Hutchings v. Childress

• Decision Date: 17 September 2008
• Docket Number: No. 2006-1703.,No. 2006-2183.,2006-1703.,2006-2183.
• Citation: 2008 Ohio 4568,895 N.E.2d 520,119 Ohio St.3d 486
• Parties: HUTCHINGS et al., Appellants, v. CHILDRESS et al., Appellees.
• Court: Ohio Supreme Court

895 N.E.2d 520

119 Ohio St.3d 486

2008-Ohio-4568

HUTCHINGS et al., Appellants, v. CHILDRESS et al., Appellees.

No. 2006-1703.

No. 2006-2183.

Supreme Court of Ohio.

Submitted September 12, 2007.

Decided September 17, 2008.

Cooper & Elliot, L.L.C., Rex H. Elliot, and Charles H. Cooper Jr., Columbus, for appellants.

Frost, Maddox & Norman Co., L.P.A., and A. Scott Norman, for appellees.

PFEIFER, J.

{¶ 1} The question certified to us by the Fifth District Court of Appeals is:

{¶ 2} "Whether spouses can recover the income lost due to one spouse caring for another or whether they may only recover the cost to hire outside home health care."

{¶ 3} We hold that part of the injured spouse's damages against a defendant can include the fair market value of the home health care provided by the uninjured spouse. Damages are measured not by the lost income of the supporting spouse but by the market value of the services he or she renders.

Factual and Procedural Background

{¶ 4} On January 8, 1999, plaintiff-appellant Nancy Hutchings was injured in an automobile accident caused by appellee David Childress, an employee of appellee Central Ohio Paintball, Inc. Nancy suffered a traumatic brain injury; she suffers confusion and memory loss that affect her ability to think, speak, drive, and perform household activities. Nancy filed a claim against appellees for her injuries; her husband, John, filed a claim for loss of consortium.

{¶ 5} John has functioned as a caregiver for Nancy since her injury. He spent the first six weeks after the accident at home caring for his wife and has continued to attend therapy and medical appointments with Nancy. He has taken over all of Nancy's household activities and continues to take time off from work to care for his wife.

{¶ 6} John is a financial planner. The plaintiffs claimed that his business suffered because John was required to spend time away from his job duties to attend to Nancy and that his business continues to suffer because Nancy requires continuing care. At trial, the Hutchingses presented evidence of the economic loss the family suffered due to John's caring for his wife; an economist testified that John has lost income because of time spent caring for Nancy and that his time missed from work would produce an income gap of between $1,775,000 and $2,296,000 over the expected length of his work life. The Hutchingses also offered testimony about the economic value of the household duties Nancy can no longer perform. They did not, however, present any evidence of the cost to hire professional nursing care for Nancy.

{¶ 7} The trial court refused to instruct the jury that it could award either plaintiff damages for John's loss of income during the time he spent caring for Nancy, concluding that Ohio law did not support including as damages a spouse's lost income for caring for an injured spouse. The jury returned a verdict in favor of the Hutchingses for $255,000 on Nancy's claims and $20,000 on John's claim for loss of consortium. The trial court's judgment entry included the following language:

{¶ 8} "The Court further granted defendants' request not to instruct the jury on plaintiffs' claim for John Hutchings' lost income resulting from the injuries suffered by Nancy Hutchings."

{¶ 9} The Hutchingses appealed, arguing that the trial court had erred in refusing to instruct the jury that it could award as damages the income John lost as a result of staying home and providing care to his wife. On November 17, 2006, the appellate court affirmed the judgment of the trial court, holding that the jury could not award to either plaintiff damages for John's lost wages resulting from gratuitous nursing care he provided to his wife:

{¶ 10} "With regard to Mr. Hutchings['] claim that he should be compensated for his lost wages resulting from the care he provided to his wife, we agree with the trial court and the other appellate districts in this State that find that the jury cannot consider and award damages for Mr. Hutchings' lost wages resulting from the gratuitous nursing care he provided to his wife.

{¶ 11} "* * *

{¶ 12} "We do not find that the trial court erred in not allowing the jury to consider Mr. Hutchings' lost wages resulting from his inability to work as such loss was not necessarily a probable consequence of Nancy Hutchings' injuries. Such lost wages were not a loss that Nancy Hutchings necessarily suffered as the direct result of the defendant's negligence." Hutchings v. Childress, Delaware App. No. 05CAE05-031, 2006-Ohio-7323, 2006 WL 6013390, ¶ 29-32.

{¶ 13} Also on November 17, 2006, the appellate court granted the Hutchingses' motion to certify a conflict, finding that its decision conflicted with the Second District Court of Appeals' decision in Depouw v. Bichette, 162 Ohio App.3d 336, 2005-Ohio-3695, 833 N.E.2d 744.

