JUDITH A. FERRITER & others vs. DANIEL O‘CONNELL‘S SONS, INC.
Supreme Judicial Court of Massachusetts
September 9, 1980
381 Mass. 507
Hampden. February 6, 1980. — September 9, 1980. Present: HENNESSEY, C.J., QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS & ABRAMS, JJ.
A child has a right to recover for loss of a parent‘s society and companionship through a defendant‘s negligence if the child is a minor who is dependent on the parent both economically and in filial needs for closeness, guidance, and nurture. [509-517]
Allegations in a complaint that the plaintiffs, the wife and children of an employee seriously injured through his employer‘s negligence, suffered mental anguish and physical impairment as a result of observing the employee in the hospital immediately after the accident were sufficient to state a claim upon which relief might be granted. [517-519]
HENNESSEY, C.J., and QUIRICO, J., dissenting.
Claims for loss of consortium and society by the wife and children of an employee who was injured in the course of his employment through the alleged negligence of the defendant employer were not barred by the Workmen‘s Compensation Act even though the employee accepted compensation payments under
CIVIL ACTION commenced in the Superior Court Department on June 7, 1979.
The case was heard by Cross, J., on a motion for summary judgment and was reported by him to the Appeals
Morton J. Sweeney for the plaintiffs.
Gerard L. Pellegrini for the defendant.
LIACOS, J. The plaintiffs, Judith A. Ferriter and her minor children, Jason R. and Leah N.,1 filed a complaint and demand for jury trial on June 7, 1979, in the Superior Court for Hampden County. The complaint alleged that the plaintiffs’ husband and father, Michael Ferriter, was seriously injured as a result of the negligent, wilful, wanton and reckless conduct of the defendant, Daniel O‘Connell‘s Sons, Inc. (O‘Connell). The complaint alleges that observing Michael‘s injuries has caused the plaintiffs to suffer mental anguish and that as a result of Michael‘s injuries their mental and physical health has been impaired. Furthermore, the plaintiffs allegedly have suffered loss of consortium and society. Thus, the plaintiffs prayed for damages of $3,000,000. On July 5, 1979, the defendants moved for summary judgment. The parties on September 26 filed a statement of agreed facts. On October 3, a judge of the Superior Court denied the motion on the claims for loss of consortium and society, but granted the defendant‘s motion on the claims for mental anguish and impaired health. The judge reported the case pursuant to
According to the statement of agreed facts, the plaintiffs are the wife and two children, aged five and three, of Michael Ferriter. While working as a carpenter for the defendant, Michael was seriously injured on May 18, 1979. A one-to-two-hundred pound load of wood beams, which was hoisted in a nylon sling from the boom of a crane, fell fifty feet, and at least one beam struck Michael on the neck. The persons hoisting the lumber, operating the crane, monitoring site safety, and supervising the work were O‘Connell employees. The defendant also supplied the materials and equipment used.
The defendant employer attacks the plaintiffs’ claims in two respects. First, it asserts that the counts for mental anguish and impaired health fail to state a claim upon which relief can be granted. Second, the defendant argues that the Workmen‘s Compensation Act,
1. The employer does not assert that the wife‘s and children‘s counts for loss of consortium and society fail to state a claim upon which relief can be granted. Although a wife‘s right to recover for loss of consortium is well established, Diaz v. Eli Lilly & Co., 364 Mass. 153 (1973), a child‘s right to recover for loss of a parent‘s society and companionship through a defendant‘s negligence is problematic. Id. at 165 & n.41. We consider whether such a right exists before addressing the issue of whether, on these facts, a cause of action is barred by
The question whether a child can recover for loss of a parent‘s companionship and society caused by a defendant‘s negligence is a matter of first impression in Massachusetts. However, in Feneff v. New York Cent. & H.R.R.R., 203 Mass. 278, 281-282 (1909), rejecting a wife‘s claim for loss of consortium for injuries to her husband, the court in essence equated a wife‘s interest in spousal consortium with a minor child‘s interest in parental society. In Diaz v. Eli Lilly & Co., supra at 163, we characterized as “vulnerable” the Feneff court‘s reasoning supporting rejection of the wife‘s claim. We recognized a wife‘s right to recover for loss of consortium resulting from personal injuries to the husband.
