Ladd v. Douglas Trucking Co.

• Decision Date: 14 April 1987
• Docket Number: No. 13004,13004
• Citation: 523 A.2d 1301,203 Conn. 187
• Court: Connecticut Supreme Court
• Parties: Catherine M. LADD, Administratrix (ESTATE OF Brian D. LADD), et al. v. DOUGLAS TRUCKING COMPANY et al.

Page 1301

523 A.2d 1301

203 Conn. 187

Catherine M. LADD, Administratrix (ESTATE OF Brian D. LADD), et al. v. DOUGLAS TRUCKING COMPANY et al.

No. 13004.

Supreme Court of Connecticut.

Argued Feb. 5, 1987.

Decided April 14, 1987.

Peter G. Perakos II, with whom, on the brief, was Barry S. Zitser, New Britain, for appellant (plaintiff).

George J. DuBorg, Rocky Hill, for appellees (defendants).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DUPONT and McKEEVER, JJ.

SHEA, Associate Justice.

The plaintiff, as administratrix of the estate of her deceased husband and also in her individual capacity as his surviving wife, brought this action in the federal district court seeking damages resulting from his death in a motor vehicle accident. The defendants, who are the driver, the lessee and the lessor of the truck alleged to have struck the vehicle being operated by the decedent, moved to dismiss the third count of the complaint as amended, which set forth the claim of the plaintiff for the loss of consortium of her husband. The district court, concluding that the issue of the validity of a claim for loss of consortium following the death of a spouse had not been authoritatively resolved by any decisions of this court, denied the motion to dismiss without prejudice to its later renewal and, pursuant to General Statutes § 51-199a and Practice Book § 4168, certified to this court the following questions: "1. May a surviving spouse recover for antemortem loss of consortium in a wrongful death action under Connecticut statutory law and/or common law? 2. May a surviving spouse recover for post-mortem loss of consortium in a wrongful death action under Connecticut statutory law and/or common law?"

The statement of facts included in the certification order recites that on September 27, 1985, a tractor-trailer driven by the defendant David R. Sterling crossed the median divider on interstate highway 84 in Danbury and collided with a vehicle being operated by Brian Ladd, the decedent. As a result of the collision, Ladd received severe injuries from which he died on October 7, 1985. The plaintiff, on her own behalf as his wife, seeks damages for the loss of consortium of her husband during the ten days that he lived following the accident and also for the period after his death. As administratrix of his estate, she claims additional damages resulting from the death pursuant to our wrongful death statute, General Statutes § 52-555.

I

The defendants concede that a spouse may recover for a loss of consortium occurring during the period between the accident and the death of the accident victim. In Hopson v. St. Mary's Hospital, 176 Conn. 485, 408 A.2d 260 (1979), this court first recognized for a nonintentional tort a cause of action in behalf of a spouse for the loss of consortium of a marital partner who had been injured. "[T]he mental and emotional anguish caused by seeing a healthy, loving, companionable mate turn into a shell of a person is undeniably a real injury. Moreover, an injury to one's spouse may turn a happily married man or woman into a lifelong nurse and deprive him or her of an opportunity of having children or raising a family." Id., 493, 408 A.2d 260.

Though the scenario described in Hopson may not be wholly appropriate in relation to a loss of postmortem consortium, since death at least terminates the duties of the surviving spouse to the decedent, it is fully applicable for the period that a victim lived following the onset of his injuries. Just as the claim of a decedent for injuries not involving his death survives his demise by virtue of our survival-of-actions statute, General Statutes § 52-599, ¹ the claim of a spouse for antemortem loss of consortium because of such nonfatal injuries is no less viable. The circumstance that injuries to an accident victim have culminated in death does not extinguish his claim for antemortem damages for those injuries, as indicated by the reference in General Statutes § 52-555, ² our wrongful death statute, to the recoverability of damages for injuries resulting in death, "whether instantaneous or otherwise."

In an action by the estate of the victim pursuant to § 52-555, of course, the damages suffered before his death are one of the elements of the "just damages" to be awarded and must be sought in that action rather than in a separate suit under the survival-of-actions statute. Floyd v. Fruit Industries, Inc., 144 Conn. 659, 669, 136 A.2d 918 (1957). "[T]here cannot be a recovery of damages for death itself under the wrongful death statute in one action and a recovery of antemortem damages, flowing from the same tort, in another action brought under [§ 52-599]." Id. Because the death of a victim does not terminate his claim for antemortem injuries, whether fatal or not, it would be wholly incongruous for his death to result in wiping out the related claim of his spouse for the antemortem loss of consortium flowing from the same injuries.

