The ESTATE OF Mary WELLS, by her personal representative/administratrix, Charlotte Jeske, Plaintiff, Charlotte JESKE, Plaintiff-Appellant-Petitioner, v. MOUNT SINAI MEDICAL CENTER, n/k/a Sinai Samaritan Medical Center and/or Aurora Health Care, Mount Sinai Campus, Daniel Wartinbee, M.D., Milwaukee Orthopaedic Group, Ltd., Wisconsin Health Care Liability Insurance Plan, The Professional Insurance Company of Ohio and Wisconsin Patients’ Compensation Fund, Defendants-Respondents, E.J. HUXLEY, M.D., Pulmonary Medicine Associates of Milwaukee, The Medical Protective Company and Milwaukee County Department of Health & Human Services, Defendants.
No. 92-0186
Supreme Court of Wisconsin
May 25, 1994
515 N.W.2d 705
For the defendants-respondents there were briefs by Mary Lee Ratzel, Jan M. Schroeder and Peterson, Johnson & Murray, S.C., James M. Fergal, Linda Vogt Meagher and Schellinger & Doyle, S.C., Wayne Van Ert, Peter D. Alberg and Otjen, Van Ert, Stangle, Lieb and Weir, S.C. Milwaukee and oral argument by Mary K. Wolverton, James M. Fergal and Peter D. Alberg.
These are the facts. Mary Wells (Wells) was diagnosed as having multiple sclerosis when she was 21 years old. By age 30, her disease steadily progressing, Wells was admitted to the Sage Nursing Home.
In December of 1986, when she was 34 years old, Wells underwent surgery to release hip contractures. During the course of a post-surgical treatment session at Mount Sinai Medical Center on January 4, 1987, she unexpectedly suffered respiratory arrest. The causes of this arrest, as well as the degree to which the arrest affected her condition, remain in dispute. Petitioner, however, alleges that the arrest resulted from the defendants’ negligent medical care, and that it left Wells in a “virtual vegetative” state.
Upon her release from Mount Sinai, Wells returned to the Sage Nursing Home where she continued to reside until her death from terminal multiple sclerosis at the age of 38. Although she had been married twice, Wells was single at the time of her death. She left no children, and her sole surviving lineal heir is her mother, the petitioner.
This appeal deals exclusively with petitioner‘s suit to recover for the loss of her daughter‘s society and companionship for the period running from the day Wells suffered her arrest through to the date of her death approximately three and one-half years later.2 Petitioner alleges that this loss was due to the injuries Wells allegedly suffered as the result of defendants’ negligence.
Our task in this case is to determine whether the trial court properly granted the defendants’ motion for summary judgment. In reviewing such matters, we follow the same methodology as the trial court. That methodology is articulated in
[Summary judgment] shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
This analysis requires us to make two determinations. First, we consider whether there is a dispute as to a material fact. If no material facts are in dispute, we then determine whether under the law, the movant is entitled to summary judgment. Delmore v. American Family Mutual Insurance Company, 118 Wis. 2d 510, 512-13, 348 N.W.2d 151 (1984). For purposes of this appeal, the material facts are undisputed: Wells was a single, childless adult at the time of her death, and the petitioner was her mother and sole surviving heir. As a result, we proceed to the question of law herein posed. That question is whether under these facts, the petitioner can recover for the loss of her daughter‘s society and companionship.
The common law traditionally did not recognize such a cause of action. Rather, as this court indicated nearly 70 years ago in Callies v. Reliance Laundry Co., 188 Wis. 376, 380, 206 N.W. 198 (1925), a parent‘s recovery in such cases was limited to compensation for 1) loss of the child‘s earning capacity during minority, and 2) the child‘s reasonable medical and nursing expenses during minority.
With this court‘s decision in Shockley, however, Wisconsin became one of the first states to allow parents to recover damages for the loss of their negligently-injured minor child‘s society and companionship. Id. at 401. Attributing the common law‘s “genius” to its ability to adapt to society‘s changing needs, we made the following observation:
Since our court last laid down the law in [Callies], the family relationship has changed. Society and companionship between parents and their children are closer to our present-day family ideal than the right of parents to the ‘earning capacity during minority’ which once seemed so important when the common law was originally established.
The significance of Shockley lies in its recognition of the emotional aspects of the parent/child relationship. The question before us today, however, is one Shockley left unanswered. That question is whether the cause of action created therein extends to the parents of negligently-injured adult children as well as minor children.4
Nor is Wisconsin‘s wrongful death statute applicable.6 As indicated, claims arising from medical malpractice are governed by Chapter 655, not the wrongful death statute. At an even more basic level, the wrongful death statute, as its name indicates, applies only when the alleged loss results from a wrongful death. Here, the lost society and companionship for which the petitioner seeks recovery allegedly stems from the injuries Wells suffered, not from her death.
This lack of statutory guidance does not, however, prevent this court from acting. As we explained in Shockley, the rules against recovery for loss of society and companionship were created by the courts, and it is our responsibility, as much as it is the legislature‘s, to continue to shape this area of the law. Id. at 397.
