Ueland v. Reynolds Metals Co.

Decision Date08 November 1984
Docket NumberNo. 50287-1,50287-1
Citation103 Wn.2d 131,691 P.2d 190
PartiesShelley M. UELAND, as General Guardian for Eric W. Ueland and as Guardian Ad Litem for Kimberly L. Ueland and William Lloyd Ueland, Respondent, v. REYNOLDS METALS COMPANY, a foreign corporation, licensed to do business in the State of Washington, and North Coast Electric Company, a Washington corporation, Petitioners, Pengo Hydra-Pull Corporation, a Texas corporation, and Pengo Industries, a Texas corporation, and Gearhart-Owen Industries, Inc., a Texas corporation, and Gearhart Industries, Inc., a Texas corporation, Defendants.
CourtWashington Supreme Court

Ogden, Ogden & Murphy by Steven Reisler, Seattle, for petitioners.

Kleist, Davis & Arnold, Inc., P.S. by Philip G. Arnold, Seattle, for respondent.

Robert H. Whaley and Bryan P. Harnetiaux, Spokane, Washington Trial Lawyers Ass'n, amici curiae, for respondent.

PEARSON, Justice.

This case requires us to decide whether children have a separate cause of action for loss of parental consortium 1 when a parent is injured through the negligence of another. We hold that, subject to the limitations set forth in this opinion, such actions may be brought in this state.

Eric Ueland, husband of Shelley Ueland and father of the two minor children, Kimberly and William Ueland, suffered severe and permanent mental and physical disabilities when struck by a metal cable during the course of employment as a lineman for Seattle City Light. The Uelands were separated and seeking a divorce at the time of the accident. The minor children, through their mother as guardian, bring this action for loss of consortium with their father as a result of his injuries. Petitioners Reynolds Metals Company and North Coast Electric Company moved in Superior Court for dismissal of this claim. The motion was denied. A motion for discretionary review of this decision was granted by the Court of Appeals and the case was subsequently transferred to this court for disposition on the merits.

This court first addressed the issue of parental consortium in Erhardt v. Havens, Inc., 53 Wash.2d 103, 330 P.2d 1010 (1958). The court in Erhardt declined the appellant's invitation to extend the common law to allow such an action. In support of its decision, the court noted that no jurisdiction had adopted such a cause of action and, indeed, even a wife had no right of action for the loss of consortium as a result of the negligent injury of her husband. See Ash v. S.S. Mullen, Inc., 43 Wash.2d 345, 261 P.2d 118 (1953), overruled in Lundgren v. Whitney's, Inc., 94 Wash.2d 91, 614 P.2d 1272 (1980). The court also stated that it was unnecessary to extend the common law since the defendant in this case conceded the children's loss was a proper item of damage in the father's potential recovery. This concession by the defendant was not necessarily based on a sound reading of the law; however, the court did not further explore the issue. Although the court did not adopt the cause of action sought by the appellants, it indicated a willingness to do so when faced with the proper case. Erhardt, 53 Wash.2d at 106, 330 P.2d 1010.

Twenty-one years later, the Court of Appeals addressed the same issue and it too declined to adopt the cause of action. Roth v. Bell, 24 Wash.App. 92, 600 P.2d 602 (1979). In Roth, three minor children sought damages "for loss of companionship, advice, destruction of the parent-child relationship, and future support, and emotional injury" after their mother suffered a severe stroke allegedly caused by her ingestion of birth control pills manufactured by one of the defendants. Roth, 24 Wash. App. at 93, 600 P.2d 602. After providing a good discussion of the development of consortium actions in this state, the court in Roth held that adoption of such a cause of action is an issue of public policy and should be left to the Legislature. Roth, 24 Wash.App. at 101, 600 P.2d 602.

In the present case the trial judge apparently thought the viability of the Roth decision was in question after this court's decisions in Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483 (1983), and Lundgren v. Whitney's, Inc., supra. In part, Harbeson can be interpreted as allowing parents to recover for loss of consortium with their child as a part of their wrongful birth action. Harbeson, 98 Wash.2d at 475, 656 P.2d 483. Lundgren created a cause of action for loss of consortium for wives whose husbands are injured by the negligent acts of another. Although neither Harbeson nor Lundgren directly affects the Court of Appeals decision in Roth, the trial judge interpreted those decisions as showing this court's willingness to adopt new rights of action for loss of consortium.