The same conclusion has been reached in the few cases that have addressed the issue of whether under Connecticut law a claim for antemortem loss of consortium must abate upon the death of the victim. See Bauer v. Johns-Manville Corporation, 599 F.Supp. 33, 36 (D.Conn.1984); see also Hume v. Hertz Corporation, 628 F.Supp. 763, 765 (D.Conn.1986).

To the first question certified by the district court we respond that a spouse may recover for antemortem loss of consortium in her individual capacity where her common law claim has been joined with the wrongful death action brought by the decedent's estate pursuant to § 52-555.

II

The recoverability of damages for postmortem loss of spousal consortium confronts the obstacles created by the generally accepted view that there was no common law right of recovery for the wrongful death of a victim on the part of either his estate or members of his family. W. Prosser & W. Keeton, Torts (5th Ed.) § 127, p. 945; 2 F. Harper & F. James, Torts § 24.1, p. 1284. "We have recognized it as a rule of the common law generally applicable that no action lies for damages resulting from the death of a human being." Lucier v. Hittleman, 125 Conn. 635, 636, 7 A.2d 647 (1939). ³ "It is a singular fact that by the common law the greatest injury which one man can inflict upon another, the taking of his life, is without private remedy. By a strange fiction the extremity of the wrong precludes redress." Goodsell v. Hartford & New Haven R.R. Co., 33 Conn. 51, 55 (1865).

The manifest injustice of the prevailing common law rule led in England to the passage in 1846 of the Fatal Accidents Act, more widely known as Lord Campbell's Act, 9 & 10 Victoria, c. 93, a statute deemed to have created a new right of action "for the benefit of the wife, husband, parent, and child ..." of the decedent, though brought by the representative of his estate in their behalf. 2 F. Harper & F. James, supra, § 24.2, pp. 1285-86 n. 2, quoting 9 & 10 Victoria, c. 93, § 2. Similar statutes were soon adopted by many states in this country. These enactments, patterned after Lord Campbell's Act, are generally regarded as allowing the specified beneficiaries to recover for the personal losses they have sustained because of the death of a relative. Such a cause of action "does not rest upon the basis of an injury suffered by the deceased's estate; its foundation is the loss sustained by certain persons designated as beneficiaries of the recovery." Kling v. Torello, 87 Conn. 301, 304, 87 A. 987 (1913). Although earlier decisions under these statutes limited recovery to losses of pecuniary benefits, many states presently also allow compensation for less tangible elements, including the loss of consortium. 1 S. Speiser, Recovery for Wrongful Death (2d Ed.) § 3:49.

In Connecticut the legislature in 1848 responded to the problems created by the death of an accident victim by enacting two statutes: (1) that "no action to recover damages for injury to the person ... shall abate by reason of his death, but his executor or administrator may enter and prosecute the same in the same manner as is now by law provided in regard to other actions" and (2) that "[a]ctions for injury to the person, whether the same do or do not result in death ... shall survive to his executor or administrator...." Public Acts 1848, c. 5, §§ 1, 2. The first provision was intended to overcome the common law rule that a "personal" action, such as a suit for injuries, does not survive the death of the claimant, a doctrine expressed in the maxim, actio personalis moritur cum persona. Broughel v. Southern New England Telephone Co., 72 Conn. 617, 622, 45 A. 435 (1900). This statutory principle is now incorporated in our survival-of-actions statute, General Statutes § 52-599. The second provision was intended to circumvent the common law rule precluding recovery of damages resulting from death. Broughel v. Southern New England Telephone Co., supra, 622-23, 45 A. 435. This enactment was the progenitor of our present wrongful death statute, § 52-555, which allows the estate to recover in the same action damages suffered by the deceased victim before death as well as those accruing to his estate thereafter. Floyd v. Fruit Industries, Inc., supra, 669, 136 A.2d 918.

Our wrongful death statute has been viewed as transferring to his estate "the right of action which the decedent had for his sufferings and disability during life, while the death enlarges his right of recovery by permitting an award of damages for the death itself as one of the harmful results of the wrongful act." Kling v. Torello, supra, 87 Conn. at 306, 87 A. 987. "It is a necessary corollary that damages under our statute are not based upon any loss caused to the family or relatives of the deceased...." Chase v. Fitzgerald, 132 Conn. 461, 467, 45 A.2d 789 (1946).

The plaintiff relies principally upon a decision of the Superior Court, Hinde v. Butler, 35 Conn.Supp. 292, 408 A.2d 668 (1979), which held...