{¶ 14} The cause is before this court upon the acceptance of a discretionary appeal and upon the certification of a conflict.

Law and Analysis

{¶ 15} We face a question in this case that has been addressed by few Ohio courts and never by this one: May an injured spouse recover damages from a tortfeasor for income lost by the uninjured spouse while the uninjured spouse is caring for the injured spouse? The provision of care by a spouse to an injured spouse is to be admired and encouraged. But can a price be placed upon such priceless care?

{¶ 16} If there is to be recovery of lost income, it cannot be a part of the uninjured spouse's claim for loss of consortium. A claim for loss of consortium is not based upon economic damages. "Consortium consists of society, services, sexual relations and conjugal affection which includes companionship, comfort, love and solace." Clouston v. Remlinger Oldsmobile Cadillac, Inc. (1970), 22 Ohio St.2d 65, 51 O.O.2d 96, 258 N.E.2d 230, syllabus. The uninjured spouse's loss-of-consortium claim is based upon the loss of the services provided by the injured spouse before his or her injury. The uninjured spouse's income from his own employment is not a service that the injured spouse once provided. Thus, any recovery of damages for care provided to an injured spouse must be part of the injured spouse's claim.

{¶ 17} Ohio courts have addressed issues concerning the recovery of damages for the care provided by a family member on several occasions. Only in Depouw, 162 Ohio App.3d 336, 2005-Ohio-3695, 833 N.E.2d 744, the case certified as conflicting with the decision of the court below, has a court held that the injured spouse could recover the income her spouse lost when he missed work to care for her. In an early case addressing care provided by a spouse, Griffen v. Cincinnati Realty Co. (1913), 15 Ohio N.P. (N.S.) 123, 27 Ohio Dec. 585, 1913 WL 1009, the court granted a motion to strike a claim for lost wages brought by the uninjured spouse. The plaintiff wife had sought recovery of the wages lost when she temporarily gave up her seamstress job to care for her injured husband. The court held that the husband had not contracted with his wife to provide such care, and thus she could not recover for the value of her nursing services, holding, "For the value of these gratuitous services which are presumably prompted by affection, the husband can not recover, though they are usually far more valuable than the perfunctory ministrations of paid attendants." Id. at *1. Further, the court held that the wife could not recover for her lost wages because such damages were not foreseeable: "But surely defendants can not be charged with the responsibility for her choosing [to] temporarily terminate her separate employment so that she might nurse her injured spouse. Such result could not be reasonably anticipated as a direct result of the alleged negligence of defendants." Id.

{¶ 18} Most of the Ohio decisions, however, allow recovery for the value of the nursing services provided. In Howard v. McKitrick (July 2, 1987), Franklin App. No. 87AP-148, 1987 WL 13837, the court held that an adult plaintiff could recover damages for the nursing care provided by her mother.

{¶ 19} The more common cases address the care provided to a minor child by his parents. Those cases have recognized a parent's right to recover damages for the value of the care they provided their injured child, but not for the parents' lost wages. In Cincinnati Omnibus Co. v. Kuhnell (1884), 9 Ohio Dec.Rep. 197, 1884 WL 4656, *3, the court held that "[t]he charge of the court that the mother was entitled to recover the loss to her which resulted from her having to nurse her son and not being able to earn anything outside, was erroneous, as the rule should have been the reasonable value of the nursing." In Rouse v. Riverside Methodist Hosp. (1983), 9 Ohio App.3d 206, 9 OBR 355, 459 N.E.2d 593, the court concluded that Ohio should follow the majority of states in awarding damages for care given by a parent to a child.

{¶ 20} Depouw stands alone in Ohio in awarding damages for income lost by an uninjured spouse while providing care to an injured spouse. The court in Depouw recognized its holding as an outlier, noting that "a majority of state and federal courts that have addressed the situation in which a spouse provides nursing care for an injured plaintiff, often losing wages as a result, have determined that the value to be awarded as damages is the cost of hiring an outside nurse to render the care, not lost wages." 162 Ohio App.3d 336, 2005-Ohio-3695, 833 N.E.2d 744, at ¶ 11. The cases cited in Depouw in support of the proposition that lost wages are recoverable involved instances in which damages were awarded to the uninjured spouse on his or her own claim; in Depouw, the court awarded the lost-income damages to the injured spouse. Moreover, the cases cited in Depouw do not delve deeply into the reasoning behind such awards. In Kerns v. Lewis (1929), 249 Mich. 27, 31, 227 N.W. 727, the court stated that the worth of the uninjured spouse's time was...