As in Diaz, to take the measure of the present action, we consider this question in the perspective of the common law. Under the doctrine of paterfamilias, an injury to the family was an injury to the father. Neither children nor wives could bring actions in their own names to recover for personal injury. The action and any damages obtained belonged to the father.2 The law also furnished the father with various actions to protect family relationships. In Diaz, supra at 154-158, we traced the evolution of claims for loss of spousal consortium. Though parallel in many respects, the history of actions for interference with the parent-child relationship has taken distinct turns.
A father has traditionally had actions for abduction and seduction of his child.3 Both causes were founded upon an analogy with a master‘s action for enticement of his servant.4 In order to prevail, the father had to show actual loss of his
In addition to the actions for abduction and seduction, our cases recognized a further consequence of the master-servant analogy. “The remedy, on principle, is equally clear whether the injury is produced by beating and wounding, by enticing away, or by seduction.” Blagge v. Ilsley, supra at 198. See Bradstreet v. Wallace, 254 Mass. 509, 511 (1926). A third person‘s tortious infliction of injury upon a child gave the parent5 a cause of action for loss of services.
These cases supply analogous precedent for a child‘s right to recover for loss of a parent‘s society resulting from the defendant‘s negligence. The common law has traditionally recognized a parent‘s interest in freedom from tortious conduct harming his relationship with his child. As in husband-wife relations, albeit to a more limited extent, our law has compensated parents for sentimental as well as economic injuries.7 If the common law sometimes protects
In Nelson, a minor child sought relief against the defendant for enticing her mother to desert her and her father. The child prayed for damages for loss of support, maintenance and maternal care. This court affirmed an order sustaining a demurrer to the child‘s claim. The court acknowledged that one spouse has a right to the personal presence and care of the other. However, a minor child has no comparable right to the presence and care of a parent. “So far as the parent is bound to support the child the parent may be compelled to do so by other proceedings.” Nelson, supra at 487. The court also raised four practical objections to the child‘s action: “(1) Possibility of a multiplicity of suits ... ; (2) Possibility of extortionary litigation ... ; (3) Inability to
Nelson is the only Massachusetts case to discuss in any detail a child‘s right to recover damages for loss of parental society. Because it involves the disfavored action for alienation of affections, it is distinguishable from the present case. The court implied a distaste for tort litigation among family members. Id. at 487-488. Also, the court was concerned with the likelihood of extortionate litigation. However, when a third party‘s negligence causes injury to a parent and the child suffers loss of society, the litigation does not typically pit family members against each other. Cf. Sorensen v. Sorensen, 369 Mass. 350, 356, 363 (1975) (permitting parent-child litigation over automobile accidents will not unduly harm family). And the potential for extortionate litigation is absent. Diaz, supra at 160.
Although these distinctions may justify the Nelson result, the Nelson court‘s reasoning demands our attention. Reasons similar to those stated in Nelson, and a reluctance to act absent legislative sanction, have persuaded many courts to deny recovery in actions like the one before us.9 For example, in Borer v. American Airlines, Inc., 19 Cal. 3d 441, 453 (1977), the court held “that taking into account all considerations which bear on this question, including the inadequacy of monetary compensation to alleviate [a family] tragedy, the difficulty of measuring damages, and the danger of imposing extended and disproportionate liability, we
The principal reason in Nelson for rejecting the child‘s alienation of affections claim was that a child had no legal entitlement to his parent‘s society. That proposition is no longer true. In an action for wrongful death, the children of the deceased are persons entitled to receive the damages recovered, as defined in
The other objections in Nelson were the subject of discussion in Diaz, supra. We dealt at length with such problems as possible multiplicity of suits, id. at 161-162; purported remoteness of the damages, id. at 159-160; and dangers of redundant recovery, id. at 162-163. We need not rehearse those discussions here. As for the argument that we should withhold our hand until the Legislature acts, we need only repeat: “In a field long left to the common law, change may well come about by the same medium of development. Sensible reform can here be achieved without the articulation of detail or the creation of administrative mechanisms that customarily comes about by legislative enactment. ... In the end the Legislature may say that we have mistaken the present public understanding of the nature of the [parent-child] relation, but that we cannot now divine or anticipate.” Id. at 166-167.
