U.S. v. Dempsey

• Decision Date: 21 April 1994
• Docket Number: No. 81705,81705
• Citation: 635 So.2d 961
• Parties: 19 Fla. L. Weekly S198 UNITED STATES of America, Appellant/Cross-Appellee, v. Loren DEMPSEY, et al., Appellee/Cross-Appellant.
• Court: Florida Supreme Court

Page 961

635 So.2d 961

19 Fla. L. Weekly S198

UNITED STATES of America, Appellant/Cross-Appellee, v. Loren DEMPSEY, et al., Appellee/Cross-Appellant.

No. 81705.

Supreme Court of Florida.

April 21, 1994.

Frank W. Hunger, Atty. Gen., Gregory R. Miller, U.S. Atty., and Robert S. Greenspan and William G. Cole, Civ. Div., Dept. of Justice, Washington, DC, for appellant/cross-appellee.

James F. McKenzie of McKenzie & Soloway, P.A., Pensacola, for appellee/cross-appellant.

KOGAN, Justice.

The United States Court of Appeals for the Eleventh Circuit certifies the following questions to this Court for resolution, pursuant to article V, section 3(b)(6) of the Florida Constitution:

1. DOES FLORIDA LAW PERMIT PARENTS TO RECOVER FOR THE LOSS OF A CHILD'S COMPANIONSHIP AND SOCIETY WHEN THE CHILD IS SEVERELY INJURED?

2. DOES FLORIDA LAW PERMIT PARENTS TO RECOVER FOR THE LOSS OF THE SERVICES OF A SEVERELY INJURED CHILD ABSENT EVIDENCE OF EXTRAORDINARY INCOME PRODUCING ABILITIES?

Dempsey v. United States, 989 F.2d 1134, 1135 (11th Cir.1993). The Eleventh Circuit provides the following statement of the facts and case in its certification:

On February 27, 1988, Pansey Dempsey, wife of Lonney Dempsey, Sr., an enlistee in the United States Air Force, gave birth to a baby girl at Eglin Air Force Base Hospital. The child, Loren, was born with severe breathing difficulties. An attempt to resuscitate her was unsuccessful because the tube meant to bring oxygen to the child's lungs was put down her esophagus instead. About fifty minutes later, the mistake was discovered and Loren was revived. Nevertheless, as the result of oxygen deprivation, she is now severely retarded. It appears that she will never walk or talk and will require care for the remainder of her life. Loren's parents have suffered the loss of a normal relationship with their child.

The magistrate judge to whom this case was assigned held the Government liable for Loren's injuries and awarded approximately $2.8 million to Loren for medical expenses, loss of earnings, and pain and suffering. The magistrate judge awarded the parents $1.3 million for the "loss of society and affection of their child." The Government appealed the award made to the parents. The parents appealed the magistrate judge's denial of damages for the loss of Loren's services.

On appeal, the dispute centers on the recovery available to the parents. The parties disagree about whether Florida law permits parents to recover for the loss of a child's society and affection when the child is severely injured, but does not die. They also disagree about whether parents may recover for the loss of an injured child's services.

989 F.2d at 1134-35. After reviewing Florida law, the circuit court concluded that the questions were unanswered by controlling precedent from this Court and certification therefore was necessary.

In connection with the first question, the Dempseys take the position that this Court previously has recognized a parent's right to recover for the loss of an injured child's companionship and society. The Government maintains that the Court has not recognized this right. We agree with the Dempseys that they are entitled to recover for the loss of Loren's companionship and society under this Court's decisions in Wilkie v. Roberts, 91 Fla. 1064, 109 So. 225 (1926), and Yordon v. Savage, 279 So.2d 844 (Fla.1973).

