Hay v. Medical Center Hosp. of Vermont

• Decision Date: 26 April 1985
• Docket Number: No. 83-225,83-225
• Citation: 496 A.2d 939,145 Vt. 533
• Court: Vermont Supreme Court
• Parties: Walter HAY, Regina Abruntilla as Guardian for Mary Hay and David Hay, b/n/f Walter Hay v. MEDICAL CENTER HOSPITAL OF VERMONT, Bonnie Fifield and Shelly Howard.

Page 939

496 A.2d 939

145 Vt. 533

Walter HAY, Regina Abruntilla as Guardian for Mary Hay and David Hay, b/n/f Walter Hay v. MEDICAL CENTER HOSPITAL OF VERMONT, Bonnie Fifield and Shelly Howard.

No. 83-225.

Supreme Court of Vermont.

April 26, 1985.

Putter & Unger Associates, Montpelier, for plaintiff-appellant.

Spencer R. Knapp of Dinse, Allen & Erdmann, Burlington, for defendant-appellee Medical Center Hosp.

R. Allan Paul and Robert S. DiPalma of Paul, Frank & Collins, Inc., Burlington, for defendants-appellees Howard and Fifield.

Before HILL, UNDERWOOD, PECK and GIBSON, JJ., and LARROW, J. (Ret.), Specially Assigned.

UNDERWOOD, Justice.

This case presents this Court with a question we have not heretofore had an opportunity to consider: does a minor child have a cause of action for the loss of consortium of a parent who is alive, but who is alleged to be permanently comatose? We hold that such a cause of action does exist and therefore reverse the decision of the trial court denying such a cause of action.

Plaintiffs allege that Mary Hay was injured on July 7, 1980, while at the Medical Center Hospital of Vermont, and that, as a result of those injuries, she became permanently comatose.

A complaint was filed by Regina Abruntilla, in her capacity as guardian for Mary Hay, alleging that Mary Hay's injuries were proximately caused by the negligence of the defendant hospital and nurses and requesting recovery of damages suffered as a result thereof.

Walter Hay, husband of Mary Hay, also filed a complaint, which complaint included a cause of action for loss of spousal consortium. He filed a motion for joinder of his suit with the cause of action commenced on behalf of Mary Hay; the court granted the motion.

Thereafter Walter Hay, as father and next friend of David Hay, minor son of Mary Hay, filed a complaint for his son's loss of parental consortium, seeking damages resulting from (1) deprivation of the physical, moral and intellectual training of David's mother, and (2) deprivation of the affection, society, love, protection and companionship of David's mother. Walter Hay also filed on that same day a motion, on behalf of his son David Hay, to be joined as a party plaintiff in the original suit by Regina Abruntilla, guardian for Mary Hay.

We note that the claims filed by Walter Hay, individually, and by Walter Hay, on behalf of his son, David, insofar as they relate to damages for loss of spousal and parental consortium, though independent causes of action, are each derivative of the underlying claim of Mary Hay, and therefore the viability of each of these damage claims is wholly dependent upon Mary Hay's cause of action against these same defendants.

The trial court denied David Hay's motion for joinder on the ground that "a minor has no recognizable cause of action for damages for loss of physical training, moral training, intellectual training, affection, society, love, protection, and companionship from a living parent who was allegedly rendered totally disabled through the negligence of the defendants." ¹ Later, the trial court converted its denial of David Hay's motion for joinder into a final order. V.R.C.P. 54(b). David Hay filed a timely appeal from that final order.

I

We must first decide whether we will judicially recognize a minor child's cause of action for a claimed loss of parental consortium when the parent has been tortiously injured but has not deceased. It is clear that recovery of a loss of consortium is an action recognized at common law. ² Whitney v. Fisher, 138 Vt. 468, 470, 417 A.2d 934, 935 (1980); Baldwin v. State, 125 Vt. 317, 320, 215 A.2d 492, 494 (1965) (overruled on other grounds, Whitney, supra, 138 Vt. at 472, 417 A.2d at 936).

As an element of common law, the doctrine permitting recovery for loss of spousal consortium was initially created and developed by courts of law. Berger v. Weber, 411 Mich. 1, 17, 303 N.W.2d 424, 427 (1981); Theama v. City of Kenosha, 117 Wis.2d 508, 521, 344 N.W.2d 513, 519 (1984). In the context of the present contested cause of action, we agree with the Wisconsin Supreme Court when it stated:

[T]he rule denying recovery for the loss of society and companionship was created by the courts and not the legislature, and it is, therefore, as much our duty as the legislature's to change that law if it no longer meets society's needs.

Theama, supra, 117 Wis.2d at 519, 344 N.W.2d at 518; accord Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 516, 413 N.E.2d 690, 695-96 (1980); Ueland v. Reynolds Metals Co., 103 Wash.2d 131, 135, 691 P.2d 190, 193 (1984). Thus, it is clear that this Court has the authority to make changes in the common law, should we deem it appropriate to do so.

