Hibpshman v. Prudhoe Bay Supply, Inc., S-1176

• Decision Date: 27 March 1987
• Docket Number: No. S-1176,S-1176
• Parties: Rachael HIBPSHMAN, Bethany Hibpshman, Terah Hibpshman and Micah Hibpshman, By and Through Thomas G. Hibpshman and Rebecca Hibpshman, natural parents and guardians, Appellants, v. PRUDHOE BAY SUPPLY, INC., and Alaska Explosives, Ltd., Appellees.
• Court: Alaska Supreme Court

Page 991

734 P.2d 991

55 USLW 2549

Rachael HIBPSHMAN, Bethany Hibpshman, Terah Hibpshman and Micah Hibpshman, By and Through Thomas G Hibpshman and Rebecca Hibpshman, natural parents and guardians, Appellants, v. PRUDHOE BAY SUPPLY, INC., and Alaska Explosives, Ltd., Appellees.

No. S-1176.

Supreme Court of Alaska.

March 27, 1987.

Rand D. Dawson, Anchorage, for appellants.

Howard Staley, Schaible, Staley, DeLisio & Cook, Inc., Fairbanks, for appellees.

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

OPINION

RABINOWITZ, Chief Justice.

I. BACKGROUND.

Thomas Hibpshman was severely injured while employed on the North Slope. He thereafter instituted suit against Prudhoe Bay Supply, Inc., and Alaska Explosives, Ltd. [hereinafter collectively referred to as "Prudhoe Bay" ], for damages for personal injuries, alleging negligent breach of a duty to provide premises free from unreasonable defects and hazards. In this same complaint, his wife Rebecca Hibpshman asserted a claim for loss of spousal consortium.

The four minor children of Thomas and Rebecca subsequently asserted a claim against the same defendants for loss of parental consortium. Prudhoe Bay moved in the alternative to dismiss the children's complaint on the ground that it failed to state a claim upon which relief can be granted, ¹ or to consolidate the children's claim with those of their parents. ²

The superior court entered a final order dismissing the loss of parental consortium claim, and the Hibpshman children now appeal that order, requiring us to determine whether minor children have an independent cause of action for loss of parental consortium resulting from injuries tortiously inflicted on their parent by a third person. ³

II. DID THE SUPERIOR COURT ERR IN GRANTING PRUDHOE BAY'S MOTION TO DISMISS?

A. Status of Court Decisions Regarding Claims for Loss of Parental Consortium.

Although a majority of the courts which have considered the issue have refused to recognize a child's cause of action based on loss of parental consortium resulting from negligent injury to a parent, ⁴ legal commentators have criticized the majority rule, ⁵ and six of the eleven state supreme courts which have considered the issue since the start of 1980 have endorsed the loss of parental consortium claim. ⁶

B. Alaska Law Concerning Injuries to Family Members.

In the past we have not hesitated, where appropriate, to adopt novel common law theories concerning injuries to family members. For example, we rejected the doctrines of interspousal and parental immunity in the context of negligence-based claims, even though most jurisdictions espoused the immunity defenses at the time of our decisions. See Cramer v. Cramer, 379 P.2d 95, 96 (Alaska 1963) (interspousal immunity); Hebel v. Hebel, 435 P.2d 8, 9 (Alaska 1967) (parental immunity). Moreover, in Schreiner v. Fruit, 519 P.2d 462, 466 (Alaska 1974), we concluded that a wife or husband has a right to sue for loss of consortium caused by negligently inflicted injury to his or her spouse. ⁷ In reaching this result, we reasoned:

[I]t would be inappropriate for this court to wait for legislative action in order to give recognition to the wife's right to sue for loss of consortium. Although Fruit and Equitable argue that neither husband nor wife should have a claim for relief from [sic] loss of consortium, we decline to adopt this position. A claim for relief for loss of consortium provides a means of recovery for an injury not otherwise compensable. It should be recognized as "compensating the injured party's spouse for interference with the continuance of a healthy and happy marital life." The interest to be protected is personal to the wife, for she suffers a loss of her own when the care, comfort, companionship, and solace of her spouse is denied her. The basis for recovery is no longer the loss of services, but rather the injury to the conjugal relation. We therefore hold that the claim for relief for loss of consortium, in both husband and wife, should be given recognition in Alaska.

Id. at 465-66 (footnotes omitted).