Through legislative act and court decision this state recognizes a wide range of consortium recovery rights. Parents may recover for loss of consortium for injury to a child. RCW 4.24.010. 2 A spouse may bring an action for loss of consortium when the other spouse is injured. Hawkins v. Front St. Cable Ry. Co., 3 Wash. 592, 28 P. 1021 (1892) (allowing a husband to recover for loss of an injured wife's "services" in the household); Lundgren v. Whitney's, Inc., supra (allowing a wife to recover for loss of consortium when her husband is injured). A child, parent or spouse can bring an action for wrongful death of the other where loss of consortium is an element of the recovery. RCW 4.20.020. 3

The state of the law in this area is anomalous in that a child may recover for loss of consortium if the parent dies as a result of another's negligence, but not if the severely injured parent remains alive but in a vegetative state. Surely the child's loss of the parent's love, care, companionship and guidance is nearly the same in both situations. Also, permitting a husband or wife but not children to recover for loss of consortium erroneously suggests that an adult is more likely to suffer emotional injury than a child. See 56 B.U.L.Rev., at 742.

The stage was set for the adoption of the child's cause of action in 1916, when Dean Pound of Harvard Law School wrote:

As against the world at large a child has an interest ... in the society and affection of the parent, at least while he remains in the household. But the law has done little to secure these interests. At common law there are no legal rights which protect them ....

...

It will have been observed that legal securing of the interests of children falls far short of what general considerations would appear to demand.

(Footnote omitted.) Pound, Individual Interests in the Domestic Relations, 14 Mich.L.Rev. 177, 185-86 (1916).

Prosser also criticized this void in the law which has left the child uncompensated for the loss of a parent's love and guidance due to the negligent injury to the parent.

The interest of the child in proper parental care ... has run into a stone wall where there is merely negligent injury to the parent ....

It is not easy to understand and appreciate this reluctance to compensate the child who has been deprived of the care, companionship and education of his mother, or for that matter his father, through the defendant's negligence. This is surely a genuine injury, and a serious one, which has received a great deal more sympathy from the legal writers than from the judges.

(Footnotes omitted.) W. Prosser, Torts § 125, p. 896 (4th ed. 1971).

Petitioners point out that numerous jurisdictions have denied this cause of action. See Annot., Child's Right of Action for Loss of Support, Training, Parental Attention, or the Like, Against a Third Person Negligently Injuring Parent, 11 A.L.R. 4th 549 (1982). However, the emerging trend is to recognize the child's cause of action. See Rosen v. Zorzos, 449 So.2d 359 (Fla.Dist.Ct.App.1984) (currently on appeal to the Florida Supreme Court); Theama v. Kenosha, 117 Wis.2d 508, 344 N.W.2d 513 (1984); Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981); Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (1981); Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980). We find more persuasive the reasoning found in these decisions recognizing the cause of action.

Petitioners draw our attention to numerous arguments against recognizing the cause of action which we now address. First is that creation of such a cause of action lies within the Legislature's, not the court's, domain. In support of this argument petitioners cite the Court of Appeals decision in Roth v. Bell, 24 Wash.App. 92, 600 P.2d 602 (1979), where the court held adoption of such a cause of action is a legislative, not a judicial, function. Roth, 24 Wash.App. at 101, 600 P.2d 602.

In Lundgren v. Whitney's, Inc., 94 Wash.2d 91, 614 P.2d 1272 (1980), where we held a woman has a right of action for loss of consortium when her husband is negligently injured, a similar argument was made. In answer to the argument that changes in the common law rule on loss of consortium should be left to the Legislature, we stated in Lundgren:

[T]his contention is in effect

a request that courts abdicate their responsibility for the upkeep of the common law ....

* * *

... Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382, 393-94, 525 P.2d 669, 115 Cal.Rptr. 765 (1974).

Indeed, we have often discharged our duty to reassess the common law and alter it where justice requires. Grimsby v. Samson, 85 Wash.2d 52, 59-60, 530 P.2d 291, 77 A.L.R.3d 436 (1975) ...

Lundgren, 94 Wash.2d at 95, 614 P.2d 1272.

When justice requires, this court does not hesitate to expand the common law and recognize a cause of action. In the present case, just as in Lundgren, to defer to the Legislature in this instance would be to abdicate our responsibility to reform the common law to meet the evolving standards of justice.

We next address petitioners' second argument, that allowing the action would result in multiple lawsuits. Petitioners are correct to point out that if this cause of action is adopted there could be...

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