Moreover, determining whether or not to extend the scope of liability with respect to a particular field of negligence claims is not a new task for this court. In the past, we have articulated a number of public policy considerations which may serve to deny the imposition of liability, even where negligence otherwise exists. As we noted in Hass v. Chicago & North Western Railway Company, 48 Wis. 2d 321, 179 N.W.2d 885 (1970):
It is recognized by this and other courts that even where the chain of causation is complete and direct, recovery against the negligent tort-feasor may sometimes be denied on grounds of public policy because the injury is too remote from the negligence or too ‘wholly out of proportion to the culpability of the negligent tortfeasor,’ or in retrospect it appears too highly extraordinary that the negligence should have brought about the harm, or because allowance of recovery would place too unreasonable a burden [on negligent tortfeasors], or be too likely to open the way for fraudulent claims, or would ‘enter a field that has no sensible or just stopping point.’
Id. at 326, (quoting Colla v. Mandella, 1 Wis. 2d 594, 598-99, 85 N.W.2d 345 (1957).7
Of these public policy considerations, those concerned with the imposition of excessive liability are particularly germane to claims for lost society and companionship. That is because the plaintiff‘s recovery in such cases is predicated upon the emotional ties he or she shares with the injured party. Consequently, the possible universe of claimants is limited only by the number of persons with whom the injured person has established personal relationships. Moreover, the negligent tortfeasor in such cases faces the considerable burden of disproving the existence and/or significance of any such relationships. As a result, courts generally recognize that this particular cause of action necessitates some degree of judicial guidance.8
In Theama, however, we advanced beyond the particular facts of that case to announce a rule of general application. Specifically, we limited recovery for the loss of an injured parent‘s society and companionship to the period of a child‘s minority. Id. at 524. We did so in part to address concerns that allowing the child‘s cause of action in Theama would expose negligent tortfeasors to an ever-expanding degree of liability. While implicitly acknowledging the legitimacy of such concerns in general, we explained that limiting recovery to minor children effectively minimized such fears:
This court has absolutely no difficulty in limiting such a cause of action to the two relationships likely to be most severely affected by a negligent injury to a parent, namely, the husband-wife relationship, and that of the parent and minor child.
Thus, in Theama, this court refused to extend recovery for the lost society and companionship of an injured parent beyond the confines of the “nuclear family,” a term we defined in that context to encompass parents and their minor children. Id. at 524.
More recently, in Rineck, we allowed a minor child to recover for the loss of the society and companionship of a parent whose death resulted from medical malpractice. Rineck, 155 Wis. 2d at 671. Citing Theama, however, we again specifically limited the cause of action to minor children. Id. at 671-72.
While neither Shockley, Theama nor Rineck considered the precise issue before us today, those decisions all reveal this court‘s hesitancy when expanding the loss of society and companionship cause of action. Together, those three cases form a partial framework which limit the scope of recovery. Today, we complete that framework by declining to extend the parent‘s cause of action to their negligently-injured adult children.
We do so because sound public policy dictates that some limit be placed on the liability faced by negligent tortfeasors. As the law currently stands, a negligent tortfeasor may be liable not only to the victim herself for injuries sustained,9 but also to the victim‘s spouse10 and minor children11 for loss of society and companionship. The tortfeasor may in some instances also be liable to third parties for the negligent infliction of emotional distress.12 To hold that same tortfeasor potentially liable to the parents (both parents, when applicable, could presumably bring separate claims) for the loss of an adult victim‘s society and companionship, is, we believe, excessive and contrary to public policy.
In addition, the period of minority itself is limited, lasting just 18 years. Today, with increasing life expectancy, it is not uncommon that persons 60 or even 70 years of age may still have surviving parents. Extending the parents’ cause of action to their adult children, therefore, will in many cases extend the parents’ potential period of recovery by as much as 40 or 50 years.
Petitioner suggests that we draw upon the provisions of the Wisconsin wrongful death statute to support her claim. She argues that after Shockley, that statute was amended to allow parents to recover for the lost society and companionship of their adult children, thereby evincing a legislative intent to allow parents like herself to recover. Assuming, without holding, that the statute allows such recovery, petitioner‘s reliance is nonetheless misplaced. A careful reading of the wrongful death statute reveals the legislature‘s acute awareness of the problems inherent in claims for loss of society and companionship. For instance, unlike other causes of action, the statute explicitly limits recovery for lost society and companionship to the deceased‘s surviving spouse, children or parents.
Limiting recovery for reasons of public policy always runs the risk of working harsh results in individual cases.15 For instance, people may question the logic which denies recovery to the parent of an 18 year old, but allows recovery for the parent of a 17 year old. Similarly, under the wrongful death statute, a parent whose child was married cannot recover for lost society and companionship, while the parent of a divorced child possibly can. In such line-drawing an indication by the legislature or this court that the parental relationships in the first instances are less significant than in the second? Of course not. But given the compelling public policy concerns in this area, a line at which liability ends must be drawn. We believe that the age of majority represents a rational place to draw that line. It is consistent with the vast majority of the other states, it is consistent with Theama and Rineck, and it is consistent with the equitable goal of allowing recovery in the most compelling cases without subjecting either the tortfeasor, or society in general, to an expanding and perhaps intolerable degree of liability.
SHIRLEY S. ABRAHAMSON, J. (dissenting). I agree with the majority that we must examine public policy considerations to determine whether liability will be imposed, even where negligence otherwise might exist (Majority Opinion at 674). Fairness to the defendant requires that we avoid imposing unreasonable liability. However, unlike the majority, I believe that our allowance of recovery only for the negligent injury of a member of the nuclear family sufficiently limits liability for loss of society and companionship. I would not impose an inflexible age limitation. The extent of any claimed loss of society and companionship between a parent and an adult child is, I conclude, a matter of proof to be determined by the factfinder. For these reasons, I write separately.