Masitto v. Robie

Decision Date11 March 1985
Docket NumberNo. 10-190,10-190
Citation21 Ohio App.3d 170,21 OBR 181,486 N.E.2d 1258
Parties, 21 O.B.R. 181 MASITTO, Incompetent, By and Through Her Guardians, et al., Appellants, v. ROBIE et al., Appellees. *
CourtOhio Court of Appeals

Syllabus by the Court

Ohio law does not recognize a right of action in a child for an injury which she has sustained in her relation with her parents, proximately caused by the negligent act of a third person resulting in injury to the parent and depriving the child of the care, companionship, affection and services of the parent.

Phillip A. Lawrence & Associates, Phillip A. Lawrence and Loren Loving Vail, Chagrin Falls, for appellants.

Kitchen, Messner & Deery and Charles W. Kitchen, Cleveland, for appellee Richard R. Robie, M.D.

Squire, Sanders & Dempsey, Robin G. Weaver and Roberta W. Spurgeon, Cleveland, for appellee DeSung Kim, M.D.

Reminger & Reminger Co., L.P.A., and Gary H. Goldwasser, Cleveland, for appellee Lake County Memorial Hosp.

FORD, Judge.

This cause of action was filed in the Lake County Court of Common Pleas on October 31, 1983. The complaint consisted of four causes of action. The first three claims alleged acts of medical malpractice on the part of appellees resulting in permanent injury to Christine J. Masitto. The fourth cause of action was brought on behalf of Christine's daughter, Stacy. This cause of action alleged that as a result of the appellees' negligence, Stacy was deprived of her mother's love, companionship, consortium, and services. This cause of action was dismissed by the trial court on the premise that Ohio law does not recognize such legal remedy on behalf of a minor child.

Appellant Christine was admitted to Lake County Memorial Hospital on November 3, 1973. Appellant gave birth to a physically and mentally normal child, Stacy. However, during labor appellant suffered cerebral damage which has left her permanently disabled.

Appellants present one assignment of error:

"The trial court erred when it denied the minor child an independent cause of action for loss of parental care, comfort, society, companionship, instruction and guidance when her parent was injured by the negligence of a third party."

Appellants' assignment of error centers on the issue of whether a minor child may recover for the loss of a parent's affection, companionship and services when that parent is injured as the result of a third party's negligence.

Ohio law does not recognize such a cause of action. Gibson v. Johnston (1956), 75 Ohio Law Abs. 413; Kane v. Quigley (1964), 1 Ohio St.2d 1, 203 N.E.2d 338 . The Supreme Court has reasoned in Kane, supra, that there is no statutory basis for recovery and one does not exist at common law. The trial court, as well as this court, is bound by the law as declared by the Ohio Supreme Court. Battig v. Forshey (1982), 7 Ohio App.3d 72, 454 N.E.2d 168. This is not a case of first impression where we may be more flexible.

Appellant has pointed out that the legislature provides for recovery by a child under R.C....

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9 cases
  • Bowen v. Kil-Kare, Inc.
    • United States
    • Ohio Supreme Court
    • February 26, 1992
    ...1 Ohio St.2d 1, 30 O.O.2d 1, 203 N.E.2d 338, has effectively foreclosed the maintenance of such actions. See Masitto v. Robie (1985), 21 Ohio App.3d 170, 21 OBR 181, 486 N.E.2d 1258, and Sanders v. Mt. Sinai Hospital (1985), 21 Ohio App.3d 249, 21 OBR 292, 487 N.E.2d 588. See, also, Gibson ......
  • High v. Howard
    • United States
    • Ohio Supreme Court
    • June 24, 1992
    ...Id. at 3, 30 O.O.2d at 2, 203 N.E.2d at 340. Kane has generally been followed by Ohio appellate courts. Masitto v. Robie (1985), 21 Ohio App.3d 170, 21 OBR 181, 486 N.E.2d 1258; Sanders v. Mt. Sinai Hospital (1985), 21 Ohio App.3d 249, 21 OBR 292, 487 N.E.2d 588; Viock v. Stowe-Woodward Co.......
  • Vaughn v. Clarkson
    • United States
    • North Carolina Supreme Court
    • February 9, 1989
    ...v. Winger, 290 N.W.2d 266 (N.D.1980); Sanders v. Mt. Sinai Hospital, 21 Ohio App.3d 249, 487 N.E.2d 588 (1985); Masitto v. Robie, 21 Ohio App.3d 170, 486 N.E.2d 1258 (1985); Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 652 P.2d 318 (1982); Steiner v. Bell Tele. Co., 358 Pa.Sup......
  • Debbie Farley, Parent and Next Friend of Stanley Farley , a Minor, Mindie Farley, a Minor, Dawn Farley, a Minor v. Progressive Casualty Ins. Co.
    • United States
    • Ohio Court of Appeals
    • February 21, 1992
    ...where the Court of Appeals for Allen County summarily stated that Ohio does not recognize a loss of parental consortium claim citing Masitto, supra, Sanders, supra, and supra. We decline to follow these appellate court decisions. In 1986, this court, in Viock v. Stowe-Woodward Company (Mar.......
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