Norwest, By and Through Crain v. Presbyterian Intercommunity Hosp.

• Jurisdiction: Oregon
• Parties: Vernon NORWEST, By and Through his Guardian, Marion CRAIN, Petitioner on review, v. PRESBYTERIAN INTERCOMMUNITY HOSPITAL, an Oregon corporation, and Kenneth Tuttle, M.D., Respondents on review. SC 27982; CA 17847; TC 80-374L.
• Citation: 293 Or. 543,652 P.2d 318
• Court: Oregon Supreme Court
• Decision Date: 05 October 1982

Page 318

652 P.2d 318

293 Or. 543

Vernon NORWEST, By and Through his Guardian, Marion CRAIN Petitioner on review, v. PRESBYTERIAN INTERCOMMUNITY HOSPITAL, an Oregon corporation and Kenneth Tuttle, M.D., Respondents on review.

SC 27982; CA 17847; TC 80-374L.

Supreme Court of Oregon.

Argued and Submitted Feb. 8, 1982.

Reargued and Resubmitted July 23, 1982.

Decided Oct. 5, 1982.

Richard P. Noble, Portland, argued the cause for petitioner on review. With him on the brief was Kathryn H. Clarke, Portland.

Stanley C. Jones, Klamath Falls, argued the cause for respondent Presbyterian Hospital. With him on the brief was Giacomini, Jones & Associates, Klamath Falls.

William L. Hallmark, Portland, argued the cause for respondent Kenneth Tuttle, M.D. With him on the brief was Lang, Klein, Wolf, Smith, Griffith & Hallmark, Portland.

Before LENT, C.J., ^* and LINDE, TANZER, CAMPBELL and CARSON, JJ.

LINDE, Justice.

An action against a physician and a hospital whose negligence permanently disabled plaintiff's mother brings before us the issue whether a minor child may recover damages for the loss that a mother's incapacitation means for the child. According to the complaint, the defendants' negligent treatment caused brain damage that will require the mother to have lifelong custodial care, with the result that "plaintiff has been deprived of his mother's society, companionship, support [and] education" as well as incurring a future obligation to support his mother. A memorandum opposing defendants' motion to dismiss the complaint adds that when the mother was disabled she was 25 years old and the sole surviving parent of the then three-year old plaintiff.

The circuit court accepted the defendants' position that plaintiff's claim was one for "parental consortium" unknown to Oregon law and dismissed the complaint. The Court of Appeals affirmed, three judges dissenting, 52 Or.App. 853, 631 P.2d 1377 (1981), and having allowed review, we also affirm.

I. The basis for decision.

Novel issues of nonstatutory law, and especially tort claims, pose recurring questions of the sources and methods of law. Because other courts examining the child's tort claim for a parent's disablement have based divergent results on a variety of reasons, well briefed by the present parties, we review the reasons that do not as well as those that do enter into our assessment of the present state of Oregon law on this issue.

Discussion of the child's claim often begins with a statement that such a claim was unknown at common law. This implies that to allow the claim means a change in existing law and therefore places on the plaintiff the burden to show why the law should be changed by judges rather than by legislators. ¹ If by "common law" one means the common law of England and those among its one-time dependencies that continued to follow the decisions of English appellate courts, the statement denying the child's claim appears to be correct. See Fleming, The Law of Torts 142, 644 (5th Ed 1977). Until recently, it seemed true also in this country, at least where the issue had been litigated. ² When the Restatement of Torts was revised in 1969, the American Law Institute adopted a new section 707A, denying liability to a minor child for loss of parental support and care, with the comment that the rule was stated "with some reluctance on the part of several of the drafting group, and under compulsion of the case law." ³ This is no longer accurate; recent decisions in three states have recognized a child's claim in cases like that before us. Moreover, other states are counted as rejecting the claim on the strength of decisions of intermediate courts or of federal courts which may prove not to be accurate reflections of the state's law.

