Reben v. Ely, 2

• Decision Date: 25 March 1985
• Docket Number: CA-CIV,No. 2,2
• Citation: 146 Ariz. 309,705 P.2d 1360
• Parties: , 54 A.L.R.4th 101 William REBEN and Janice Reben, as conservators of the Estate of Frank Reben, a minor; and William Reben and Janice Reben, individually, Plaintiffs/Appellees, v. George B. ELY, M.D. and Evelyn Ely; John B. Kurtin, M.D. and Margaret Kurtin; Rose Hougland and Ernestine Miller, individually and as employees of Associated Ear, Nose and Throat Specialties, Ltd. and George B. Ely, M.D., P.C.; Associated Ear, Nose and Throat Specialties, Ltd.; and George B. Ely, M.D., P.C.; and State of Arizona, Defendants/Appellants. 5174.
• Court: Arizona Court of Appeals

Page 1360

705 P.2d 1360

146 Ariz. 309, 54 A.L.R.4th 101

William REBEN and Janice Reben, as conservators of the Estate of Frank Reben, a minor; and William Reben and Janice Reben, individually, Plaintiffs/Appellees, v. George B. ELY, M.D. and Evelyn Ely; John B. Kurtin, M.D. and Margaret Kurtin; Rose Hougland and Ernestine Miller, individually and as employees of Associated Ear, Nose and Throat Specialties, Ltd. and George B. Ely, M.D., P.C.; Associated Ear, Nose and Throat Specialties, Ltd.; and George B. Ely, M.D., P.C.; and State of Arizona, Defendants/Appellants.

No. 2 CA-CIV 5174.

Court of Appeals of Arizona Division 2, Department A.

March 25, 1985.

Rehearing Denied May 6, 1985.

Review Denied Sept. 4, 1985.

Law Offices of Richard D. Grand by James G. Heckbert and Richard D. Grand, Tucson, for plaintiffs/appellees.

Slutes, Sakrison, Grant & Pelander, P.C. by Tom Slutes, Tucson, for defendants/appellants Ely.

Chandler, Tullar, Udall & Redhair by Jack I. Redhair, Tucson, for defendants/appellants Kurtin, Hougland, Miller, and Associated Ear, Nose and Throat.

Kimble, Gothreau, Nelson & Cannon by Darwin J. Nelson, Tucson, for defendants/appellants Kurtin.

Robert K. Corbin, Atty. Gen. by Richmond K. Turner and O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.A. by Larry L. Smith, Phoenix, for defendant/appellant State of Ariz.

OPINION

BIRDSALL, Presiding Judge.

Appellants present one single and unique question of first impression in this state, whether there is a cause of action available to parents in Arizona for the loss of consortium of an injured child. We are convinced that such a cause of action ought to be available and we affirm.

The facts of the case are of little significance to the legal question involved. Frank Reben, age 10, was administered a dosage of liquid cocaine, mistakenly thought to be liquid Tylenol. He suffered severe and permanent brain damage as a result of the mistake. In addition to damages awarded to the injured boy's estate, $5 million, his parents were awarded $500,000 for past and future services to their son, and $1,000,000 for loss of consortium, or as framed in the complaint, "the loss of his love, society, companionship and the right of every parent to have the society and companionship of a normal child free from injury caused by the wrongful conduct of another." Appellants do not contest the finding of liability or the damages awarded to the child's estate. Nor do they contest the $500,000 award to the parents for services. Their sole issue is that loss of filial consortium is not a cognizable cause of action in Arizona and that therefore the judge erred in permitting evidence and in instructing on that element of the parents' injury.

Loss of consortium is a recognized cause of action in Arizona as it is applied to spousal relations. Originally only the husband was entitled under common law to damages for the loss of consortium of his wife. As recently as 1954, the common law of this state denied the wife equivalent damages for loss of consortium. In Jeune v. Del E. Webb Construction Co., 77 Ariz. 226, 269 P.2d 723 (1954), the court declined the offered opportunity to rewrite the common law. Jeune was subsequently overruled by City of Glendale v. Bradshaw, 108 Ariz. 582, 503 P.2d 803 (1972). There, our supreme court traced the history of the common law as it applied to a husband's right to loss of consortium damages, then observed that there were no reported cases in Arizona recognizing that right. Nevertheless, the court felt that the time had come to change the common law as it applied to a wife's recovery.

Quoting Lueck v. Superior Court, 105 Ariz. 583, 469 P.2d 68 (1970), the Bradshaw court observed,

" 'When we find that the common law or "judge-made law" is unjust or out of step with the times, we have no reluctance to change it.' " 108 Ariz. at 584, 503 P.2d at 805.

