Roth v. Bell

• Decision Date: 04 September 1979
• Docket Number: No. 6209-I
• Citation: Roth v. Bell, 600 P.2d 602, 24 Wn.App. 92 (Wash. App. 1979)
• Parties: Ronald M. ROTH and Judy Roth, husband and wife, and Ronald M. Roth, guardian ad litem for Troy Collins, Rickie Collins and Lisa Collins, minors, Appellants, v. Charles D. BELL, M. D., Carl Allen, M. D., Respondents/Cross-Appellants, and Ortho Pharmaceutical Corporation, Respondent.
• Court: Washington Court of Appeals

Page 92

24 Wn.App. 92

600 P.2d 602

Ronald M. ROTH and Judy Roth, husband and wife, and Ronald M. Roth, guardian ad litem for Troy CollinsRickie Collins and Lisa Collins, minorsAppellants, v.Charles D. BELL, M. D., Carl Allen, M. D.Respondents/Cross-Appellants and Ortho Pharmaceutical Corporation, Respondent.

No. 6209-I.

Court of Appeals of Washington, Division 1.

Sept. 4, 1979.

Kleist & Davis, Donald K. Davis, Robert W. Fetty, Seattle, for appellants.

Williams, Lanza, Kastner & Gibbs, Thomas H. Fain, Seattle, for respondent Bell.

Lycette Diamond & Sylvester, Earle W. Zinn, John T. Petrie, Seattle, for respondent/cross-appellantCarl W. Allen.

Reed, McClure, Moceri & Thonn, P. S., Kathy A. Cochran, Seattle, for respondentOrtho Pharmaceutical Corp.

CALLOW, Chief Judge.

On May 28, 1973, Judy Roth suffered a stroke allegedly occasioned by her ingestion of birth control pills manufactured by Ortho Pharmaceutical Corporation and prescribed for her by Dr. Charles D. Bell and Dr. Carl W. Allen.On May 18, 1976, Mrs. Roth and her husband, Ronald Roth, filed suit against Drs. Bell and Allen, alleging negligence, and against Ortho, alleging negligence and strict liability.Mr. Roth, as guardian ad litem for Mrs. Roth's three minor children, Troy, Rickie and Lisa Collins, also claimed damages on the same allegations "for loss of companionship, advice, destruction of the parent-child relationship, and future support, and emotional injury."The trial court granted the defendants' motions for dismissal of the children's action for failure to state a claim, and denied the motions of Drs. Bell and Allen for summary judgment against the Roths.Appeal is taken from the dismissal of the children's action, and Drs. Bell and Allen cross-appeal the denial of their motions for summary judgment.

Mr. Roth argues on behalf of the Collins children that this court should alter the common law to allow minor children a cause of action for their loss of parental "consortium" occasioned by negligent injury to their parent by a third party.As a preliminary matter, the defendants contest the nature and extent of Mrs. Roth's impairment, and consequently the loss suffered by her minor children.In making the essentially legal determination of whether there is any state of facts that the plaintiffs could prove entitling them to relief under their claim, we accept as true, the factual allegations of the complaint and, where necessary, those facts raised for the first time on appeal.CR12(b)(6);Halvorson v. Dahl, 89 Wash.2d 673, 674-75, 574 P.2d 1190(1978);Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 742, 565 P.2d 1173(1977);Barnum v. State, 72 Wash.2d 928, 435 P.2d 678(1967).The fact and cause of Mrs. Roth's stroke have already been noted.As a result, she has suffered significant, serious and permanent physical impairments, including a loss of mobility and an inability to speak and carry on conversations in a normal manner.Due to her impairments, she has not been able to care for or interact with her children in the same manner as she could prior to her stroke; thus, the quality of society that they normally would have had with their mother and the quality of their mother's parenting has been significantly diminished.

The issue raised is whether minor children have a separate cause of action for loss of parental consortium when one of the minors' parents is injured and the injury does not result in death.We must ask as inquiries within the main issue (a) whether prior Washington law has decided this issue; (b) whether the legislature's enactment and amendments of RCW 4.24.010 evidence an intent to preclude consideration of such a claim by children; and (c) whether a change of the common law in this instance falls within the province of the courts or the legislature.

The main guidepost from the decisions in this state is Erhardt v. Havens, Inc., 53 Wash.2d 103, 105, 330 P.2d 1010(1958), wherein the plaintiff-infants, by their father as guardian ad litem, sued the defendant-hospital alleging that the hospital's negligence caused their mother to become permanently paralyzed and mentally incapable of recognizing them.There was no hope of the mother's recovery, and the minors claimed that therefore they were damaged to the same extent as if she were dead.The trial court, acting under the old practice, sustained a demurrer and dismissed the action.On appeal, the hospital conceded that if the mother's injuries disabled her " 'from supporting and providing care, training and education for her minor children,' " then those elements of damage would, if proven, be recoverable in an action maintained by the mother in her own behalf.Erhardt v. Havens, Inc., supra at 104, 330 P.2d at 1011.The court observed, however, that the action alluded to in the concession would have to be brought in the name of the husband because a cause of action for injuries to a married woman was community personal property over which the husband was then vested by law with exclusive management and control.Erhardt v. Havens, Inc., supra at 105, 330 P.2d 1010.Commending the plaintiffs' concession that their suit was not sanctioned at common law but that the court should reevaluate it, the court held:

This we might do under compelling necessity, but we find no occasion to do so here because the father himself, who is the guardian of the infant appellants, may maintain that action in his own name, and, by the respondent's concession, recover every item of damage claimed by the appellants.

