Theama by Bichler v. City of Kenosha, No. 81-2451

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtCECI
Citation117 Wis.2d 508,344 N.W.2d 513
PartiesRobert C. THEAMA, Patricia L. Theama, Tracy Theama by her Guardian ad Litem, Robert H. BICHLER, and Terry Theama by his Guardian ad Litem, Robert H. Bichler, Plaintiffs- Appellants- Petitioners, v. CITY OF KENOSHA, a municipal corporation, and Employers Mutual Liability Insurance Company of Wisconsin, a domestic insurance corporation, Defendants- Respondents.
Decision Date08 March 1984
Docket NumberNo. 81-2451

Page 513

344 N.W.2d 513
117 Wis.2d 508
Robert C. THEAMA, Patricia L. Theama, Tracy Theama by her
Guardian ad Litem, Robert H. BICHLER, and Terry
Theama by his Guardian ad Litem, Robert
H. Bichler,
Plaintiffs-
Appellants-
Petitioners,
v.
CITY OF KENOSHA, a municipal corporation, and Employers
Mutual Liability Insurance Company of Wisconsin, a
domestic insurance corporation,
Defendants- Respondents.
No. 81-2451.
Supreme Court of Wisconsin.
Argued Nov. 1, 1983.
Decided March 8, 1984.

[117 Wis.2d 509] Robert H. Bichler, Racine (argued), for plaintiffs-appellants-petitioners; Emily S. Mueller and Thompson & Coates, Ltd., Racine, on brief.

C. James Heft, Racine (argued), for defendants-respondents; David W. Paulson and Heft, Dye, Heft & Paulson, Racine, on brief.

CECI, Justice.

This is a review of an order of the court of appeals, dated December 7, 1982, summarily affirming a summary judgment of the Kenosha county circuit court, Michael S. Fisher, circuit judge, that dismissed the minor children's claims for the loss of society and companionship arising from injuries sustained by their father. We hold that a minor child may recover for the loss of a parent's society and companionship caused by negligent injury to the parent. Accordingly, we reverse the order of the court of appeals and remand the cause to the circuit court.

The complaint alleges that on June 27, 1978, at approximately 2:30 a.m., Robert C. Theama was driving his motorcycle on Kennedy Drive in the city of Kenosha. The complaint also states that as a result of insufficient lighting, Theama was unable to see a deep hole in the roadway's surface. His motorcycle struck the hole, causing Theama to lose control of the cycle and to be thrown from it. As a result of this accident, Theama suffered severe injuries to the head and internal organs, which resulted in permanent damage to the brain and impairment of visual, perceptual, motor and speech functions, as well as other physical and emotional effects.

In the first claim of plaintiffs' complaint, Robert Theama seeks damages for his own injuries, as well as [117 Wis.2d 510] for past and future pain and suffering, loss of earnings, impairment of earning capacity, expenses for past and future care and for past and future medical expenses. His wife, Patricia L. Theama, asks for damages for the loss of the support, society, companionship, and consortium of her husband due to his injuries, in the second claim. The third and fourth claims concern those of the minor children, Tracy and Terry Theama, for the loss of the care, society, companionship, protection, training, and guidance of their father because of his extensive injuries.

The defendants, the city of Kenosha and Employers Mutual Liability Insurance Company of Wisconsin, moved the trial

Page 514

court for summary judgment of the third and fourth claims of the minor children, stating the plaintiffs' complaint failed to set forth a cause of action for which relief may be granted. The trial judge granted the defendants' motion to dismiss the claims, relying on Cogger v. Trudell, 35 Wis.2d 350, 151 N.W.2d 146 (1967). The trial court reasoned that because a minor child has no independent cause of action under the wrongful death statute for the death of a parent when the other parent survives, the court could not justify an independent common law action for loss of society and companionship when both the children's father and mother were still living, in spite of the permanency of the father's injuries. 1

The plaintiffs petitioned for bypass of the court of appeals, and this court denied the petition for bypass. The court of appeals then certified the appeal to this court, which was also denied. On remand following the refusal of certification, the court of appeals summarily affirmed the order of the trial court.

[117 Wis.2d 511] The issue we must decide is whether or not a minor child may maintain a cause of action against a tortfeasor for loss of society and companionship of the parent.

The plaintiffs argue that even though the courts of this state have not explicitly recognized the child's right to recover for the loss of society and companionship of the injured parent, such a cause of action is implied by the logic found in Shockley v. Prier, 66 Wis.2d 394, 225 N.W.2d 495 (1975). The Shockley decision recognized the parents' right to recover for loss of aid, comfort, society, and companionship of a child during minority when the loss is occasioned by another's negligence.

