Hoesing v. Sears, Roebuck & Co.

• Citation: 484 F. Supp. 478
• Decision Date: 07 February 1980
• Docket Number: 79-0-192 and 79-0-195.,Civ. No. 79-0-191
• Court: U.S. District Court — District of Nebraska
• Parties: Bonnie L. HOESING, Next Friend and Mother of Rose Marie Hoesing, Ann Marie Hoesing, and Jeffrey F. Hoesing, Minors, Plaintiff, v. SEARS, ROEBUCK & CO., a New York Corporation, Defendant. Alan F. HOESING, Plaintiff, v. SEARS, ROEBUCK & CO., a New York Corporation, Defendant. Robert J. ALLISON, Next Friend and Father of Chad R. Allison and Scott D. Allison, Minors, Plaintiff, v. SEARS, ROEBUCK & CO., a New York Corporation, Defendant.

484 F. Supp. 478

Bonnie L. HOESING, Next Friend and Mother of Rose Marie Hoesing, Ann Marie Hoesing, and Jeffrey F. Hoesing, Minors, Plaintiff, v. SEARS, ROEBUCK & CO., a New York Corporation, Defendant.

Alan F. HOESING, Plaintiff, v. SEARS, ROEBUCK & CO., a New York Corporation, Defendant.

Robert J. ALLISON, Next Friend and Father of Chad R. Allison and Scott D. Allison, Minors, Plaintiff, v. SEARS, ROEBUCK & CO., a New York Corporation, Defendant.

Civ. Nos. 79-0-191, 79-0-192 and 79-0-195.

United States District Court, D. Nebraska.

February 7, 1980.

Philip H. Robinson, Jr., Bellevue, Neb., for plaintiff.

Jack W. Marer, Omaha, Neb., for defendant.

MEMORANDUM

DENNEY, District Judge.

This matter comes before the Court upon the defendant's motion to dismiss.

This is a diversity action in which the plaintiffs seek to recover damages for injuries caused to their parents by the defendant. The defendant contends that this suit should be dismissed because under Nebraska law a child has no cause of action against a third party for damages for nonfatal injuries to his parent. The plaintiffs recognize that the Nebraska Supreme Court has never ruled on the existence of such a cause of action, but contend that the Nebraska Supreme Court's rulings in other areas suggest that the state supreme court would create such a cause of action if given the opportunity.

Since the Nebraska Supreme Court has not ruled on this issue, this Court has the responsibility to attempt to ascertain what rule the Nebraska Court would adopt. In making this determination, this Court should consider any Nebraska authority "persuasively indicating the course of decisions within the state." Cudahy Company v. American Laboratories, Inc., 313 F.Supp. 1339, 1342 (D.Neb.1970). This Court will also consider the decisions of other jurisdictions, since it is clear that the Nebraska Supreme Court would also consider this authority in making its decision. Seedkem v. Safranek, 466 F.Supp. 340, 341 (D.Neb. 1979).

The plaintiffs have cited a number of Nebraska cases from which it may logically be inferred that the Nebraska Supreme Court would recognize this cause of action. The plaintiffs' arguments which rely on logic and analogy, however, are not persuasive, since the resolution of the issue before this Court 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. . . . Not 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. Borer v. American Airlines, Inc., 19 Cal.3d 441, 138 Cal.Rptr. 302, 306, 563 P.2d 858, 862 (1977).

