Russell v. Salem Transp. Co., Inc.
Decision Date | 24 October 1972 |
Citation | 69 A.L.R.3d 522,61 N.J. 502,295 A.2d 862 |
Parties | , 69 A.L.R.3d 522 Mary RUSSELL, Administratrix ad Prosequendum of the Estate of Lawrence H. Russell, Jr., deceased, et al., Plaintiffs-Appellants, v. SALEM TRANSPORTATION COMPANY, INC., et al., Defendants-Respondents. |
Court | New Jersey Supreme Court |
Louis A. Veronica, Camden, for plaintiffs (Thomas A. Lunn, Camden, attorney).
Carl Kisselman, Camden, for defendants (Kisselman, Deighan, Montano, King & Summers, Camden, attorneys, Arthur Montano, Camden, of counsel).
The opinion of the Court was delivered by
CONFORD, P.J.A.D., Temporarily Assigned.
We are asked to decide, for the first time in New Jersey's common-law jurisprudence, that one who negligently injures a parent of minor children is liable to such children for damages for their deprivation of the 'aid, comfort, companionship, loss of services and earnings' of the parent attributable to the injuries. The Law Division and on appeal the Appellate Division disallowed such a cause of action. We granted certification. 60 N.J. 354, 289 A.2d 799 (1972). Upon thorough consideration of the substantial policy questions implicated, we affirm the action of the lower tribunals.
Lawrence Russell, Jr., owner of one of the motor vehicles involved in a two-car collision, was a passenger therein along with his wife, Mary Russell, and another woman, the car being driven by an emancipated son of the Russells. Lawrence was killed and Mary severely injured as a result of the accident. An action was brought against defendants, owner and driver of the other car, encompassing a count for wrongful death of Lawrence, other counts for personal injuries on behalf of all the passengers in the Russell car, and the count here in question--by the three minor children of the Russells for the deprivations mentioned above, past and future, allegedly due to the impaired condition of their mother, Mary Russell, resulting from the accident.
Of the ten or eleven American jurisdictions whose courts have heard pleas for the declaration of the existence of one form or another of the basic cause of action contended for here, all have responded in the negative. 1 See the cases cited in Annot., 59 A.L.R.2d 454 (1958) and also Pleasant v. Washington Sand & Gravel Co., 104 U.S.App.D.C. 374, 262 F.2d 471 (1958); Hoffman v. Dautel, 189 Kan. 165, 368 P.2d 57 (Sup.Ct.1962); Hayrynen v. White Pine Copper Company, 9 Mich.App. 452, 157 N.W.2d 502 (Ct.App.1968); Turner v. Atlantic Coast Line Railroad Co., 159 F.Supp. 590 (N.D.Ga.1958); Erhardt v. Havens, Inc., 53 Wash.2d 103, 330 P.2d 1010 (Sup.Ct.1958); General Electric Company v. Bush, Nev. 498 P.2d 366, 371 (Sup.Ct.1972).
It has been said that persuasive grounds exist, as a matter of logic and natural justice, for recognition of a cause of action on behalf of minors disadvantaged by the negligent impairment of the capacities of a parent. See Prosser, Torts, § 125, p. 896 (4 ed. 1971), and writings in legal periodicals there cited; Hoffman v. Dautel, Supra, 368 P.2d at 59; Hill v. Sibley Memorial Hospital, 108 F.Supp. 739, 741 (D.C.1952). 2 The only previous allusion by this court to the issue was the following expression in Ekalo v. Constructive Serv. Corp. of America, 46 N.J. 82, 92, 215 A.2d 1, 6 (1965), the decision recognizing a wife's claim for loss of consortium of an injured husband.
In the case last cited in the foregoing excerpt (and also cited hereinabove) the Court of Appeals for the District of Columbia held that notwithstanding the court had previously upheld a wife's right to recover for loss of consortium caused by negligent injury of the husband, on grounds of the reciprocally equal status of spouses in the marriage relation, no comparable justification existed for creating a right on the part of a child 'for loss of personal care, affection and companionship' against third persons when the parent himself was under no legal obligation to the child to provide those amenities. (262 F.2d at 473).
As we said in Ekalo, supra, logic (and even abstract justice) must defer to overall policy in the appraisal of the justification for judicial changes in the common law. Several considerations of policy, taken cumulatively, conduce to the considered conclusion that we should not at this time create the postulated cause of action.
If the claim were allowed there would be a substantial accretion of liability against the tortfeasor arising out of a single transaction (typically the negligent operation of an automobile). Whereas the assertion of a spouse's demand for loss of consortium involves the joining of only a single companion claim in the action with that of the injured person, the right here debated would entail adding as many companion claims as the injured parent had minor children, each such claim entitled to separate appraisal and award. The defendant's burden would be further enlarged if the claims were founded upon injuries to both parents. Magnification of damage awards to a single family derived from a...
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