We note that no such cause of action existed at common law. Therefore, this is a question of first impression for this court. However, we address this issue with determination and commitment, for, as we noted in Moran v. Quality Aluminum Casting Co., 34 Wis.2d 542, 551, 150 N.W.2d 137 (1967), "The genius of the common law is its ability to adapt itself to the changing needs of society." We believe that the resolution of this issue is yet another step along the evolution of how the courts of this state view the changing nature of the family unit. A brief review of the development of actions within the family is relevant to our discussion.

Historically, under the doctrine of paterfamilias, all rights concerning the recovery for injuries to family members were vested in the father. Similar to the master-servant relationship, the father possessed an ownership interest in the services of the other family members, namely, the wife and children. Thus, he could recover the pecuniary value of these services, in addition to incidental expenses, such as medical costs, when deprived of them through a defendant's intentional or negligent conduct. Note, The Child's Right to Sue for Loss of a Parent's Love, Care and Companionship Caused by Tortious[117 Wis.2d 512] Injury to the Parent, 56 B.U.L.Rev. 722, 726 (1976).

Gradually, the father's loss of his wife's or child's love, care, and companionship was recognized as being recoverable. Selleck v. The City of Janesville, 104 Wis. 570, 80 N.W. 944 (1899). Although the father's possessory interest in his wife's and children's services had originally served as the groundwork for these claims, the sentimental aspects of the losses became the focus of these actions. As the writer of one law review note points out,

"The action became one for loss of 'consortium,' of which services constituted merely one element. Under modern practice, husbands and fathers have obtained substantial recovery for loss of consortium even when the wife or child had been rendering no services." 56 B.U.L.Rev. at 724 (footnotes omitted).

Prior to 1950, the wife did not have an action at common law for loss of her husband's

Page 515

consortium resulting from the negligent acts of another. This was based upon the archaic common law doctrine that upon marriage, the woman assumed the status of a chattel and was legally nonexistent. See, Moran v. Quality Aluminum Casting Co., 34 Wis.2d at 546, 150 N.W.2d 137. However, in 1950, the court of appeals for the District of Columbia held that a wife could in fact recover for loss of consortium resulting from a negligent injury to her husband, in the decision of Hitaffer v. Argonne Co., 183 F.2d 811 (D.C.Cir.1950).

This court refused to follow the Hitaffer court's lead in Nickel v. Hardware Mut. Casualty Co., 269 Wis. 647, 70 N.W.2d 205 (1955), holding that a married woman did not possess such a right of action at common law and that such a right had not been conferred by statute. However, in the Moran decision, this court acknowledged that changing social conditions mandated the recognition of such a claim.

[117 Wis.2d 513] "Both logic and the interest of justice require that, if a husband is to be accorded the right to recover for loss of consortium of the wife injured through the negligent act of another, a wife also should be accorded the same right where she sustains a loss of consortium of the husband. The genius of the common law is its ability to adapt itself to the changing needs of society. Because the bases on which the old common-law rule which denied to the wife the right of recovery for loss of her husband's consortium rest on historical concepts which long ago disappeared, we deem the rule of Nickel v. Hardware Mut. Casualty Co. [which denied such recovery] should be overruled...." Moran v. Quality Aluminum Casting Co., 34 Wis.2d at 551-52, 150 N.W.2d 137.

Most recently, in Shockley v. Prier, this court concluded that parents should be allowed to recover for the loss of aid, comfort, society, and companionship of a child during minority when such loss is occasioned by the negligence of a third party. Shockley v. Prier, 66 Wis.2d at 401, 225 N.W.2d 495. The Shockley decision focused upon the changes in the family relationship which had occurred since 1925, when this court had found that parents could recover the following damages for injuries to a child:

" 'But when a minor child is injured by the negligence of another ... the parent can recover (1) for loss of the minor's earning capacity during minority and (2) for reasonable medical and nursing expenses during minority.' " Id. at 397, 225 N.W.2d 495, citing Callies v. Reliance Laundry Co., 188 Wis. 376, 380, 206 N.W. 198 (1925).

This court determined that the parent-child relationship should no longer be viewed as analogous to that between a master and servant and stated the following:

"Society and companionship between parents and their children are closer to our present-day family ideal than the right of the parents to the 'earning capacity during minority,' which once seemed so important when the common law was originally established." Id. 66 Wis.2d at 401, 225 N.W.2d 495.

[117 Wis.2d 514] In the instant case, we are faced with the reverse situation of that found in Shockley --that of the minor child's loss of the experiences normally shared with his or her father throughout childhood. In focusing upon the importance of the parent-child...

