Siciliano v. Capitol City Shows, Inc.

Decision Date09 April 1984
Docket NumberNo. 83-160,83-160
Citation124 N.H. 719,475 A.2d 19
PartiesArnoldo M. SICILIANO et al. v. CAPITOL CITY SHOWS, INC. d/b/a Marc's Amusements, Inc. et al. John J. SANTUCCIO et al. v. CAPITOL CITY SHOWS, INC. d/b/a Marc's Amusements, Inc. et al.
CourtNew Hampshire Supreme Court

Law Offices of James J. Kalled, Ossipee (James B. Kazan, Ossipee, on brief and orally), for plaintiffs.

Wiggin & Nourie, Manchester (Wilfred J. Desmarais, Jr. (orally), and Alan R. Kusinitz, Manchester, on brief), for defendant Capitol City Shows, Inc. d/b/a Marc's Amusements, Inc.

Law Offices of Augustine J. McDonough, Manchester, for defendant Empire Fire and Marine Insurance Company, adopted the position taken in the brief of Capitol City Shows, Inc.


The plaintiffs appeal from a decision of the superior court which dismissed their actions claiming damages for the parental loss of a child's society, and their actions alleging strict liability against the defendant Capitol City Shows, Inc. We affirm.

These actions arose from an amusement ride accident which occurred on July 1, 1981, at a carnival in North Conway. The defendant Capitol City Shows, Inc., was the amusement ride operator, the defendant Empire Fire and Marine Insurance Company was the insurer of the ride and the defendant Richard Tracy allegedly inspected the ride prior to the accident. As a result of the accident, Veronica Siciliano, a minor, sustained cerebral injury and Lisa Santuccio, also a minor, died.

Arnoldo Siciliano, as the father and next friend of Veronica Siciliano, and John Santuccio, as administrator of the estate of Lisa Santuccio, initiated actions seeking damages from all the defendants on the ground of negligence and against Capitol City Shows, Inc., on the additional ground of strict liability. Also, the parents of each minor child initiated their own lawsuit against all the defendants, claiming damages for the loss of society of the respective children.

The Superior Court (Wyman, J.), upon the recommendation of the Master (Charles T. Gallagher, Esq.), dismissed the strict liability counts against Capitol City Shows, Inc. Additionally, the court dismissed the counts seeking recovery by the Santuccios for the loss of society of their daughter and denied the Sicilianos' motion to amend their complaint to recover for the loss of society of their daughter. The dismissals were based on the plaintiffs' failure to state causes of action.

The plaintiffs first ask this court to create a cause of action for parental loss of society of a minor child injured or killed as a result of negligent conduct. They argue that recognition of such a cause of action is a natural extension of common law and will reaffirm this State's proclaimed interest in the preservation of the family relationship.

In the abstract, the plaintiffs' claim carries enormous sympathetic appeal. No one can deny the loss a parent must feel when deprived, even temporarily, of the comfort and companionship of a child. Indeed, this court has recognized the importance of maintaining the integrity of the family relationship. See, e.g., State v. Robert H., 118 N.H. 713, 715-16, 393 A.2d 1387, 1388-89 (1978). However, not every "foreseeable injury to a legally recognized relationship necessarily postulates a cause of action ...." Borer v. American Airlines, Inc., 138 Cal.Rptr. 302, 305, 19 Cal.3d 441, 446, 563 P.2d 858, 861 (1977).

In New Hampshire, two common-law causes of action arise when a minor child is injured by the negligent act of another: one by the child for personal injuries; another by a parent for pecuniary damages, such as loss of services and expenses caused by the injury to the child. Heath v. Seymour, 110 N.H. 425, 429, 270 A.2d 602, 605 (1970). A parent may recover for the loss of a child's services because he or she is entitled to the services of a minor child. Beaudoin v. Beaudoin, 118 N.H. 325, 327, 386 A.2d 1261, 1263 (1978). This parental right grows out of the obligation of the parent to support and educate the child and is contingent upon the parent actually retaining custody of and supporting the child. Lessard v. Company, 83 N.H. 576, 578, 145 A. 782, 784 (1929); Hillsborough v. Deering, 4 N.H. 86, 95 (1827); see Hammond v. Corbett, 50 N.H. 501, 505, 507-08 (1871). This parental right has been compared to the right of a master to recover against anyone who interferes with the master-servant relationship. See Whitaker v. Warren, 60 N.H. 20, 26 (1880); see also Sargent v. Mathewson, 38 N.H. 54, 57-58 (1859); Campbell v. Cooper, 34 N.H. 49, 68 (1856) (both cases involve enticing and harboring plaintiff's servant); Davidson v. Goodall, 18 N.H. 423, 426 (1846) (seduction of plaintiff's servant).

