Nulle v. Gillette-Campbell County Joint Powers Fire Bd.

• Decision Date: 14 September 1990
• Docket Number: GILLETTE-CAMPBELL,No. 89-251,89-251
• Citation: 797 P.2d 1171
• Parties: John R. NULLE and Jeanne B. Nulle, as Parents, Next Friends, Guardians, and Co-Conservators of Kathryn Dawn Nulle, Appellants (Plaintiffs), v.COUNTY JOINT POWERS FIRE BOARD, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 1171

797 P.2d 1171

John R. NULLE and Jeanne B. Nulle, as Parents, Next Friends, Guardians, and Co-Conservators of Kathryn Dawn Nulle, Appellants (Plaintiffs), v. GILLETTE-CAMPBELL COUNTY JOINT POWERS FIRE BOARD, Appellee (Defendant).

No. 89-251.

Supreme Court of Wyoming.

Sept. 14, 1990.

Michael A. Maycock of Michael A. Maycock, P.C.; and S. Gregory Thomas of Banks, Johnson & Wolfe, Gillette, for appellants.

Paul J. Drew, Gillette, for appellee.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

GOLDEN, Justice.

Kathryn Dawn Nulle, by her natural parents, appeals from the trial court's dismissal of her claim for loss of parental consortium arising from her natural father's personal injury at the allegedly negligent hands of the Gillette-Campbell County Joint Powers Fire Board (Board).

Both parties agree that the sole question we must answer is whether under Wyoming law a child has a legally cognizable claim for loss of parental consortium against a third-party who negligently injures that child's parent. We hold that Wyoming recognizes the child's claim, reverse the trial court's dismissal of the complaint, and remand for further proceedings consistent with this opinion.

FACTS

According to the complaint filed on behalf of Kathryn Dawn Nulle (Kathryn), she was seven years and three months old on July 27, 1987, when her natural father, John R. Nulle, an employee of Fire Fighters Equipment Company, Inc., was seriously injured by an explosion. The incident occurred when he was filling a tank with compressed air at the fire department operated by the Board in Gillette, Wyoming. Alleging the Board's negligence to have been the proximate cause of her father's injuries, Kathryn claimed she has sustained damages as a result of the injuries to her father, including the loss of her father's care, comfort and society.

The Board filed its motion to dismiss the complaint for failure to state a claim upon which relief can be granted. The trial court held a hearing on that motion and issued its order dismissing the complaint pursuant to W.R.C.P. 12(b)(6). This appeal followed.

STANDARD OF REVIEW

In reviewing a trial court's dismissal of a claim under W.R.C.P. 12(b)(6), we accept the facts alleged in the complaint as true and view them in the light most favorable toward the party opposing the motion below. Cooney v. Park County, 792 P.2d 1287, 1290 (Wyo.1990). Here, Kathryn's complaint has satisfied the requirement that she plead only the operative facts giving rise to her claim in order to give fair notice to the Board. As recognized by the trial court and by the parties in their presentations below and here, the simple question is whether those operative facts constitute a legally cognizable claim in this state.

ANALYSIS

In support of its position urging this court to affirm the trial court's dismissal of the complaint, the Board relies upon the common law view, held by a majority of jurisdictions having decided the question whether a child's parental consortium claim is legally cognizable. ¹ The Board contends that some seven traditional arguments culled from the opinions of the courts that have decided this question present a compelling case for rejecting this claim in Wyoming. Those arguments are: lack of precedent, lack of the child's legal entitlement, multiplicity of suits, difficulty of assessing damages, double recovery, exposure to exorbitant liability, and increased insurance costs. Additionally, the Board notes that Kathryn's claim is not joined with her father's direct personal injury claim and her mother's spousal consortium claim and alleges no economic or special damages.

