Accord, Zorzos, supra; Huter, supra; Steiner, supra.

Other courts have rejected the cause of action based on their own perception of the necessity of its adoption. For example, in Salin v. Kloempken, 322 N.W.2d 736, 742 (Minn.1982), the court stated that

"... based on our own precedent and on considerations of public policy and the results that would obtain upon recognition of this type of claim, such as the additional burden placed on society through increased insurance costs and the added expense of litigation and settlement, and in the interest of limiting the legal consequences of a wrong to a controllable degree, a new cause of action on behalf of a child for the loss of parental consortium should not be recognized."

Accord, Hoffman, supra; Russell, supra; Borer, supra.

Other courts rejecting the child's cause of action have declined to consider policy grounds, focusing instead upon strictly legal considerations. In Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 652 P.2d 318 (1982), the court noted that:

"No doubt there are genuine wrongs that courts are ill suited to set right, and others that do not merit the social costs of litigation. But if these costs are to be the reason for denying an otherwise meritorious cause of action, that is one judgment to be made by legislatures rather than by courts. Courts exist to serve whatever rights people have, ...; it is not for them to weigh or 'balance' their own institutional concerns against the merits of such a right."

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* * *

"We therefore lay aside the pragmatic arguments adduced for and against a child's damage action for the disablement of a parent and turn to the question how plaintiff's claim relates to other comparable claims." Id. at 323-24 (footnote omitted).

The court discussed analogous causes of action available under existing state law, and noted that the child's claim involved two characteristics which are somewhat disfavored in tort law: 1) "the injury to the plaintiff occurs as a consequence of injury to another person, and [2) ] this consequential injury is to the plaintiff's psychic interests rather than to his physical person or tangible property." Id. at 321. The court ultimately held that the main obstacle to adoption of the cause of action was that, under Oregon law,

"... ordinarily negligence as a legal source of liability gives rise only to an obligation to compensate the person immediately injured, not anyone who predictably suffers loss in consequence of that injury, unless liability for that person's consequential loss has a legal source besides its foreseeability." Id. at 333.

(B)

Courts which have adopted the child's loss of parental society and affection cause of action have generally started from the premise that the child suffers a real and serious loss when a parent is injured. The Wisconsin Supreme Court, in Theama, supra, noted that:

"A child has an interest in the society and affection of his parent ... When the child is deprived of his parents' society, care, protection and affection he suffers a real injury ... [T]he child's loss ......