We hold that the Ferriter children have a viable claim for loss of parental society if they can show that they are minors dependent on the parent, Michael Ferriter. This dependence must be rooted not only in economic requirements, but also in filial needs for closeness, guidance, and nurture. In so holding, we do not abandon our determination to “proceed from case to case with discerning caution” in this field. Diaz v. Eli Lilly & Co., supra at 165. As claims for injuries to other relationships come before us, we shall judge them according to their nature and their force.12
2. We turn to the plaintiffs’ claims for negligent infliction of mental distress and impaired health. The judge below allowed the defendant‘s motion for summary judgment on this issue. Relying on the plaintiffs’ complaint and a statement of agreed facts, the judge concluded that “[t]he claims are barred by reason of the case of [Dziokonski v. Babineau, 375 Mass. 555 (1978)].”
The judge properly allowed the motion only if the pleadings and the statement of agreed facts “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.”
In Dziokonski v. Babineau, supra, we held that “allegations concerning a parent who sustains substantial physical harm as a result of severe mental distress over some peril or harm to his minor child caused by the defendant‘s negli-
We think that the present case is within the principles set out in Dziokonski. According to the complaint, the defendant‘s acts and the employee‘s injuries caused the plaintiffs to suffer physical impairment. The statement of agreed facts is silent concerning the plaintiffs’ injuries. The allegation in the complaint, together with favorable inferences, suffices as a showing of substantial physical injury. Cf. American Mut. Liab. Ins. Co. v. Commonwealth, 379 Mass. 398, 400-401 (1979) (using “injury” and “impairment” interchangeably). Furthermore, Michael Ferriter is the plaintiffs’ husband and father. According to the statement of agreed facts, the plaintiffs first saw his injuries in the hospital, not at the scene of the accident. However, on summary judgment, we may infer that the shock occurred immediately after the accident. A plaintiff who rushes onto the accident scene and finds a loved one injured has no greater entitlement to compensation for that shock than a plaintiff who rushes instead to the hospital. So long as the shock follows closely on the heels of the accident, the two types of injury are equally foreseeable. Thus, in all respects, the plaintiffs’ claims fall within the principles of
3. The defendant‘s principal argument is that the Workmen‘s Compensation Act,
In its early forms, the act was elective for both the employer and the employee. St. 1911, c. 751, Parts II & IV (employers). St. 1911, c. 751, Part I, § 5 (employees). See Young v. Duncan, 218 Mass. 346, 349 (1914). The act created incentives to induce both the employer and employee to avail themselves of its benefits. For example, the employee escaped the difficulty of establishing the employer‘s negligence and negating common law defenses such as the fellow servant rule, assumption of the risk, and contrib-
In the present case, the employee not only failed to give notice that he wished to preserve his rights at common law,
In King, a mother sued her son‘s employer for loss of the son‘s services and for expenses incurred in nursing and caring for him. The workmen‘s compensation insurer had made various payments to the son. This court upheld the mother‘s claim. Her right of action “was not in any just sense consequential upon that of the son.” Id. at 422. She sought redress for her own injury, not his. Furthermore, her action was distinct from the action that the son had waived under St. 1911, c. 751, Part I, § 5, the progenitor of
The court relied on the principle “that an existing common law remedy is not to be taken away by a statute unless by direct enactment or necessary implication.” Id. at 425. The language of St. 1911, c. 751, Part I, § 5, seemed expressly to limit the waiver to the employee: “An employee of a subscriber shall be held to have waived his right of action at common law to recover damages for personal injuries ...” (emphasis supplied). The court said, “The Legislature have stated the consequence that is to follow the failure to give the statutory notice; how can the court say that further consequences shall follow, by taking away the right of a third person not mentioned in the act?” King, supra at 423.