Therefore, at common law, based on the parental obligation to maintain a child, a parent could recover for pecuniary losses incurred as a result of a negligently inflicted injury to that child. A parent was not entitled to recover for his or her independent or intangible injuries resulting from the negligent injury to a child. See Courage v. Carleton, 96 N.H. 348, 350, 77 A.2d 111, 113 (1950). Thus, the common-law cause of action for loss of a child's services does not argue for the expansion of liability flowing from a single tortious act.

Generally, at common law,

"negligence as a legal source of liability gives rise only to an obligation to compensate the person immediately injured, not anyone who predictably suffers loss in consequence of that injury, unless liability for that person's consequential loss has a legal source besides its foreseeability."

Norwest v. Presbyterian Intercommunity Hosp., 652 P.2d 318, 333 (Or.1982). In this case, we are asked to extend the liability of a negligent tortfeasor to cover harm to a plaintiff which occurs as a consequence of an injury to a third party, when that harm is emotional and unrelated to any injury to the plaintiff's physical person or tangible property.

The determination whether so to extend liability arising from a single tortious act must be based on public policy considerations, with reference to judicial and statutory precedent. See Corso v. Merrill, 119 N.H. 647, 654, 406 A.2d 300, 304-05 (1979); see also Baxter v. Superior Court of Los Angeles Cty., 138 Cal.Rptr. 315, 317, 19 Cal.3d 461, 464, 563 P.2d 871, 873 (1977); DeAngelis v. Lutheran Medical Center, 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 627-28, 449 N.E.2d 406, 407-08 (1983).

Compelling public policy reasons militate against this court recognizing a cause of action allowing parents to recover for loss of a child's society. Loss of a child's society is an intangible, nonpecuniary loss which can never properly be compensated by money damages. The emotional nature of the loss makes defining and quantifying damages difficult, which may lead to disproportionate awards. We also note the probability of increased litigation and multiple claims, which will hinder settlements and increase expenses. See Curtis v. County of Cook, 109 Ill.App.3d 400, 409, 65 Ill.Dec. 87, 440 N.E.2d 942, 948 (1982); Baxter v. Superior Court of Los Angeles Cty. supra. "Additionally, the social burden of providing damages for this loss will ultimately be borne by the public through increased insurance premiums or in the enhanced danger that accrues from the greater number of people who will choose to go without insurance." Koskela v. Martin, 91 Ill.App.3d 568, 47 Ill.Dec. 32, 572, 414 N.E.2d 1148, 1151 (1980); Borer v. American Airlines, Inc., 138 Cal.Rptr. 302, 306, 19 Cal.3d 441, 447, 563 P.2d 858, 862 (1977).

However, this court has allowed recovery for some intangible losses suffered by the secondary victim. Therefore, it is necessary to examine those cases to determine if they support the recognition of a new cause of action regardless of public policy reasons against such a result.

An action for loss of spousal consortium during the survival of the injured spouse may be compared to the action the plaintiffs urge us to recognize. In New Hampshire, a husband had a common-law cause of action for loss of consortium caused by injuries inflicted upon his wife. Guevin v. Railway, 78 N.H. 289, 296, 99 A. 298, 302 (1916). The term "consortium" was used to describe the husband's marital rights and included three elements--services, society and sexual rights. Id. at 294, 99 A. at 301. Because the cause of action was based on the marital relationship and not on a master-servant relationship, the husband could recover for loss of impairment to any element; it was not necessary for the husband first to prove loss of services in order to recover. Id. at 295, 99 A. at 302.

At common law, a wife had no marital rights and thus, in Snodgrass v. Cherry-Burrell Co., 103 N.H. 56, 164 A.2d 579 (1964), we held that she could not recover for negligent injury to the marital relationship. It was the legislature in 1967 which, seeking to provide equality between the sexes, conferred upon a wife the right to recover damages for loss or impairment of consortium. RSA 507:8-a; N.H.S.Jour. 626 (1967).

Significant distinctions may be drawn between loss of marital consortium and loss of a child's society. First, many courts have been more willing to protect the relationship between husband and wife than that between parent and child. Brennan v. Biber, 93 N.J.Super. 351, 367, 225 A.2d 742, 751 (1966), aff'd, 99 N.J.Super. 247, 239 A.2d 261 (1968). Second, loss of marital consortium includes impairment of the sexual life of a married couple, which is not an element of the parent-child relationship. Guevin v. Railway supra; see also Koskela v. Martin, 91 Ill.App.3d 568, 572, 47 Ill.Dec. 32, 414 N.E.2d 1148, 1151 (1980); Borer v. American Airlines, Inc., 138 Cal.Rptr. 302, 307, 19 Cal.3d 441, 448, 563 P.2d 858, 863 (1977).

Our reasoning and holding in Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979), which we reaffirm today, also may be compared to the present case. In Corso, this court,...

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