Villareal v. State, Dept. of Transp.

• Decision Date: 20 April 1989
• Docket Number: Nos. CV-87-0361-,CV-88-0278-SA and CV-88-0419-SA,s. CV-87-0361-
• Citation: 160 Ariz. 474,774 P.2d 213
• Parties: , 57 USLW 2639 Vivian VILLAREAL, mother and guardian of Rachel Leah Garcia, Gregory Jesse Garcia, Pamela Jeanette Garcia, Anthony Conrad Garcia, minor children of Gregory J. Garcia; and Mellissa Ann Garcia, adult child of Gregory J. Garcia, an incapacitated person, Plaintiffs-Appellants, v. STATE of Arizona, DEPARTMENT OF TRANSPORTATION, Defendants-Appellees. Raul NEWMAN and Donna Newman, his wife, and Ronald Newman by and through his parents, Raul and Donna Newman, Petitioners/Plaintiffs, v. SUPERIOR COURT OF the State of Arizona, in and For the COUNTY OF MARICOPA, the Honorable Stephen A. Gerst, a Judge thereof, Respondent Judge, SUN VALLEY CRUSHING COMPANY, an Arizona corporation; William A. Walker and Doris C. Walker, husband and wife; John Weik, Jr. and Glendine Weik, his wife, Real Parties in Interest/Defendants. Juan Antonio M. FUENTES, Carmen Dalhia M. Fuentes, and Guadalupe Angelica M. Fuentes, minors, by and through their Natural Parent, Carmen M. Fuentes, Petitioners, v. SUPERIOR COURT OF the State of Arizona, In and For the COUNTY OF MARICOPA; the Honorable E.G. Noyes, Jr., a judge thereof; and William Edward Odle and Jane Doe Odle, husband and wife; Odle & Son's Dairy, Real Parties in Interest; and Fairmont Railway Motors, a Division of Harsco Corporation, a Delaware corporation, Real Party in Interest, Respondents.
• Court: Arizona Supreme Court

Page 213

774 P.2d 213

160 Ariz. 474, 57 USLW 2639

Vivian VILLAREAL, mother and guardian of Rachel Leah Garcia, Gregory Jesse Garcia, Pamela Jeanette Garcia, Anthony Conrad Garcia, minor children of Gregory J. Garcia; and Mellissa Ann Garcia, adult child of Gregory J. Garcia, an incapacitated person, Plaintiffs-Appellants, v. STATE of Arizona, DEPARTMENT OF TRANSPORTATION, Defendants-Appellees.

Raul NEWMAN and Donna Newman, his wife, and Ronald Newman by and through his parents, Raul and Donna Newman, Petitioners/Plaintiffs, v. SUPERIOR COURT OF the State of Arizona, in and For the COUNTY OF MARICOPA, the Honorable Stephen A. Gerst, a Judge thereof, Respondent Judge, SUN VALLEY CRUSHING COMPANY, an Arizona corporation; William A. Walker and Doris C. Walker, husband and wife; John Weik, Jr. and Glendine Weik, his wife, Real Parties in Interest/Defendants.

Juan Antonio M. FUENTES, Carmen Dalhia M. Fuentes, and Guadalupe Angelica M. Fuentes, minors, by and through their Natural Parent, Carmen M. Fuentes, Petitioners, v. SUPERIOR COURT OF the State of Arizona, In and For the COUNTY OF MARICOPA; the Honorable E.G. Noyes, Jr., a judge thereof; and William Edward Odle and Jane Doe Odle, husband and wife; Odle & Son's Dairy, Real Parties in Interest; and Fairmont Railway Motors, a Division of Harsco Corporation, a Delaware corporation, Real Party in Interest, Respondents.

Nos. CV-87-0361-T, CV-88-0278-SA and CV-88-0419-SA.

Supreme Court of Arizona.

April 20, 1989.

[160 Ariz. 476] Thomas E. Johnson, Tucson and Richard T. Platt, Coolidge, for plaintiffs/appellants, Villareal and Garcia.

Gallagher & Kennedy by Timothy R. Smock and Thomas A. Maraz, Phoenix, for defendant/appellee, State of Ariz., Dept. of Transp.

Larry G. Haddy, Ltd. by Larry G. Haddy, Phoenix, for petitioners/plaintiffs, Newman.

Jennings, Kepner & Haug by John R. Cunningham and Randy L. Sassaman, Phoenix, for real parties in interest/defendants, Sun Valley Crushing Co., Walker and Weik.

Beus, Gilbert, Wake & Morrill by Arthur N. Gorman, Phoenix, for petitioners, Fuentes.

Holloway & Thomas, P.C. by Benjamin C. Thomas and Therese M. Hansen, Phoenix, for respondent/real party in interest, Fairmont Ry. Motors, Inc., Harsco Corp.

OPINION

GORDON, Chief Justice.

We have consolidated these three cases on the issue of whether minor children may maintain a cause of action for loss of consortium against a third party who injures one of their parents. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(1) and Ariz. R. Sp. Act. 4, 17B A.R.S.

I. BACKGROUND

The background of each case as stated in the pleadings is set forth separately below.

Villareal: On May 6, 1981, an Arizona Department of Transportation ("State") crew was repairing State Highway 77, north of Winkelman, when Gregory J. Garcia crashed his motorcycle into the construction site. Garcia suffered serious personal injuries as a result of the crash and filed a suit against the State alleging negligence for its failure to safely warn motorists of the maintenance activities. The parties reached a court-approved settlement. Minnie Garcia, as guardian and conservator for Mr. Garcia, signed a release discharging the State from "any and all rights, claims, demands and damages of any kind...." The settlement agreement bound "Minnie Garcia as guardian and conservator for Gregory Garcia, their heirs, next of kin, executors, personal representatives or assigns...."