These policy factors have convinced a majority of courts to deny the existence of a cause of action for a child's loss of support and services due to parental injury. See Early v. United States, 474 F.2d 756, 758-59 (9th Cir. 1973) (Alaska law); Pleasant v. Washington Sand & Gravel Co., Inc., 104 U.S.App.D.C. 374, 375-76, 262 F.2d 471, 472-73 (D.C.Cir. 1958); Meredith v. Scruggs, 244 F.2d 604 (1957) (Hawaii law); Turner v. Atlantic Coast Line Railroad Company, 159 F.Supp. 590 (N.D.Ga.1958) (South Carolina Law); Jeune v. Del E. Webb Construction Co., 77 Ariz. 226, 227, 269 P.2d 723, 724 (1954), overruled on other grounds, Glendale v. Bradshaw, 108 Ariz. 582, 503 P.2d 803 (1972); Borer v. American Airlines, Inc., 19 Cal.3d 441, 138 Cal.Rptr. 302, 310, 563 P.2d 858, 866 (1977); Clark v. Suncoast Hospital, Inc., 338 So.2d 1117, 1118-19 (Fla.Ct.App.1976); Hankins v. Derby, 211 N.W.2d 581, 584-85 (Iowa 1973); Hoffman v. Dautel, 189 Kan. 165, 167-169, 368 P.2d 57, 59-60 (1962); Sabatier v. Travelers Insurance Company, 184 So.2d 594, 595 (La.Ct.App.1966); Miller v. Monsen, 228 Minn. 400, 403-07, 37 N.W.2d 543, 546-47 (1949); General Electric Company v. Bush, 88 Nev. 360, 367, 498 P.2d 366, 371 (1972); Russell v. Salem Transport Company, 61 N.J. 502, 506, 295 A.2d 862, 864 (1972); Cox v. Stretton, 77 Misc.2d 155, 158-61, 352 N.Y. S.2d 834, 839-41 (Sup.Ct.1974); Hastings v. James River Aerie No. 2337, 246 N.W.2d 747, 753 (N.D.1976); Gibson v. Johnston, 144 N.E.2d 310, 313 (Ohio Ct.App.1956); Roth v. Bell, 24 Wash.App. 92, 101-104, 600 P.2d 602, 608-609 (1979). Only one court has found that a child may recover for loss of parental consortium when a nonfatal injury is involved. Berger v. Weber, 82 Mich. App. 199, 201-203, 267 N.W.2d 124, 125 (1978). For the reasons discussed below, this Court is of the opinion that the Nebraska Supreme Court would adopt the majority view.

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. Borer v. American Airlines, Inc., supra, 138 Cal. Rptr. at 306, 563 P.2d at 862.

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. Borer v. American Airlines, Inc., supra, 138 Cal.Rptr. at 306, 563 P.2d at 862. 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 parent. Borer v. American Airlines, supra, 138 Cal.Rptr. at 306, 563 P.2d at 862. When the social costs are weighed against the non-compensatory nature of the monetary award, it appears that the social costs outweigh the purported benefits. Borer v. American Airlines, supra, 138 Cal.Rptr. at 306, 563 P.2d at 862.

The plaintiffs, however, note that the Nebraska Supreme Court has permitted recovery of monetary damages for intangible losses. Under Nebraska law, a person can recover for loss of marital consortium. See Omaha & Republican Valley Railway Company v. Chollette, 41 Neb. 578, 59 N.W. 921 (1894). In addition, the parents, children, and siblings of a deceased person may bring a wrongful death action to recover for the loss of consortium due to their relative's death. See Caradori v. Fitch, 200 Neb. 186, 263 N.W.2d 649 (1978); Selders v. Armentrout, 190 Neb. 275, 207 N.W.2d 686 (1973); Wood v. City of Omaha, 87 Neb. 213, 127 N.W. 174 (1910). These cases, however, do not require this Court to recognize a cause of action for loss of parental consortium when a nonfatal injury is involved.

Plaintiffs point out that courts have permitted recovery of monetary damages for intangible loss in allowing awards for pain and suffering in negligence cases and in sanctioning recovery for loss of marital consortium. The question before us in this case, however, pivots on whether we should recognize a wholly new cause of action, unsupported by statute or precedent; in this context the inadequacy of monetary damages to make whole the loss suffered, considered in light of the social cost of paying such awards, constitutes a strong reason for refusing to recognize the asserted claim. To avoid misunderstanding, we point out that our decision to refuse to recognize a cause of action for parental consortium does not remotely suggest the rejection of recovery for intangible loss; each claim must be judged on its own merits, and in many cases the involved statutes, precedents, or policy will induce acceptance of the asserted cause of action. (emphasis added). Borer v. American Airlines, Inc., supra, 138 Cal.Rptr. at 306, 563 P.2d at 862.

Another reason for refusing to extend liability for loss of consortium is the difficulty in placing...