Moreover, nothing in the statute took away by implication the mother‘s remedy at common law. Even though the insurer paid the son‘s medical and hospital bills, the mother could recover for her own injuries. She had received no compensation payments herself, and the court remarked, “Our decision does not apply to cases where the parent has received any benefit or compensation under the act.” Id. Because the parties had stipulated to the amount of damages at issue, the court did not have to consider possible set-offs resulting from the insurer‘s compensation payments to the son. Thus, the Workmen‘s Compensation Act neither expressly nor impliedly barred the mother‘s remedy.
In Slavinsky v. National Bottling Torah Co., 267 Mass. 319 (1929), a mother sued her minor son‘s employer in tort for expenses incurred in her son‘s care and treatment. The employee also brought an action of tort against the employer for personal injuries. We held that, under the King rule, the Workmen‘s Compensation Act barred the employee‘s claim, but did not bar the mother‘s claim. Nevertheless, since the mother‘s claim was based solely on the alleged negligence of a fellow employee, we held the employer could invoke the fellow servant rule as a defense. Hence, despite the favorable King precedent, the mother could not recover. Cf.
Finally, in Zarba v. Lane, 322 Mass. 132 (1947), we applied the King rule even after workmen‘s compensation had become compulsory for most employers. A minor brought a tort action against his employer, who was not a subscriber under the Workmen‘s Compensation Act, for personal injuries inflicted by a fellow employee. The boy‘s father brought a count seeking consequential damages. The plaintiffs sought the benefit of
The line of authority from King to Zarba spans thirty-three years and extends beyond the 1943 revision of the Workmen‘s Compensation Act. The cases rest on the principle that employees have always had an election to participate in the workmen‘s compensation system. Yet the plaintiffs in cases like King were not “employees” under the act. See White v. George A. Fuller Co., 226 Mass. 1, 4-5 (1917). They did not choose to waive their common law rights to redress of personal injuries. Nor did they receive compensation payments for their injuries.17 In light of the limited language of
We recognized in King v. Viscoloid Co., supra at 422, that the employee‘s remedy should be exclusive, and we do not question that proposition today. “But we find in the act nothing which goes further than this for the protection of the employer.” Id. In Massachusetts, employers within the compensation act have never been in a position to rely on determinate liability for derivative third party injuries.19 And fault has never been purged entirely from the statutory scheme. This is the legacy of the King decision and our unusual statute,
The defendant‘s second attack seems to rest on the suggestion that the Legislature has tacitly overruled King. When King was decided, the act did not provide for payment of dependency benefits to the parent of an injured, unmarried, minor employee. In St. 1926, c. 190, current version at
The employer points to Danek v. Hommer, 14 N.J. Super. 607 (1951), aff‘d 9 N.J. 56 (1952), as a decision arising under a statute similar to ours, but reaching a result opposite to that which we reach today. The court held that N.J. Stat. Ann. § 34:15-8 (West) barred a husband‘s action for loss of consortium. Assuming that it is fair to characterize this provision as similar to
unmarried, minor child. According to O‘Connell, this history implies that the mother in King could no longer recover for loss of her son‘s services.