II

In considering the merits of recognizing a child's claim for loss of parental consortium, we first look to analogous areas of existing Vermont law. Under the provisions of Vermont's wrongful death statutes, 14 V.S.A. §§ 1491-1492, a minor child may recover "such damages as are just, with reference to the pecuniary injuries resulting from [the death of a parent]...." 14 V.S.A. § 1492(b) (Supp.1984). In a case involving minor children whose father had been killed, this Court held that the loss of the children's mental, moral and physical training by their dead father was properly included in the term "pecuniary loss." Hoadley v. International Paper Co., 72 Vt. 79, 83-84, 47 A. 169, 171 (1899). Although such a definition of "pecuniary loss" may be more limited than the recovery of "parental consortium" sought by David Hay in the present case, it is inappropriate that a minor child may recover such a loss if a parent is killed, but not if the parent is rendered permanently comatose. Accord Berger, supra, 411 Mich. at 15, 303 N.W.2d at 426; Ueland, supra, 103 Wash.2d at 133, 691 P.2d at 192; see also Prosser and Keeton on the Law of Torts § 125, at 936 (5th ed. lawyer's ed. 1984).

David Hay also argues that because either spouse may recover for loss of consortium in the event of the death of the other spouse, a minor child should be able to recover for loss of parental consortium upon the death of either parent. We recognize that there is indeed a difference between spousal and parental consortium:

Sexual relations [, however,] are but one element of the spouse's consortium action. The other elements--love, companionship, affection, society, comfort, services and solace--are similar in both relationships and in each are deserving of protection.

Berger, supra, 411 Mich. at 14, 303 N.W.2d at 426. Not only are the losses suffered by a parent and a child similar in many respects, but the child is in a uniquely difficult position to make up for the loss of a parent.

[W]hile an adult is capable of seeking out new relationships in an attempt to fill in the void of his or her loss, a child may be virtually helpless in seeking out a new adult companion. Therefore, compensation through the courts may be the child's only method of reducing his or her deprivation of the parent's society and companionship.

Theama, supra, 117 Wis.2d at 516, 344 N.W.2d at 516.

Defendants point out that this Court appears to have rejected the concept of parental consortium. Whitney v. Fisher, supra, 138 Vt. at 470-71, 417 A.2d at 936; Baldwin v. State, supra, 125 Vt. at 320-21, 215 A.2d at 494. It must be pointed out that the asserted denial of parental consortium in Whitney was contained only in a quoted passage from a dissent by Chief Justice Schaefer in Dini v. Naiditch, 20 Ill.2d 406, 433, 170 N.E.2d 881, 894 (1960). Chief Justice Shaefer's dissent was cited in Whitney, supra, and Baldwin, supra, only insofar as it provided support (in the absence of a statute) for denying a wife recovery for loss of consortium upon the death of her husband. This Court has never denied a child recovery for loss of parental consortium, and to the extent that Whitney, supra, implies otherwise, it is in error. We find that prior Vermont law presents no obstacle to our recognition of a cause of action for loss of parental consortium on behalf of the instant minor child.

III

A.

The defendants have raised a series of objections to the recognition of the right of a minor child to recover for the loss of parental consortium. The first of these objections concerns whether there is a duty on the part of the defendants to the minor child of the plaintiff. The defendants contend that recovery for loss of parental consortium is precluded by the fact that the injury to the minor child is too remote, and therefore unforeseeable. In support of this contention, defendants cite Vaillancourt v. Medical Center Hospital of Vermont, Inc., 139 Vt. 138, 425 A.2d 92 (1980); Guilmette v. Alexander, 128 Vt. 116, 259 A.2d 12 (1969); and Savard v. Cody Chevrolet, Inc., 126 Vt. 405, 234 A.2d 656 (1967). These cases are distinguishable, however, in that the basis for recovery in each of those cases was the negligent infliction of mental or emotional distress. Such a cause of action involves a direct relation between the tortfeasor and the victim; there must be a duty on the part of the tortfeasor, running to the victim. As stated earlier, consortium claims may be initiated independently by either spouse but are derivative actions and are therefore distinguishable from the underlying negligence claims in the principal action. See Guilmette, supra, 128 Vt. at 117, 259 A.2d at 13 ("The right to recover for negligence is based upon a breach of duty owing to the plaintiff and does not accrue derivatively."); see also Love, Tortious Interference with the Parent-Child Relationship: Loss of an Injured Person's Society and Companionship, 51 Ind.L.J. 590, 628-33 (1976). To the extent that our characterization of this claim for loss of consortium as a derivative action is inconsistent with Baldwin, supra, 125 Vt. at 319, 215 A.2d at 493-94, that case is specifically overruled.

The instant case involving loss of consortium is...