Guenther by Guenther v. Stollberg

Decision Date12 February 1993
Docket NumberNo. S-90-551,S-90-551
Citation495 N.W.2d 286,242 Neb. 415
Parties, 61 USLW 2505 William GUENTHER, a Minor, by Marvin GUENTHER, His Father and Next Friend, Appellant, v. Shelly R. STOLLBERG and Gail Stollberg, Appellees.
CourtNebraska Supreme Court

Syllabus by the Court

Minors: Actions. A minor child has no common-law cause of action for the loss of the consortium of a nonfatally injured parent.

Steven M. Watson, P.C., of Marks & Clare, Omaha, and Thomas B. Donner, West Point, for appellant.

Donald D. Schneider, of Don Schneider Law Office, Fremont, for appellees.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

PER CURIAM.

The minor child, appellant William Guenther, sued the appellees, Shelly R. and Gail Stollberg, through his father and next friend, Marvin Guenther, alleging that the Stollbergs negligently but nonfatally injured the child's mother and thereby caused him to suffer the loss of her consortium. The district court concluded the child had not stated a cause of action, sustained the Stollbergs' demurrer, and after the child elected not to amend, dismissed his petition. By asserting the dismissal was erroneous, the child invites us to recognize a cause of action for a minor child's loss of a negligently injured parent's consortium. We decline the invitation and affirm the judgment of the district court.

We have defined consortium to mean comfort, society, love, and protection. Creason v. Myers, 217 Neb. 551, 350 N.W.2d 526 (1984), citing Sowle v. Sowle, 115 Neb. 795, 215 N.W. 122 (1927), and Larsen v. Larsen, 115 Neb. 601, 213 N.W. 971 (1927). We have long held that a husband may recover for the loss of his nonfatally injured wife's consortium, Omaha & R. V. R. Co. v. Chollette, 41 Neb. 578, 59 N.W. 921 (1894), and permit a wife to recover for the loss of her nonfatally injured husband's consortium, Anson v. Fletcher, 192 Neb. 317, 220 N.W.2d 371 (1974). But while we have recognized that a parent has a cause of action for the loss of a nonfatally injured minor child's services, Macku v. Drackett Products Co., 216 Neb. 176, 343 N.W.2d 58 (1984), we have neither been cited to nor are we aware of any case in which we have permitted a parent to recover for the loss of a nonfatally injured minor child's consortium. Although its recognition has been advocated by some academicians, neither was a cause of action for the loss of a nonfatally injured parent's consortium known at common law. See, e.g., W. Page Keeton et al., Prosser and Keeton on The Law of Torts § 125 at 935-36 (5th ed. 1984); Maureen Ann Delaney, Comment, What About the Children? Toward an Expansion of Loss of Consortium Recovery in the District of Columbia, 41 Am.U.L.Rev. 107 (1991); David P. Dwork, 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 (1976).

The Supreme Judicial Court of Massachusetts became the first court to succumb to these entreaties. See Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980). Other states soon followed. See, e.g., Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (1981).

As best we can determine, 13 states now recognize a common-law claim for loss of parental consortium. See, Hibpshman v. Prudhoe Bay Supply, Inc., 734 P.2d 991 (Alaska 1987); Villareal v. State, Dept. of Transp., 160 Ariz. 474, 774 P.2d 213 (1989); Higley v. Kramer, 581 So.2d 273 (La.App.1991), writ denied 583 So.2d 483 (La.); Ferriter v. Daniel O'Connell's Sons, Inc., supra; Berger v Weber, supra; Pence v. Fox, 248 Mont. 521, 813 P.2d 429 (1991); Williams v. Hook, 804 P.2d 1131 (Okla.1990); Reagan v. Vaughn, 804 S.W.2d 463 (Tex.1990); Hay v. Medical Center Hospital of Vermont, 145 Vt. 533, 496 A.2d 939 (1985); Ueland v. Pengo Hydra-Pull Corp., 103 Wash.2d 131, 691 P.2d 190 (1984); Belcher v. Goins, 184 W.Va. 395, 400 S.E.2d 830 (1990); Theama v. City of Kenosha, 117 Wis.2d 508, 344 N.W.2d 513 (1984); Nulle v. Gillette-Campbell Fire Bd., 797 P.2d 1171 (Wyo.1990). See, also, Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981), modified on other grounds, Audubon-Exira v. Ill. Cent. Gulf R. Co., 335 N.W.2d 148 (Iowa 1983) (limiting recovery to that afforded by controlling statute which Weitl improperly construed).

The reasons given for recognizing the action include that it is just the right thing to do; that a tort-feasor as a matter of policy should be held accountable for all damages resulting from his or her wrongful acts, including injuries to familial relationships, which are significant and worthy of compensation, see, e.g., Reagan v. Vaughn, supra; that it is inherently inconsistent to permit children to recover for the wrongful death of a parent but not for nonfatal injuries to a parent which also deprive them of love, companionship, and the like, see, e.g., Berger v. Weber, supra; and that children possess rights comparable to those of the rest of society and any restriction of these rights must be justified by strong public policy, see, e.g., Ferriter v. Daniel O'Connell's Sons, Inc., supra.