This argument rests on several mistakes. The defendant looks to Pierce‘s Case, supra, for authority that workmen‘s compensation is the sole remedy for a deceased employee‘s dependents. In fact, the original basis for that proposition is McDonnell v. Berkshire St. Ry., 243 Mass. 94 (1922). The King case was expressly stated to be of “no pertinency to the facts here disclosed.” Id. at 96. Moreover,
Unlike recipients of death benefits, who receive direct payments, the mother in King would not receive direct payments herself as a matter of right. Also, she would not have had a chance to give notice to preserve her common law rights under
The employer next argues that application of the King rule in the present case would create an anomaly. According to O‘Connell, dependents of injured employees could recover for loss of consortium, but dependents of deceased employees could not.
We acknowledge that
Rejecting the defendant‘s arguments,29 we conclude that the rule of King v. Viscoloid Co., supra, governs the present
4. The plaintiffs’ claims for negligent infliction of mental distress stand on the same footing as the claims for loss of consortium and society. We find no Massachusetts cases in which members of an employee‘s family sought damages from a subscribing employer for emotional harm caused by injury to the employee in the course of employment. The defendant cites no authority from any court holding that a workmen‘s compensation statute bars actions of that type. Cf. Diebler v. American Radiator & Standard Sanitary Corp., 196 Misc. 618 (N.Y. Sup. Ct. 1949); Price v. Yellow Pine Paper Mill Co., 240 S.W. 588 (Tex. Civ. App. 1922) (family member can recover for physical and emotional harm caused by employer‘s independent act following injury to employee). See also Foley v. Polaroid Corp., post 545 (1980) (barring employee action for intentional infliction of mental distress). We conclude that the King rule applies to the plaintiffs’ claims for negligent infliction of mental distress, and those claims are not barred.
5. The judge‘s ruling denying the motion for summary judgment on the claims for loss of consortium and society (par. I, [5], of his report) is affirmed. His ruling allowing the motion for summary judgment on the claims for mental anguish and impaired health (par. I, [6], of his report) is reversed. The case is remanded to the Superior Court for further proceedings consistent with this opinion.
So ordered.
QUIRICO, J. (concurring in part and dissenting in part).
1. I concur with the general conclusion reached in part 1 of the court‘s opinion that, as a general principle of the law
2. I dissent from that holding of the court in part 2 of its opinion which recognizes a right of the wife and minor children of Michael Ferriter, who were not present when he was injured, to recover for the mental distress and for physical injuries resulting from such distress which the wife and children suffered when they learned of the injury to Michael Ferriter and saw him in his injured condition. The court bases its holding on its prior decision in Dziokonski v. Babineau, 375 Mass. 555 (1978), from which I also dissented. The reasons for my present dissent are the same which I stated in my dissent in the Dziokonski case, at 569, viz., that I believe that recovery of damages for mental distress and resulting physical injury suffered by close relatives of an injured person should be limited to those relatives who were present, although not necessarily in the “zone of danger,” at the time of the alleged tortious conduct which caused the original physical injury out of which the claims for mental distress arise. See Dillon v. Legg, 68 Cal. 2d 728 (1968).
Here again, I have reservations about the application of the principles of law allowing recovery for mental distress and resulting physical injuries suffered by close relatives of an injured person, to relatives of a person who sustains an injury which is within the coverage of the Workmen‘s Compensation Act,
3. In part 3 of its opinion the court considers the question whether the Workmen‘s Compensation Act,
The answer to the question before us depends almost entirely on the intent and purpose of the Legislature in enacting the Workmen‘s Compensation Act, which originated with St. 1911, c. 751, and in enacting the various amendments thereto as the Act developed to its present state in
In King v. Viscoloid Co., 219 Mass. 420, 422 (1914), there is this further statement of the legislative intent: “It was undoubtedly the intention of the Legislature by that statute to take away from employees who should become subject to its provisions all other remedies that they had against their employers for injuries happening in the course of their employment and arising therefrom, and to substitute for such remedies the wider right of compensation given by the act.”1
The intent and purpose for which the Workmen‘s Compensation Act was enacted by the Legislature becomes obvious upon a study of social, economic, industrial, legal, and judicial conditions as they developed during the latter part of the Nineteenth and early part of the Twentieth Centuries. These conditions are described and documented in numerous publications, including the reports of a number of committees appointed by the Massachusetts General Court to study the subject and to make recommendations for legislation concerning compensation of injured employees.