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76 practice notes
  • Sorensen by Kerscher v. Jarvis, Nos. 83-1821
    • United States
    • United States State Supreme Court of Wisconsin
    • June 28, 1984
    ...shall be and continue part of the law of this state until altered or suspended by the legislature." 5 Theama v. City of Kenosha, 117 Wis.2d 508, 344 N.W.2d 513 (1984); State v. Deetz, 66 Wis.2d 1, 224 N.W.2d 407 (1974); Moran v. Quality Aluminum Casting Co., 34 Wis.2d 542, 150 N.W.2d 137 (1......
  • Bowen v. Kil-Kare, Inc., KIL-KAR
    • United States
    • United States State Supreme Court of Ohio
    • February 26, 1992
    ...v. Reynolds Metals Co. (1984), 103 Wash.2d 131, 691 P.2d 190; Belcher v. Goins (W.Va.1990), 400 S.E.2d 830; Theama v. Kenosha (1984), 117 Wis.2d 508, 344 N.W.2d 513; Nulle v. Gillette-Campbell Cty. Jt. Powers Fire Bd. (Wyo.1990), 797 P.2d 10 See, e.g., Gray v. Suggs (1987), 292 Ark. 19, 728......
  • Campos v. Coleman, No. 19195.
    • United States
    • Supreme Court of Connecticut
    • October 6, 2015
    ...Inc., 734 P.2d 991, 997 (Alaska 1987) (loss of parental consortium 123 A.3d 861claims are limited to minor children); Theama v. Kenosha, 117 Wis.2d 508, 527, 344 N.W.2d 513 (1984) ( “[w]e ... limit recovery under [a] cause of action [for loss of parental consortium] to [minor children] ... ......
  • Mendillo v. Board of Educ. of Town of East Haddam, No. 15757
    • United States
    • Supreme Court of Connecticut
    • August 25, 1998
    ...Pengo Hydra-Pull Corp., supra, 103 Wash.2d 131, 691 P.2d 190; Belcher v. Goins, 184 W.Va. 395, 400 S.E.2d 830 (1990); Theama v. Kenosha, 117 Wis.2d 508, 344 N.W.2d 513 (1984); Nulle v. Gillette-Campbell County Joint Powers Fire Board, 797 P.2d 1171 (Wyo.1990). In addition, § 707A of the Res......
  • Request a trial to view additional results
77 cases
  • Sorensen by Kerscher v. Jarvis, Nos. 83-1821
    • United States
    • United States State Supreme Court of Wisconsin
    • June 28, 1984
    ...shall be and continue part of the law of this state until altered or suspended by the legislature." 5 Theama v. City of Kenosha, 117 Wis.2d 508, 344 N.W.2d 513 (1984); State v. Deetz, 66 Wis.2d 1, 224 N.W.2d 407 (1974); Moran v. Quality Aluminum Casting Co., 34 Wis.2d 542, 150 N.W.2d 137 (1......
  • Bowen v. Kil-Kare, Inc., KIL-KAR
    • United States
    • United States State Supreme Court of Ohio
    • February 26, 1992
    ...v. Reynolds Metals Co. (1984), 103 Wash.2d 131, 691 P.2d 190; Belcher v. Goins (W.Va.1990), 400 S.E.2d 830; Theama v. Kenosha (1984), 117 Wis.2d 508, 344 N.W.2d 513; Nulle v. Gillette-Campbell Cty. Jt. Powers Fire Bd. (Wyo.1990), 797 P.2d 10 See, e.g., Gray v. Suggs (1987), 292 Ark. 19, 728......
  • Campos v. Coleman, No. 19195.
    • United States
    • Supreme Court of Connecticut
    • October 6, 2015
    ...Inc., 734 P.2d 991, 997 (Alaska 1987) (loss of parental consortium 123 A.3d 861claims are limited to minor children); Theama v. Kenosha, 117 Wis.2d 508, 527, 344 N.W.2d 513 (1984) ( “[w]e ... limit recovery under [a] cause of action [for loss of parental consortium] to [minor children] ... ......
  • Mendillo v. Board of Educ. of Town of East Haddam, No. 15757
    • United States
    • Supreme Court of Connecticut
    • August 25, 1998
    ...Pengo Hydra-Pull Corp., supra, 103 Wash.2d 131, 691 P.2d 190; Belcher v. Goins, 184 W.Va. 395, 400 S.E.2d 830 (1990); Theama v. Kenosha, 117 Wis.2d 508, 344 N.W.2d 513 (1984); Nulle v. Gillette-Campbell County Joint Powers Fire Board, 797 P.2d 1171 (Wyo.1990). In addition, § 707A of the Res......
  • Request a trial to view additional results

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