Nonetheless, many jurisdictions have chosen not to recognize a cause of action for loss of parental consortium. See, DeLoach v. Companhia de Navegacao Lloyd Brasileiro, 782 F.2d 438 (3d Cir.1986) (maritime law); Jones v. Lifespring, Inc., 713 F.Supp. 426 (D.D.C.1988); Green v. A.B. Hagglund and Soner, 634 F.Supp. 790 (D.Idaho 1986) (applying Idaho law); Gray v. Suggs, 292 Ark. 19, 728 S.W.2d 148 (1987); Borer v. American Airlines, Inc., 19 Cal.3d 441, 563 P.2d 858, 138 Cal.Rptr. 302 (1977); Lee v. Colorado Dept. of Health, 718 P.2d 221 (Colo.1986); Hinde v. Butler, 35 Conn.Supp. 292, 408 A.2d 668 (1979); Zorzos v. Rosen By and Through Rosen, 467 So.2d 305 (Fla.1985); W.J. Bremer Co. v. Graham, 169 Ga.App. 115, 312 S.E.2d 806 (1983), writ denied 252 Ga. 36, 312 S.E.2d 787 (1984); Dearborn Fabricating & Engin. v. Wickham, 551 N.E.2d 1135 (Ind.1990); Schmeck v. City of Shawnee, 231 Kan. 588, 647 P.2d 1263 (1982); Durepo v. Fishman, 533 A.2d 264 (Me.1987); Gaver v. Harrant, 316 Md. 17, 557 A.2d 210 (1989); Salin v. Kloempken, 322 N.W.2d 736 (Minn.1982); Barbera v. Brod-Dugan Co., 770 S.W.2d 318 (Mo.App.1989); Russell v. Salem Transportation Co., Inc., 61 N.J. 502, 295 A.2d 862 (1972); De Angelis v. Lutheran Medical Center, 58 N.Y.2d 1053, 449 N.E.2d 406, 462 N.Y.S.2d 626 (1983); Vaughn v. Clarkson, 324 N.C. 108, 376 S.E.2d 236 (1989); Morgel v. Winger, 290 N.W.2d 266 (N.D.1980); High v. Howard, 64 Ohio St.3d 82, 592 N.E.2d 818 (1992); Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 652 P.2d 318 (1982); 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.App.1988).

Among the reasons advanced for not doing so are that a child has no legal entitlement to his or her parent's love, guidance, and companionship, see, e.g., High v. Howard, supra; that such an action would result in exposing the tort-feasor to the possibility of having to pay double damages, see, e.g., Russell v. Salem Transportation Co., Inc., supra, and Borer v. American Airlines, Inc., supra; and that the monetary value of a parent's guidance, companionship, and affection is simply too speculative for damages to be assessed, see, e.g., Borer v. American Airlines, Inc., supra, and Russell v. Salem Transportation Co., Inc., supra.

Perhaps one of the more thoughtful analyses of the problems attendant to recognizing the cause of action is found in Hoesing v. Sears, Roebuck & Co., 484 F.Supp. 478 (D.Neb.1980). The plaintiffs therein sought to recover damages for injuries caused to their parents by the defendant. In predicting that this court would follow the majority rule and deny recovery, the Hoesing court noted that the resolution of whether to permit a cause of action for loss of parental consortium must be based on public policy considerations.

"Plaintiff's claim, viewed in the abstract and divorced from its surroundings, carries both logical and sympathetic appeal.... Certain aspects of spousal relationship are similar to those of the parent-child relationship, and there can be little question of the reality of the loss suffered by a child deprived of the society and care of its parent. Nevertheless our decision must take into account considerations in addition to logical symmetry and sympathetic appeal.... [N]ot every loss can be made compensable in money damages, and legal causation must terminate somewhere. In delineating the extent of a tortfeasor's responsibility for damages under the general rule of tort liability (Civ.Code § 1714), the courts must locate the line between liability and nonliability at some point, a decision which is essentially political."

Hoesing, 484 F.Supp. at 478-79, quoting Borer v. American Airlines, Inc., supra.

The Hoesing court also observed:

In determining whether to recognize a cause of action for loss of parental consortium, this Court must consider the intangible, non-pecuniary nature of consortium loss. The companionship and guidance of a parent cannot be regained by a monetary award. The loss that a child suffers is such that he can never be compensated for it. Allowing the plaintiff to recover damages for loss of parental consortium creates a future benefit for the child which is essentially unrelated to the loss suffered....

In addition to the non-compensatory nature of any damages award, the Court must also consider the social burden of providing damages for loss of parental consortium. The burden of paying awards for loss of consortium will be borne by the public generally in increased insurance premiums.... An additional social cost is the expenditure of valuable judicial resources in litigating these claims. This cost would be substantial, since a claim of loss of consortium would be raised in any case involving a serious injury to a...

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