Lewis v. Rowland, 85-170

• Decision Date: 23 December 1985
• Docket Number: No. 85-170,85-170
• Citation: 287 Ark. 474,701 S.W.2d 122
• Parties: Delbert LEWIS, Appellant, v. Onis Edward ROWLAND, Appellee.
• Court: Arkansas Supreme Court

Page 122

701 S.W.2d 122

287 Ark. 474

Delbert LEWIS, Appellant, v. Onis Edward ROWLAND, Appellee.

No. 85-170.

Supreme Court of Arkansas.

Dec. 23, 1985.

The McMath Law Firm by Art Anderson, Little Rock, for appellant.

Huckabay, Munson, Rowlett & Tilley, Little Rock, for appellee.

HICKMAN, Justice.

Delbert Lewis, 37, is considered a quadriplegic who was paralyzed by polio at age 3. He is a college graduate and has worked full-time for 12 years for the Arkansas Rehabilitative Services. He is economically self-sufficient, accepting no government aid. His mother, Viola Lewis, lives with him and cares for him by tending to his personal needs and performing housekeeping chores. She drives him to and from work in a handicapped equipped van which Delbert Lewis owns.

Lewis' mother was injured in an automobile accident on July 7, 1983. Lewis was not in the accident. Lewis' mother filed suit against the other driver, Onis Edward Rowland, for personal injuries; Lewis joined her suit claiming loss of his mother's services. Lewis asked the trial court to rule that he was as dependent as a child on his mother in many ways and ought to be able to recover for loss of consortium. The trial court dismissed his claim because Arkansas does not recognize such a cause of action; we agree and decline to join those states which do.

The parties concede there is no case directly on point. However, bearing on this case is the body of law covering the rights of spouses or children to monetary damages for the loss of consortium. Consortium is a word derived from Latin meaning fellowship, society, and cooperation; in law it is the right to each other's company, affection and aid of the other in a conjugal relation. It is widely recognized that husbands and wives have a right to damages for loss of consortium. Little Rock Gas & Fuel Co. v. Coppedge, 116 Ark. 334, 172 S.W. 885 (1915); Missouri Pacific Transportation Co. v. Miller, 227 Ark. 351, 299 S.W.2d 41 (1957).

We are in accord with a majority of states in not recognizing that a minor child has a claim for loss of consortium when a parent is injured. At least sixteen jurisdictions so hold: Arizona, California, District of Columbia, Florida, Hawaii, Kansas, Louisiana, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New York, North Dakota, Ohio, and South Carolina. A growing minority of states do however allow such a claim, including Iowa, Massachusetts, Michigan, Vermont, Washington, and Wisconsin.

Several reasons are given for denying the claim to a minor child. One reason is that it is a question of public policy that ought to be decided by the legislature, not the courts. Koskela v. Martin, 91 Ill.App.3d 568, 47 Ill.Dec. 32, 414 N.E.2d 1148 (1980); Borer v. American Airlines, Inc., 19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858 (1977). In Borer, the claim for loss of consortium was made by the nine children of Patricia Borer. The court said:

Judicial recognition of a cause of action for loss of consortium, we believe, must be narrowly circumscribed. Loss of consortium is an intangible injury for which money damages do not afford an accurate measure or suitable recompense; recognition of a right to recover for such losses in the present context, moreover, may substantially increase the number of claims asserted in ordinary accident cases, the expense of settling or resolving such claims, and the ultimate liability of the defendants.

The court further stated:

... [S]ocial policy must at some point intervene to delimit liability. Patricia Borer, ... foreseeably has not only a husband ... and the children who sue here, but also parents whose right of action depends upon our decision in the companion case of Baxter v. Superior Court [19 Cal.3d 461, 138 Cal.Rptr. 315, 563 P.2d 871]; foreseeably, likewise, she has brothers, sisters, cousins, inlaws, friends, colleagues, and other acquaintances who will be deprived of her companionship. No one suggests that all such persons possess a right of action for loss of Patricia's consortium; all agree that somewhere a line must be drawn. As stated by Judge Breitel in Tobin v. Grossman, (1969) 24 N.Y.2d 609, 619, 301 N.Y.S.2d 554, 561, 249 N.E.2d 419, 424: '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.'

The decision whether to limit liability for loss of consortium by denying a cause of action in the parent-child context, or to permit that action but deny any claim based upon more remote relationships, is thus a question of policy.

The court concluded:

... [T]aking into account all considerations which bear on this question, including the inadequacy of monetary compensation to alleviate that tragedy, the difficulty of measuring damages, and the danger of imposing extended and disproportionate liability, we should not recognize a nonstatutory cause of action for the loss of parental consortium.

Sometimes the courts will recognize a new cause of action or expand one and sometimes it is best to let the legislative body do so. We have done both. In one recent instance we declined to recognize a cause of action for wrongful birth. Wilbur v. Kerr, 275 Ark. 239, 628 S.W.2d 568 (1982). Until the legislature recognized strict liability, we did not. Cockman v. Welder's Supply Co., 265 Ark. 612, 580 S.W.2d 455 (1979); Ford Motor Co. v. Reid, 250 Ark. 176, 465 S.W.2d 80 (1971). We did recognize the new tort of outrage but have attempted to limit the new tort to truly outrageous cases. M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). We have recognized that while Arkansas' wrongful death statute does not expressly allow recovery for a child's loss of consortium, it is a compensable claim. St. L.I.M. & S. Ry. v. Prince, 101 Ark. 315, 142 S.W. 499 (1911). Also in Attwood v. Estate of Attwood, 276 Ark. 230, 633 S.W.2d 366 (1982), we recognized that children could sue parents for willful torts. Our decision in this case is based mainly on the policy consideration that if such a cause of action is to exist, it is for the legislature to create rather than the courts.

The other reasons usually given for denying a claim such as the appellant's deserve discussion. One reason often given is that a child is not legally entitled to a parent's love, guidance and companionship. See Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981). Parents have a legal duty to support their minor children but not the legal duty to love them.

Opening the floodgates to litigation is often cited as a reason for not recognizing a new cause of action. Koskela v. Martin, supra; Borer v. American Airlines, Inc., supra. It is not...