It is generally accepted that at common law a father was entitled to compensation for the lost services and earnings of his negligently injured child as well as medical expenses incurred as a result of the injury; however, the father's right to compensation did not extend to damages for loss of the child's companionship. See McGarr v. National & Providence Worsted Mills, 24 R.I. 447, 53 A. 320, 325-26 (1902) (measure of damages in case brought for loss suffered as result of injury to a child is same as that in case brought by a master for the loss of services of his servant or apprentice; the elements of affection and sentiment are not to be considered); see also Sizemore v. Smock, 430 Mich. 283, 422 N.W.2d 666, 668 (1988); Restatement (Second) of Torts Sec. 703, comment h (1977); W. Page Keeton et al., Prosser and Keeton on the Law of Torts Sec. 125, at 934 (5th ed. 1984); John F. Wagner Jr., Annotation, Recovery of Damages for Loss of Consortium Resulting from Death of Child, 77 A.L.R. 4th 411, 416 (1990); Todd R. Smyth, Annotation, Parent's Right to Recover for Loss of Consortium in Connection with Injury to Child, 54 A.L.R. 4th 112 (1987 & Supp.1993). The rule that loss of an injured child's companionship is not recoverable has its roots in the common law analogy that was drawn between the parent-child relationship and the master-servant relationship. A child, like a servant, was considered nothing more than an economic asset of the father. See Ripley v. Ewell, 61 So.2d 420, 421-22 (Fla.1952); McGarr, 53 A. at 325-26; Michael B. Victorson, Note, Parent's Recovery for Loss of Society and Companionship of Child, 80 W.Va.L.Rev. 340 (1978); Jean C. Love, Tortious Interference with the Parent-Child Relationship: Loss of an Injured Person's Society and Companionship, 51 Ind.L.J. 590, 599 (1975-76); W. Page Keeton et al., Prosser and Keeton on the Law of Torts Sec. 125, at 934 (5th ed. 1984). This antiquated perception has met with much criticism. See e.g. Gallimore v. Children's Hospital Medical Center, 67 Ohio St.3d 244, 617 N.E.2d 1052, 1056 (1993); Frank v. Superior Court, 150 Ariz. 228, 722 P.2d 955, 959 (1986); Shockley v. Prier, 66 Wis.2d 394, 225 N.W.2d 495, 500 (1975); Victorson, supra; Love, supra at 599-601. Several of the courts that have broken free of the master-servant analogy have looked to this Court for guidance. See e.g. Gallimore, 617 N.E.2d at 1059 n. 9; Frank, 722 P.2d at 956 n. 2.

Beginning with its 1926 decision in Wilkie, this Court has recognized a parent's right to a child's companionship as a parental right a wrongful injury to which will support an action for damages:

The father's right to the custody, companionship, services, and earnings of his minor child are valuable rights, constituting a species of property in the father, a wrongful injury to which by a third person will support an action in favor of the father.

91 Fla. at 1068, 109 So. at 227. Then in 1973, the Yordon Court expressly stated that recovery for the loss of a child's companionship and society was available to the parent of a negligently injured child. 279 So.2d at 846. Yordon dealt with the issue of whether a mother has a right to recover for losses sustained as a result of a negligent injury to her child. In ruling that a mother has the same right of action as the father, the Court clearly defined that right of action as including recovery for loss of the child's companionship, society and services:

In Wilkie v. Roberts, this Court held that the parent, ... of an unemancipated minor child, injured by the tortious act of another, has a cause of action in his own name for medical, hospital, and related expenditures, indirect economic losses such as income lost by the parent in caring for the child, and for the loss of the child's companionship, society, and services, including personal services to the parent and income which the child might earn for the direct and indirect benefit of the parent.

279 So.2d at 846 (emphasis added). Relying on these prior decisions, numerous commentators ¹ and courts ² have concluded that recovery for the loss of filial consortium is available within this state.

The Government maintains that the decisions in Wilkie and Yordon have been misconstrued and that neither decision authorizes recovery for the loss of a child's companionship and society. We agree that Wilkie can be read as limiting a parent's recovery to the pecuniary losses suffered as a result of a negligent injury to a child. ³ However, even if the law within this state was not clear at the time of the Yordon decision, we read that decision as expanding the common law in this area.

This is a logical conclusion in light of the fact that when our common law rules are in doubt, this Court considers the " 'changes in our social and economic customs and present day conceptions of right and justice.' " Hoffman v. Jones, 280 So.2d 431, 435 (Fla.1973) (quoting Ripley, 61 So.2d at 423). Certainly, in 1973, when this Court set forth the elements of damages that a parent of an injured child is entitled to recover, it was apparent that a child's companionship and society were of far more value to the parent than were the services rendered by the child. Thus, there was an obvious need to recognize this element of damages to fully compensate the parent for the loss suffered because of a negligent injury to the child. The recognition of the loss of companionship element of damages clearly reflects our modern concept of family relationships.

Moreover, even if this Court previously had not expanded the common law to allow recovery for the loss of a negligently injured child's companionship, we would do so now. As was explained in Zorzos v. Rosen, 467 So.2d 305 (Fla.1985), wherein we declined to recognize a cause of action for loss of parental consortium, we are "not precluded from recognizing [such a right of action] simply because the legislature has not acted to create such a right." 467 So.2d at 307. This Court has repeatedly recognized that our common law "must keep pace with changes in our society." Gates v. Foley, 247 So.2d 40, 43 (Fla.1971) (granting wife right of action for loss of husband's consortium); See also Hoffman v. Jones, 280 So.2d 431 (Fla.1973) (replacing rule of contributory negligence with comparative negligence rule); In re T.A.C.P., 609 So.2d 588, 594 (Fla.1992) (adopting the modern definition of death). The common law may be altered when the reason for the rule of law ceases to exist, ⁴ or when change is demanded by public necessity or required to vindicate fundamental...