The first such committee was established by Res. 1903, c. 87, and it was labeled the “Committee on Relations Between Employer and Employee.” The committee‘s report, dated January 13, 1904, included in part V, at 36-56, a review of the law on employers’ liability for injuries to employees, with particular emphasis on the volume of such cases in the courts and the dissatisfaction by the parties on both sides of such cases,2 and it concluded by recommend-
Although most of the references in judicial opinions and other writings to the rights and benefits created by, or resulting from the Workmen‘s Compensation Act refer to rights and benefits enjoyed by employees, there are corresponding rights and benefits enjoyed by employers under the Act. Among the rights and benefits enjoyed by an employer insured under the Act is immunity against suits for damages for injuries to employees “arising out of and in the course of [their] employment.”
The original Workmen‘s Compensation Act, as enacted by St. 1911, c. 751, included the following provision in Part V, § 1: “If an employee of a subscriber [insured employer] files any claim with or accepts any payment from the association [insurer] on account of personal injury, or makes any agreement, or submits any question to arbitration, under this act, such action shall constitute a release to the subscriber [insured employer] of all claims or demands at law, if any, arising from such injury” (emphasis supplied). A
The original Act also contained the following provision in Part I, § 5: “An employee of a subscriber [insured employer] shall be held to have waived his right of action at common law to recover damages for personal injuries if he shall not have given his employer, at the time of his contract of hire, notice in writing that he claimed such right. . . .” A similar provision has continued to be a part of the Act at all times, and it now appears in
It is clear that the Workmen‘s Compensation Act gives an insured employer immunity against “all claims or demands at law, if any, arising from the injury,” if such claims or demands are brought by the injured employee himself, or by his administrator or executor for damages for his death resulting from such an injury. The problem in this case arises from the fact that the “claims or demands,” although arising out of the injury to an employee of an insured employer, are not being brought by the employee for his injury, but they are brought by his wife and children for loss of consortium and for emotional distress.
In holding that the claims of the plaintiffs are not barred by the Workmen‘s Compensation Act, the court relies principally on the reasoning of the decision of this court in King v. Viscoloid Co., 219 Mass. 420 (1914). That case held that the acceptance of workmen‘s compensation benefits by a sixteen year old injured employee did not bar a claim by his mother against the employer “to recover for medical and
The court, in the King decision, said that “[i]n our statute there is no direct enactment taking away the parent‘s right of action, and we find nothing which takes it away by necessary implication. The Legislature simply have not covered the case. . . . If they had chosen not to leave the parent‘s right of action unaffected, they might have taken it away altogether; they might have made some stated division of the alleged compensation between the minor employee and his parent. . . . But we have no right to conjecture what the Legislature would have enacted if they had foreseen the occurrence of a case like this; much less read into the statute a provision which the Legislature did not see fit to put there, whether the omission came from inadvertence or of set purpose.” Id. at 424-425.3
In my opinion it is one thing for the court to hold, as it did in King v. Viscoloid Co., supra, that in enacting the Work-
There is nothing in the language of the Workmen‘s Compensation Act or in its legislative history to indicate that the Legislature ever foresaw that many years later this court would by judicial decisions expand the scope of the law of torts to permit recovery by a spouse for wrongful interference with a right of consortium, by a child for wrongful interference with his familial rights, or by various persons for mental distress resulting in personal injuries. In these circumstances it seems appropriate to apply the same reasoning which was used in the King case, viz.: “The Legislature simply have not covered the case. . . . But we have no right to conjecture what the Legislature would have enacted if they had foreseen the occurrence of a case like this. . . .” King v. Viscoloid Co., supra at 424-425.
