Ipock for Hill v. Gilmore

• Decision Date: 07 April 1987
• Docket Number: No. 868SC848,868SC848
• Citation: 85 N.C.App. 70,354 S.E.2d 315
• Court: North Carolina Court of Appeals
• Parties: Barbara S. IPOCK, Guardian Ad Litem for Judith I. HILL, and Timothy W. Hill, individually and as Guardian Ad Litem for Timothy Jason Hill, a minor v. Samuel J. GILMORE.

Page 315

354 S.E.2d 315

85 N.C.App. 70

Barbara S. IPOCK, Guardian Ad Litem for Judith I. HILL, and Timothy W. Hill, individually and as Guardian Ad Litem for Timothy Jason Hill, a minor v. Samuel J. GILMORE.

No. 868SC848.

Court of Appeals of North Carolina.

April 7, 1987.

Kenneth B. Oettinger, Grover C. McCain, Jr., Chapel Hill and Boyce, Mitchell, Burns & Smith by Robert E. Smith, Raleigh, for plaintiffs-appellants.

Hornthal, Riley, Ellis & Maland by L.P. Hornthal, Jr. and Robert B. Hobbs, Jr., Elizabeth City, for defendant-appellee.

ARNOLD, Judge.

Plaintiffs first contend that the trial court committed reversible error in allowing Dr. Gilmore's motion for partial summary judgment, dismissing the claim of Timothy Jason Hill for loss of parental consortium. We disagree.

Recognition of the claim of loss of parental consortium has twice been refused by the courts of this state. Henson v. Thomas, 231 N.C. 173, 56 S.E.2d 432 (1949); Azzolino v. Dingfelder, 71 N.C.App. 289, 322 S.E.2d 567 (1984), rev'd in part on other grounds, 315 N.C. 103, 337 S.E.2d 528 (1985), cert. denied, 479 U.S. 835, 107 S.Ct. 131, 93 L.Ed.2d 75 (1986). This asserted cause of action was not acknowledged at common law and it has no statutory sanction. Henson, 231 N.C. at 176, 56 S.E.2d at 434. It is the duty of the judiciary to enforce the law as we find it and to determine if a cause of action is existent or non-existent as the law now exists, not to create new claims. Id.

We are aware of the dictum by way of footnote in the first appeal of this case which stated:

We do note ... that in other suits involving an indirect impact on children, our appellate courts have declined to recognize a cause of action for loss of parental consortium. See Henson v. Thomas, 231 N.C. 173, 56 S.E.2d 432 (1949); Azzolino v. Dingfelder, 71 N.C.App. 289, 322 S.E.2d 567 (1984). However, arguably in this case, the impact on the child is directly foreseeable.

Ipock v. Gilmore, 73 N.C.App. 182, 188, 326 S.E.2d 271, 276, disc. rev. denied, 314 N.C. 116, 332 S.E.2d 481 (1985).

While the loss of parental consortium in situations such as the present case may be quite real and worthy of compensation, recognition of a new cause of action is a policy decision which falls within the province of the legislature. "The 'excelsior cry for a better system' in order to keep step with the new conditions and spirit of a more progressive age must be made to the Legislature, rather than to the courts." Henson, 231 N.C. at 176, 56 S.E.2d at 434.

Plaintiffs contend that it would be a denial of both equal protection and due process (1) to allow a spouse but not a child to recover for the loss of consortium of an injured person, or (2) to allow the child of a deceased parent but not the child of a brain-damaged parent to recover for such loss. We disagree.

First, the spousal relationship and the relationship between parent and child are not the same. Companionship, service, responsibility, love and affection between spouses differ in both degree and kind from those of a parent-child relationship. The law is not constitutionally required to treat these relationships as identical. See Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 652 P.2d 318 (1982).

Second, allowing the child of a deceased parent but not the child of a brain-damaged parent to recover for such loss does not deny equal protection or due process. The distinction is not between kinds of children but between a defendant's scope of liability for causing fatal as distinct from nonfatal injuries to the people who are the immediate victims of his or her negligence. Id.

Also, if the parent lives then the tangible aspects of a child's loss can be included in the compensation awarded in the parent's own cause of action. Halberg v. Young, 41 Hawaii 634, 59 A.L.R.2d 445 (1957). With this in mind, a state legislature could rationally conclude that only upon the death of a parent should a child be compensated for intangible losses. See Russell v. Salem Transp. Co., 61 N.J. 502, 295 A.2d 862 (1972).

Plaintiffs argue that the middle tier test applicable in some equal protection cases should be used here. See Dixon v. Peters, 63 N.C.App. 592, 306 S.E.2d 477 (1983). We disagree.