Erhardt v. Havens, Inc., supra at 106-07, 330 P.2d at 1012.

RCW 4.24.010¹ grants to the parents of an injured child a cause of action by which they may recover, among other elements of damage, for loss of the injured child's love and companionship and for "injury to or destruction of the parent-child relationship."The defendants argue that the legislature's enactment of this statute evidences an intention to preclude this court from acknowledging a like cause of action in the child for injuries to a parent.The plaintiffs argue contrarily that recent recognition of intangible injuries, as evidenced by RCW 4.24.010, mandates the grant of a correlative cause of action to minor children.

The precursor to RCW 4.24.010, passed by the territorial legislature in 1869, read:

A father, or in case of the death or desertion of his family, the mother may maintain an action as plaintiff for the injury or death of a child, and a guardian for the injury or death of his ward.

Laws of 1869, ch. 1, § 9, p. 4.Insofar as it related to a parent's cause of action for injury to a child, the statute was but a codification of the English common-law rule allowing a father, a widowed mother or one standing in loco parentis to sue for injury to a child, recovery being limited to the pecuniary value of the loss or diminution of the child's earning power and services and for any increase of the parent's expenses in maintaining the child.Hedrick v. Ilwaco Ry. & Nav. Co., 4 Wash. 400, 404, 30 P. 714(1892); 3 W. Blackstone, Commentaries * 142-43 (Lewis'ed. 1900);C. McCormick, Handbook on the Law of Damages§ 91, at 327-29(1935);W. Prosser, Law of Torts§ 124, at 873 (4th ed. 1971);Note, 56 B.U.L.Rev. 722, 724(1976).The common-law action and remedy were predicated upon and limited by the parents' entitlement to the child's services.The common-law measure of recovery was applied to the statutory cause of action.SeeHedrick v. Ilwaco Ry. & Nav. Co., supra.

In contrast to the common-law rights of a parent, a child had no reciprocal right to the parent's services.Therefore, the child had no cause of action for negligent injury to the parent.Pleasant v. Washington Sand & Gravel Co., 104 U.S.App.D.C. 374, 376, 262 F.2d 471, 473(D.C. Cir.1958);W. Blackstone, Commentaries, supra;H. Clark, Law of Domestic Relations in the United States§ 10.6(1968);W. Prosser, Supra§ 125, at 889-90;Pound, Individual Interests in the Domestic Relations, 14 Mich.L.Rev. 177, 185-86(1916).The purpose of the 1869statute was to overcome the common-law rule that disallowed the maintenance of a civil action for the damages resulting from the death of a human being.The 1869statute enabled a child's parents to bring a civil action for their child's wrongful death.Hedrick v. Ilwaco Ry. & Nav. Co., supra.The loss of the child's services, plus the parents' added expenses, were the predicates upon which the action was based.Lockhart v. Besel, 71 Wash.2d 112, 114-16, 426 P.2d 605(1967);Hedrick v. Ilwaco Ry. & Nav. Co., supra.

The 1869statute remained unchanged through subsequent reenactments in 1873, 1877 and 1881.In 1927, the legislature expanded the act's coverage.²The apparent legislative intent during these years was to retain the common-law action for injuries to a child, and to abrogate the common-law rule that disallowed an action for a child's wrongful death.United States v. Burlington Northern, Inc., 500 F.2d 637, 639(9th Cir.1974);Dernac v. Pacific Coast Coal Co., 110 Wash. 138, 188 P. 15(1920), andWhittlesey v. Seattle, 94 Wash. 645, 163 P. 193(1917), do not support the contention that the legislature's purpose was to foreclose the authority of appellate courts to review the issue before us.Those cases deal with matters of statutory construction concerning the scope of a statute.Further, in relation to those cited caseswe observe that the maxim Expressio unius est exclusio alterius applies where a party is seeking to be brought within the terms of a statute, SeeState v. Roadhs, 71 Wash.2d 705, 430 P.2d 586(1967), not where a party is seeking the creation of a new and independent cause of action.

Lockhart v. Besel, supra, 71 Wash.2d at 116-17, 426 P.2d 605, recognized the limitation of damages to a parent for the solely pecuniary loss of a child's services as an outmoded fiction that provided juries with no measure of recovery and the parents with...