Of particular importance to the resolution of the issue presented in this appeal is the Alaska statute that expressly specifies that loss of consortium is an element of the damages recoverable in a wrongful death action. AS 09.55.580 provides in part:

(a) When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had the person lived, against the latter for an injury done by the same act or omission.... The amount recovered, if any, shall be exclusively for the benefit of the decedent's spouse and children when the decedent is survived by a spouse or children, or other dependents....

....

(c) In fixing the amount of damages to be awarded under this section, the court or jury shall consider all the facts and circumstances and from them fix the award at a sum which will fairly compensate for the injury resulting from the death. In determining the amount of the award, the court or jury shall consider but is not limited to the following:...

(4) loss of consortium....

C. A Minor Child's Claim For Loss of Parental Consortium in Alaska.

To a significant extent, our decision today to accord legal recognition to a minor child's claim for loss of parental consortium was foreshadowed by our decisions in Fruit, Cramer, and Hebel, as well as by subsection (c)(4) of our wrongful death statute. In reaching this result, we find the analysis of those decisions which have recognized the cause of action more persuasive than that of the decisions which have not. ⁸ Our specific reasons for recognizing a claim for loss of parental consortium follow.

Prudhoe Bay does not dispute that children of injured parents do themselves suffer an actual injury. When a parent is seriously injured, his or her child suffers a loss of enjoyment, care, guidance, love and protection, and is also deprived of a role model. Theama v. City of Kenosha, 117 Wis.2d 508, 344 N.W.2d 513, 516 (1984). Even courts that deny the parental consortium cause of action have acknowledged the reality of such emotional and psychological injury to the child, ⁹ and the Alaska legislature has implicitly done so in allowing recovery by children for loss of consortium under Alaska's wrongful death statute. ¹⁰

Precluding minor children from maintaining a cause of action for loss of parental consortium arising from their parent's injury would, in our view, be inconsistent with the legislature's authorization of such recovery when the parent dies, and with our prior holding in Fruit that a husband or wife may recover damages for loss of consortium when an injured spouse survives. The claim for loss of parental consortium presented in this case is not sufficiently distinguishable from either spousal consortium claims in injury cases or children's consortium claims in death cases to warrant non-recognition. ¹¹ By this holding we expressly reject the arguments against recognition of the parental consortium cause of action advanced by Prudhoe Bay. We will address each of these arguments in turn.

Prudhoe Bay asserts that permitting claims for parental consortium would augment rather than alleviate any injury to intrafamilial relationships because allowing independent recovery by the child--and thus guarding the child against the possibility that the parents may not spend their financial resources for the child's benefit--disrupts the normal course of parent-child relations in which the parents have full discretion regarding family expenditures. We find this argument meritless. In the circumstances at bar, the possibility of a threat to family harmony is no different from that which arises in other cases involving family litigation, including wrongful death actions. See Hay v. Medical Center Hosp., 145 Vt. 533, 496 A.2d 939, 943 (1985). The Alaska legislature has specifically provided for independent recoveries by family members in wrongful death suits, and thus impliedly rejected family harmony as a significant threat. See AS 09.55.580(a). Moreover, we expressly rejected potential intrafamilial conflicts as a ground for denying relief when we abolished both interspousal immunity, see Cramer, 379 P.2d at 96, and parental immunity with respect to the negligent injury of a child. See Hebel, 435 P.2d at 8. As the Hibpshman children observe, these types of actions are surely more disruptive of family relationships than a suit involving consortium claims against a third person. ¹²

Prudhoe Bay additionally asserts that we should defer to the legislature on this issue because of the significant policy considerations involved. However, we faced a similar contention in Fruit in the context of expanding spousal consortium claims and explicitly refused to await legislative action. See 519 P.2d at 465. Moreover, loss of consortium has been repeatedly recognized as a cause of action created and developed by the courts. ¹³ We have long recognized our responsibility to adapt the common law to the needs of society as justice requires where the legislature has not spoken. ¹⁴

The parties also dispute whether the difficulty of ascertaining the child's true damages should bar recognition of the parental consortium claim. Prudhoe Bay cites both the speculative nature of the child's intangible damages and the danger of double recovery--that is, for the loss to the parent from his or her inability to care for the children and for the children's loss from the parent's inability to care for them--as militating against recognition of the cause of action.

These arguments are hereby rejected. First, in regard to damage claims for loss of spousal consortium, we have indicated that concern about the purported speculative nature of such claims is overstated and "is inherent in the nature of a jury's...