Appellees the Rebens argue that it is not necessary to declare a change in the common law of Arizona to accomplish an award of damages for filial loss of consortium. They argue that Arizona Revised Statute § 12-641 ¹ is a sufficient vehicle, read broadly, to allow such award. This view echoes the suggestion in a recent law review. Comment, the Parental Claim for Loss of Society and Companionship Resulting From the Negligent Injury of a Child: A Proposal for Arizona, 1980 Ariz.St.L.J. 909.

We decline to resort to such statutory manipulation. The purpose of § 12-641 is to specify who may bring an action to represent an injured child, and it amends a previous statute which allowed only the father of the child, except in the case of death or desertion by the father, to bring such action. We do not feel that a broadening of a cause of action can be read into the statute.

Appellants argue that such expansion of the law in this state should await a legislative declaration of public policy. They similarly rely on the Comment, supra, which proposed wording to amend § 12-641, or alternatively, Arizona's wrongful death statute to include "injury" as well as death. Noting that the legislature has entirely failed to act upon these suggested changes, the appellants conclude that the inaction is an indication of public policy of the state which mandates no change. We disagree equally with this position. Like Justice Feldman of our supreme court, we cannot find an expression of intent in the absence of legislative action. See Ontiveros v. Borak, 136 Ariz. 500 at 512, 667 P.2d 200 at 212 (1983). We note Justice Feldman's explanations of legislative inaction:

"There are many reasons why bills are not reported out of committee. For example: the bill may be opposed by a particular committee member or by the chairperson; efforts of special interest groups and lobbyists may be successful at the committee level; or a lack of time for consideration of the bill may prevent passage by the committee.

* * * The legislature may well believe that when a judge-made common law rule has become obsolescent, anachronistic and unjust, the responsibility for change is ours, not theirs. There is no reason that we should refuse to act within our power and perform our duty when by so doing we further legislative objectives." Id.

Likewise, we also add that expansion of tort law claims is peculiarly within the realm of our judicial, rather than legislative, system. Tort law, like contract law, concerns private relations between parties. Our legislature's concern is with public law, the relation of the state to its citizens. For that reason, we are content to read A.R.S. § 12-641 to reflect a policy of who may come into court on behalf of another, not what law or claims they will argue there.

Having thus explained our reasons for concluding that recognizing this claim for filial loss of consortium due to the negligence of a third party is a function of the courts rather than the legislature, we now proceed to examine whether the time has arrived for Arizona law to so recognize the claim.

Our analysis recognizes a tension between the parties' understandings of the rationale behind a negligent tort action. Appellants state an assumption that the purpose of such action is to deter the tortfeasor, noting that statutory wrongful death causes of action prevent a tortfeasor from escaping liability simply because the victim dies rather than survives the injury. Such assumption goes hand in hand with the public policy appellants propound of discouraging behavior which leads to tortious injury. This analysis falls short, we feel, in the area of negligent torts. Nevertheless, the appellants argue that the jury verdict in the instant case is sufficient to "send a message" discouraging such behavior in other potentially negligent tortfeasors. Our modification of the jury's award would likely go unnoticed by such tortfeasors, if appellants' argument is followed to its logical conclusion. We shudder to think that any modification reducing the award, if noticed, would encourage potential tortfeasors to further negligence.

Appellees counter this assumption with the understanding that the purpose of a negligence cause of action is to make the injured party whole. Noting that one of the elements of a cause of action founded upon negligence from which liability will follow is actual loss or damage resulting to the interests of another, Prosser (W. Prosser and W. Keeton, Law of Torts, 5th ed. 1984, p. 165) writes:

"Negligent conduct in itself is not such an interference with the interests of the world at large that there is any right to complain of it, or to be free from it, except in the case of some individual whose interests have suffered."

In a broader sense,

"[t]he law of torts, then, is concerned with the allocation of losses arising out of human activities; and since these cover a wide scope, so does this branch of the law. 'Arising out of the various and ever-increasing clashes of the activities of persons living in a common society, carrying on business in competition with fellow members of that society, owning property which may in any of a thousand ways affect the persons or property of others--in short, doing all the things that constitute modern living--there must of necessity be losses, or injuries of many kinds sustained as a result of the activities of others. The purpose of the law of torts is to adjust these losses, and to afford compensation for injuries sustained by one person the result of the conduct of another.' " Prosser and Keeton, supra, at 6, quoting Wright, Introduction to the Law of Torts, 8 Camb.L.J. 238 (1944).

Our task, therefore, is to determine whether the loss of love, companionship, society, affection; in short, of consortium, of a child is such a loss and if it is compensable by the party liable for the loss. Our courts have frequently been presented this question in cases of wrongful death. Our wrongful death statute provides " § 12-613. Measure of damages; nonliability for debts...