There is neither a semi-suspect class nor a semi-fundamental interest involved in the present situation. We find no basis to support plaintiffs' argument that the middle tier (substantial state interest) test should be used. Therefore, all that is needed is a rational basis for denying minor plaintiff's claim. Id. Several rationales are listed as follows.

First, there is the possible overlap in recovery of claims between the injured parent and the child. Second, there is the potential increase in insurance costs. There are also the derivative nature and indirectness of the injury; the uncertainty and remoteness of damages; the multiplication of tort litigation; and the splitting of the basic cause of action. See Garza v. Kantor, 54 Cal.App.3d 1025, 127 Cal.Rptr. 164 (1976); see also Suter v. Leonard, 45 Cal.App.3d 744, 20 Cal.Rptr. 110 (1975).

We do not suggest that in situations such as the one presently before us, that a child's claim is not genuine. However, there must be a line drawn which ends a tortfeasor's liability at some point.

While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree.

Toby v. Grossman, 24 N.Y.2d 609, 619, 301 N.Y.S.2d 554, 561, 249 N.E.2d 419, 424 (1969). It is the legislature's prerogative to extend such liability if they believe it proper, not ours.

This state does not recognize the claim of the minor plaintiff. The trial judge, therefore, properly granted partial summary judgment for defendant dismissing the claim for loss of parental consortium.

Plaintiffs next contend that the trial court committed reversible error in allowing defendant's motion for summary judgment, dismissing the claims of Barbara S. Ipock, guardian ad litem for Judith Hill, and of Timothy W. Hill, individually, for battery, on the ground that there were genuine issues as to material facts and defendant was, therefore, not entitled to judgment as a matter of law. We disagree.

It has been established that only an unauthorized operation constitutes a battery. See Nelson v. Patrick, 58 N.C.App. 546, 293 S.E.2d 829 (1982). In fact, the N.C. Supreme Court stated that:

... where an internal operation is indicated, a surgeon may lawfully perform, and it is his duty to perform, such operation as good surgery demands, even when it means an extension of the operation further than was originally contemplated, and for so doing he is not to be held in damages as for an unauthorized operation.

Kennedy v. Parrott, 243 N.C. 355, 363, 90 S.E.2d 754, 759 (1956).

The request for sterilization signed by both Judith and Timothy W. Hill authorized Dr. Gilmore to perform the laparoscopy and "to do any other procedure that his judgement may dictate during the above operation." The operation consent form which was signed by Mrs. Hill stated that, "[i]f any conditions are revealed at the time of the operation that were not recognized before and which call for procedures in addition to those originally contemplated, I authorize the performance of such procedures."

In light of the established case law above and the consent forms signed by Mrs. Hill, the trial court properly granted partial summary judgment dismissing plaintiffs' claims for battery because the evidence presented did not support such claims.

Plaintiffs lastly contend that the trial court committed reversible error in allowing defendant's motion for summary judgment, dismissing the claims of Barbara Ipock, guardian ad litem for Judith Hill, and of Timothy W. Hill, individually, for punitive damages, on the ground that there were genuine issues as to material facts and defendant was, therefore, not entitled to judgment as a matter of law. We disagree.

In order to qualify for punitive damages in North Carolina, some element of aggravation must be proven. Newton v. Insurance Co., 291 N.C. 105, 229 S.E.2d 297 (1976); Paris v. Kreitz, 75 N.C.App. 365, 331 S.E.2d 234, disc. rev. denied, 315 N.C. 185, 337 S.E.2d 858 (1985). In the context of an intentional tort, aggravated conduct "... usually consists of insult, indignity, malice, oppression, or bad motive in addition to the tort." Paris at 374, 331 S.E.2d at 241.

The record does not indicate any evidence of aggravated facts sufficient to support a claim for punitive damages. The trial court did not err in granting partial summary judgment in favor of defendant on plaintiffs' claim for punitive damages.

Defendant makes cross-assignments of error contending that the Court of Appeals erred in its first opinion in this case. "Once an appellate court has ruled on a question, that decision becomes the law of the case and governs the question not only on remand at trial, but on a subsequent appeal of the same case." N.C.N.B. v. Virginia Carolina Builders, 307 N.C. 563, 566, 299 S.E.2d 629, 631, reh'g denied, 307 N.C. 703 (1983). Defendant's cross-assignments of error are without merit.

Affirmed.

ORR, J., concurs.

PHILLIPS, J., dissents.

PHILLIPS, Judge, dissenting.

I dissent from all three holdings by the majority. First, in my opinion the claim of the child Timothy Jason Hill for the wrongful loss of his mother's care, guidance, society and training is well founded, and is not barred by either precedent or the inaction of the General Assembly. As to the notion that a claim for injury wrongfully done should not be considered by our courts unless such a claim either was approved by the courts of England before our republic was founded or has since been expressly authorized by the...