Suter v. Leonard

• Citation: 45 Cal.App.3d 744,120 Cal.Rptr. 110
• Court: California Court of Appeals
• Decision Date: 05 March 1975
• Parties: Jodie Lynn SUTER, a minor by her guardian ad litem, Edwin P. Hart, Plaintiff and Appellant, v. James D. LEONARD et al., Defendants and Respondents. Civ. 43967.

Page 110

120 Cal.Rptr. 110

45 Cal.App.3d 744

Jodie Lynn SUTER, a minor by her guardian ad litem, Edwin P. Hart, Plaintiff and Appellant, v. James D. LEONARD et al., Defendants and Respondents.

Civ. 43967.

Court of Appeal, Second District, Division 2, California.

March 5, 1975.

As Modified April 1, 1975.

Hearing Denied May 22, 1975.

Payson, Epstein & Fife by Phillip K. Fife, Los Angeles, for appellant.

Dryden, Harrington & Swartz, Raphael Cotkin, Peter Abrahams, Los Angeles, for respondents James D. Leonard and Varner-Ward Leasing Co.

Gilbert, Kelly, Crowley & Jennett, Los Angeles, for respondent California Motor Express, Ltd.

John H. Larson, County Counsel, Richard G. Brungard, Deputy County Counsel, Los Angeles, for respondent County of Los Angeles.

FLEMING, Associate Justice.

Plaintiff Jodie Lynn Suter, a minor, appeals the judgment dismissing for failure to state a cause of action her complaint for $150,000 damages for loss of the 'society, care, protection, support and affection of her mother.'

Plaintiff alleged that her mother, Barbara Suter (who is seeking $2,000,000 damages for herself in the same lawsuit) was injured in a 1971 automobile accident caused by defendants' negligence and as a result incurred physical injuries that left her disabled and unable to care for plaintiff. Until the accident the daughter, born in 1962 and now in the custody of her divorced mother, enjoyed the society, care, protection, support, and affection of her mother. Defendants should have foreseen that their negligence would injure persons on the highway and could harm the minor children of the persons injured by depriving them of parental care. Plaintiff asserts she has been substantially deprived of parental care in that her mother has been unable to care for and support her or engage in normal mother-daughter activities. She concedes that no California case expressly authorizes recovery of damages by a child for loss of parental society, care, protection, support, and affection, caused by negligent injury to the parent. Novertheless, she contends that such a cause of action exists, that her loss is a reasonably foreseeable consequence of defendants' conduct, that to deny her a right of action deprives her of equal protection and due process of law.

Plaintiff's claim, viewed in the abstract and divorced from its surroundings, carries both logical and sympathetic appeal. In Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669, the Supreme Court recognized a right of action in a married person for loss of consortium caused by a third person's negligent injury to the married person's spouse. Certain aspects of spousal relationship are similar to those of the parent-child relationship, and there can be little question of the reality of the loss suffered by a child deprived of the society and care of its parent.

Nevertheless, our decision must take into account considerations in addition to logical symmetry and sympathetic appeal. As pointed out by Judge Breitel, every injury has ramifying consequences and losses, like the rippling of the waters, without end. ¹ Ideally, each loss should be paid in full in undepreciated currency. Practically, not every loss can be made compensable in money damages, and legal causation must terminate somewhere. In delineating the extent of a tortfeasor's responsibility for damages under the general rule of tort liability (Civ.Code, § 1714), the courts must locate the line between liability and nonliability at some point, a decision which is essentially political. (See Rowland v. Christian, 69 Cal.2d 108, 112--113, 70 Cal.Rptr. 97, 443 P.2d 561.) In dealing with the type of loss at bench, courts in other jurisdiction have uniformly placed the loss on the non-actionable side of the line. As Prosser states, 'The interest of the child in proper parental care . . . has run into a stone wall where there is merely negligent injury to the parent.' (Law of Torts, 4th ed., p. 896.) The decisions all reject liability (Early v. United States (1973, 9th Cir.) 474 F.2d 756, 758--759, applying Alaskan law; Pleasant v. Washington Sand & Gravel Co. (1958) 104 App.D.C. 374, 262 F.2d 471; Jeune v. Del E. Webb Constr. Co. (1954) 77 Ariz. 226, 269 P.2d 723; Halberg v. Young (1957) 41 Hawaii 634, 59 A.L.R.2d 445; Hankins v. Derby (1973) Iowa, 211 N.W.2d 581; Hoffman v. Dautel (1962) 189 Kan. 165, 368 P.2d 57; Hayrynen v. White Pine Copper Co. (1968) 9 Mich.App. 452, 157 N.W.2d 502; General Electric Co. v. Bush (1972) 88 Nev. 360, 498 P.2d 366; Russell v. Salem Transportation Co. (1972) 61 N.J. 502, 295 A.2d 862; Duhan v. Milanowski (1973) 75 Misc.2d 1078, 348 N.Y.S.2d 696; Turner v. Atlantic Coast Line R. Co. (1958 N.D.Ga.) 159 F.Supp. 590). In denying a child's cause of action for negligent injury to the parent, the cases cite a variety of concerns: absence of an enforceable claim by the child to the parent's services; indirectness and derivative nature of the injury; uncertainty and remoteness of damages; possibility of overlap with the parent's recovery; multiplication of tort claimants; multiplication of tort litigation; abrogation of the period of limitation; splitting of the basic cause of action; and potential increase in insurance costs. The Supreme Court gave...