On December 19, 1985, Vivian Villareal, mother and guardian of Garcia's children, appellants in this case, all of whom were under the age of 18 when the accident occurred, brought suit against the State for their loss of parental consortium. The State sought summary judgment against the children on three grounds: (1) a cause of action for loss of parental consortium does not exist in Arizona; (2) the claim, if recognized, was barred by the applicable statute of limitations; and (3) the claim, if recognized, was extinguished by Garcia's settlement of his personal injury claim with the State. The trial court granted the State's motion for summary judgment on the ground that a child does not have a cause of action for loss of parental consortium in Arizona.

Garcia's children filed an appeal with the Court of Appeals and requested that the matter be transferred to this Court. The State did not object and we granted the petition for transfer.

Newman: Defendant, Sun Valley Crushing Company ("Sun Valley") operates a sand and gravel business. Sun Valley allegedly created a sixty-foot cliff at the crest of a hill on a public trail. On October 19, 1985, Brent C. Vaughn, a minor, drove his bicycle off the cliff and died. On October 20, 1985, Raul Newman fell down the cliff while riding his ATC and suffered personal injuries. On July 16, 1987, Brent Vaughn's parents and Raul Newman sued Sun Valley. Seven months later, Newman moved to amend his complaint to add his daughter, Kimberly, as an additional plaintiff so that she could recover for her alleged emotional and psychological problems caused by her father's injuries. The trial court denied the motion to amend, reasoning that the proposed amendment failed to state a cause of action.

Fuentes: On December 14, 1985, John T. Fuentes suffered serious personal injuries at work when a railroad car built by Fairmont Railway Motors ("Fairmont") and owned and operated by his employer, Southern Pacific Transportation Company, collided with a Chevrolet Blazer owned and operated by Odle & Son's Dairy ("Odle"). Fuentes brought an action to recover for his personal injuries. On September 8, 1986, Fuentes, his wife, and his three minor children filed an amended complaint alleging that the injuries deprived the three children of "the love, society, care, companionship, guidance and support of their father," seeking to recover damages for loss of parental consortium. Fairmont moved for partial summary judgment and Odle moved for judgment on the pleadings. The trial court granted both motions and dismissed the children's claims.

II. DISCUSSION

Subject to the limitations set forth below, we hold that children may recover for loss of consortium when a third party causes serious, permanent, and disabling injury to their parent. Our holding is partially retroactive and applies to (1) the Newman and Fuentes children; (2) other children whose injured parents have a case presently pending or whose injured parents are presently eligible to bring their own claim; and (3) children whose parents are injured after the date of this decision. Additionally, a child's cause of action for loss of consortium is derivative and may be joined with the parent's suit against the third party.

A. Reasons for Our Decision

1. Consortium Law in Arizona and Other States

In 1954, this Court held that neither a wife nor a minor child had a separate cause of action for damages resulting from the negligent injury of the husband and father. Jeune v. Del E. Webb Constr. Co., 77 Ariz. 226, 269 P.2d 723 (1954). In 1972, this Court stated, "When we find that the common law or 'judge-made law' is unjust or out of step with the times, we have no reluctance to change it." City of Glendale v. Bradshaw, 108 Ariz. 582, 584, 503 P.2d 803, 805 (1972). Accordingly, this Court overruled the portion of Jeune that denied a wife's right to recover for loss of her husband's consortium.

Our court of appeals recognized a cause of action for parents' loss of an injured minor child's consortium. Reben v. Ely, 146 Ariz. 309, 705 P.2d 1360 (Ct.App.1985). In 1986, we extended Reben to allow parents to recover for loss of an adult child's consortium. Frank v. Superior Court, 150 Ariz. 228, 722 P.2d 955 (1986). Today, we take a final step in overruling Jeune and recognize a child's right to recover for loss of parental consortium. See Comment, Frank v. Superior Court: Purging the Law of Outdated Theories for Loss of Consortium Recovery, 29 Ariz. L. Rev. 541, 547-48 (1987) (discussing Frank and noting that "the next logical step in this progression is protecting the child's interest in the parent-child relationship"). A majority of the courts considering a child's claim for loss of parental consortium rejects such a cause of action. ¹ A substantial minority, however, recognizes the claim. ² We reviewed the arguments on both sides and find the arguments favoring the cause of action more persuasive.

2. Importance of Children's Rights and Inconsistency of Present State of the Law

One of our reasons ³ for recognizing this cause of action is society's increased recognition and awareness of children as persons with rights. ⁴ For example, the United States Supreme Court recognizes children's due process and equal protection rights under the United States Constitution. E.g., Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (recognizing due process right to notice and informal hearing in school disciplinary process); Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973) (recognizing equal protection right of illegitimate children to maintain civil action for non-support against parent). In Arizona, the legislature enacted a number of provisions designed to protect children's interests including foster care review boards (A.R.S. §§ 8-515.01 through -515.04), automatic wage assignments, (A.R.S. §§ 25-323 through -323.03 followed by child support guidelines (Supreme Court of Arizona Administrative Order No. 87-36)), registration requirements for child care personnel (A.R.S. § 41-1964), and special sentencing provisions for dangerous crimes against children (A.R.S. § 13-604.01).

We believe that children have a right to enjoy a mutually beneficial relationship with their parents. When discussing this relationship previously, we stated, "While all family members enjoy a mutual interest in consortium, the parent-child relationship is undeniably unique and the wellspring from which other family relationships derive. It is the parent-child...