Whatever may have been assumed in the early years of American law, the decentralization of private law in our federal system precludes reference to a single American common law. ⁴ When the Supreme Judicial Court of Massachusetts, in Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980), first allowed the children of a man disabled by another's negligence to demand damages for mental anguish and loss of consortium and society, the court did not purport to change the common law of Massachusetts. It undertook to relate the claim to the state's existing law without assuming that, in the absence of a prior decision, it would be more a change to allow the claim than to deny it. Like that court, we do not assume that without some radical innovation, present law precludes liability to the minor children of a person disabled by a defendant's negligence, an assumption that calls into question the roles of court and legislature in such innovations. That question is proper, even unavoidable, when a court is asked to depart from its own well-settled prior doctrine; but when a claim is new to this court, either a decision for or one against liability may be harder to square with established law. The Court of Appeals rightly considered the child's claim to be open for judicial decision, although the majority and the dissent divided over the significance of existing legislation in deciding it.

That a novel issue is open to judicial resolution says little about how to resolve it. Analysis often depends on the starting point from which one enters upon it. Two characteristics of the claim at issue here are that the injury to the plaintiff occurs as a consequence of an injury to another person, and that this consequential injury is to plaintiff's psychic interests rather than to his physical person or tangible property. If one starts from a broad premise that every person predictably injured by another's negligence is entitled to recover appropriate damages, defendants are hard put to present a compelling obstacle to allowing such damages to a child negligently deprived of a functioning parent. Starting, on the other hand, from a body of negligence law that generally imposes liability only to the initial victim but not to others who depend on that victim, and no liability for psychic harm divorced from tangible injury, a plaintiff is hard put to show how and why such liability extends to the minor children of a disabled parent but to no other classes of plaintiffs whose comparable interests are similarly harmed.

A number of courts have undertaken to allow or deny the child's action for loss of parental society, care, and support by assessing numerous arguments of policy and practicality adduced for and against such a cause of action. An examination of these arguments will explain why we do not follow that course.

In one of the early decisions to consider the issue, the Supreme Court of Kansas sympathetically stated the case for the child's claim:

"It is common knowledge that a parent who suffers serious physical or mental injury is unable to give his minor children the parental care, training, love and companionship in the same degree as he might have but for the injury. Hence, it is difficult for the court, on the basis of natural justice, to reach the conclusion that this type of action will not lie. Human tendencies and sympathies suggest otherwise. Normal home life for a child consists of complex incidences in which the sums constitute a nurturing environment. When the vitally important parent-child relationship is impaired and the child loses the love, guidance and close companionship of a parent, the child is deprived of something that is indeed valuable and precious. No one could seriously contend otherwise."

Hoffman v. Dautel, 189 Kan. 165, 168, 368 P.2d 57, 59 (1962). The court nevertheless rejected the claim because of "far-reaching results," which it identified as the growth of a "new field of litigation" with the possibilities of multiple actions and double recovery. Id. The New Jersey Supreme Court later denied the child's cause of action upon similar "considerations of policy." Russell v. Salem Transportation Co., 61 N.J. 502, 295 A.2d 862 (1972). The court assumed that jury verdicts for an injured parent took into account the consequential injury to children and considered this preferable to the separate appraisal and cumulation of multiple awards arising out of a single incident and the segregation of damages awarded the child from the parents' disposition of the overall family finances.

Academic commentary has been critical, finding none of the concerns stated by the Kansas court to be "persuasive." Clark, Law of Domestic Relations 279 (1968). Dean Prosser characteristically was more outspoken:

"It is not easy to understand and appreciate this reluctance to compensate the child who has been deprived of the care, companionship and education of his mother, or for that matter his father, through the defendant's negligence. This is surely a genuine injury, and a serious one, which has received a great deal more sympathy from the legal writers than from the judges. There is of course the same problem of preventing double compensation as in the case of the wife's action, since the child will to some extent benefit by any sum recovered by the injured parent; but it is quite evident that this will not and cannot recompense him for all that he has lost. The obstacles in the way of satisfactory limitation of recovery are no greater than in the case of the wife." (Footnotes omitted).

Prosser, The Law of Torts 896-97 (4th ed 1972). Two articles published in 1976 reviewed the arguments against a child's cause of action for the intangible harm of a parent's disablement in more detail and found them without merit. Love, supra note 2; Note, supra n. 2.

Nevertheless, the California Supreme Court in 1977 declined to recognize what it called "a new cause of action for loss of consortium in a parent-child relationship." Borer v. American Airlines, 19 Cal.3d 441, 563 P.2d 858, 860, 138 Cal.Rptr. 302 (1977) (child's action); Baxter v. Superior Court of Los Angeles County, 19 Cal.3d 461,...