Kathryn challenges traditional argument by advocating a minority viewpoint that recognizes a child's claim to parental consortium. In addition to meeting the traditional opposing arguments, Kathryn finds major support for her position in Wyoming's wrongful death statute that allows the deceased's survivors, including spouse and children, to recover for loss of probable future companionship, society and comfort. W.S. 1-38-102(c) (Cum.Supp.1987). She points to society's increasing recognition of children's rights, to Wyoming's legislative protection of children in the areas of domestic relations, education, criminal law, labor and employment. She also points to this court's recognition of a wife's claim for loss of her injured husband's consortium. Weaver v. Mitchell, 715 P.2d 1361 (Wyo.1986). We note considerable commentary on this subject. ²

Since the Board urges us to reject the child's claim based on the common law view, we begin our analysis by identifying our common law jurisprudential understanding. In an unwavering line of decisions over the last fifty years, this court has emphasized that

[A]lthough W.S. 8-1-101 adopts the common law as the law of this state, we have held that we will recognize the common law as modified by judicial decisions and will adopt that interpretation which seems best. Krug v. Reissig, 488 P.2d 150, 152 (Wyo.1971); In re Smith's Estate, 55 Wyo. 181, 97 P.2d 677, 681 (1940). Moreover, we have previously expressed a reluctance to recognize, or continue a recognition of, a common law rule that had its genesis in a social, economic and political climate entirely foreign to Wyoming in current times. Weaver v. Mitchell, 715 P.2d 1361, 1369 (Wyo.1986).

Champion Well Service, Inc. v. NL Industries, 769 P.2d 382, 383 (Wyo.1989). In Champion we concluded that, under current social circumstances, the common law rule that permitted an employer's recovery for the loss of an injured employee's services from a negligent third party is "neither well suited to the times nor accepted in modern jurisprudence." Id.

The decision in Champion is consistent with this court's analysis in Gates v. Richardson, 719 P.2d 193 (Wyo.1986) and Weaver. In Weaver, this court rejected the common law rule that a wife could not recover damages for the loss of consortium following the negligent injury of her husband:

We have not hesitated to overrule cases that were based on what was perceived to be the common law at the time the decisions were handed down. McClellan v. Tottenhoff, 666 P.2d 408 (Wyo.1983); and Collins v. Memorial Hospital of Sheridan County, 521 P.2d 1339 (Wyo.1974). We are justified in overruling prior cases grounded on the common law if they stand for an unfair and improper rule or have outlived their usefulness, and do not meet changing needs.

Weaver, 715 P.2d at 1368. In Gates this court rejected the common law rule denying a family member recovery of damages for the negligent infliction of emotional distress. The gradual elimination of outmoded principles becomes evident from these cases.

These decisions reflect Oliver Wendell Holmes' view of the development of the common law:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellowmen, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage.

O.W. Holmes, The Common Law 1 (1881).

With this understanding of the common law's dynamism, we continue our analysis by next considering the nature of the parent-child relationship in today's society. This court has observed that this relationship is "the earliest and most hallowed of the ties that bind humanity * * *." Matter of Adoption of Voss, 550 P.2d 481, 485 (Wyo.1976). In 1982, this court expressed the current belief, contrary to the thinking prevailing in Dickensian England, that "a child should not be viewed as piece of property. * * *." Beardsley v. Wierdsma, 650 P.2d 288, 293 (Wyo.1982). Perhaps the most telling recognition by this court of the nature of the parent-child relationship is found in this court's forcefully stated view that:

The right to associate with one's immediate family is a fundamental liberty protected by the state and federal constitutions. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (integrity of the family unit protected by the due-process clause of the Fourteenth Amendment); and Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (implication that liberties guaranteed by the federal constitution are fundamental) * * *. Analysis of the Wyoming Constitution and case law also leads to the conclusion that the right to associate with one's family is a fundamental liberty. Article 1, Sections 2, 6, 7 and 36, Wyoming Constitution; Washakie County School District Number One v. Herschler, Wyo. 606 P.2d 310 (1980); Matter of Adoption of Voss, Wyo., 550 P.2d 481 (1976); and In re Adoption of Strauser, 65 Wyo. 98, 196 P.2d 862 (1948).

DS v. Department of Public Assistance and Social Services, 607 P.2d 911, 918 (Wyo.1980). Accord, TR v. Washakie County Department of Public Assistance, 736 P.2d 712, 715 (Wyo.1987); Matter of MLM, 682 P.2d 982, 990 (Wyo.1984); Matter of GP, 679 P.2d 976, 981-82 (Wyo.1984).

The United States Supreme Court has emphasized: "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645, 652 (1944). ³

Having examined the nature of the parent-child relationship at...