An examination of the volume of cases now covered by the Workmen‘s Compensation Act may serve to give some idea of what may follow in the wake of today‘s decision. The following figures from the 1979 Annual Report of the Division of Industrial Accidents are relevant on this subject.
| 1976 | 1977 | 1978 | 1979 | |
|---|---|---|---|---|
| First Reports of Injury. (Employees of State, self-insurers and all others.) | 218,237 | 235,128 | 242,469 | 249,404 |
| Cases Completed | 11,594 | 11,797 | 11,382 | 14,217 |
| Lump Sum Settlements Approved | 5,896 | 6,829 | 6,880 | 6,880 |
| Lump Sum Awards | $49,009,867 | $59,308,925 | $60,821,665 | $73,515,218 |
Concern over the inadequacy of the compensation provided for the injured employee and his or her family under the Workmen‘s Compensation Act is understandable, and reasonable efforts by the courts to improve the benefits to the level of the employee‘s actual wages, as a minimum, plus periodic adjustment of benefits to compensate for the ravages of inflation, would be commendable if such a decision were within the competence of the judiciary. See The Report of the National Commission on State Workmen‘s Compensation Laws, c. 7, at 117-119 (1972), on subject “A Time for Reform.” However, under our system of a government of laws, such a decision is one of public policy entrusted primarily to the Legislature. Based on all of the considerations discussed above, it is my opinion that the question whether the long established and supposedly exclusive legislative plan for determination of the rights and liabilities arising out of injuries to employees should provide additional or different types of benefits for relatives of the injured employees is one which should be considered and addressed by the Legislature; and that the judiciary should not intrude itself into the making of that policy decision. Longever v. Revere Copper & Brass Inc., ante 221, 226 (1980).
If the Legislature determines, as a matter of policy, that it should bring about an increase in the benefits payable by
HENNESSEY, C.J. (dissenting). I agree with the opinion of the court in its conclusion and reasoning that a minor child should have a right to recover for loss of a parent‘s society and companionship caused by a defendant‘s culpable conduct. However, I do not agree that the child should recover in a case where the parent‘s injury was compensable under the Workmen‘s Compensation Act, and the statutes accordingly limited the legal liability of the defendant. On this point, I agree with the reasoning of both Justices Quirico and Wilkins in their separate opinions in this case.
Dziokonski is admittedly a somewhat arbitrary cutoff of the limits of culpability. So was the Spade rule. So is the Restatement rule. So, indeed, is the rule of Ferriter, as stated in the court‘s opinion. All these are rules of policy designed to limit the great potential reach of the principle of reasonable foreseeability.
Dziokonski, on very compelling facts (mother died in the ambulance while accompanying injured child to hospital), was a modest policy extension of the Restatement policy rule. Not many cases will involve third parties on the scene. The opinion of the court in the instant case has the potential for extending liability of a defendant, in a ripple effect, to extraordinary lengths. This court in recent years has done much to revise many common law principles which needed change. We should think seriously whether there are any good reasons for extending the defendant‘s risk as far as the court‘s opinion, and its implications, do in this case.
I take some comfort that the majority of the Justices may have recognized some of my concerns by the emphasis in the court‘s opinion that the plaintiffs must show that they suffered physical impairment caused by the mental suffering, and that the plaintiffs must suffer their mental shock “immediately after the accident” or “closely on the heels of the accident.”
As a matter of policy, however, I would decline to recognize a spouse‘s right to recover for loss of consortium and a child‘s right to recover for the loss of a parent‘s companionship and society where the injury sustained by the parent-spouse was covered by the Workmen‘s Compensation Act. In Diaz v. Eli Lilly & Co., 364 Mass. 153 (1973), we recognized a spouse‘s right to recover for loss of consortium and society. In doing so, we noted the preferable circumstance, and the defendant‘s right to insist, that the spouse‘s consortium claim be tried with the underlying claim of the injured spouse in order to avoid redundant recovery. Id. at 162. We declared that spouses’ claims for loss of consortium would not be enforceable where the claim for physical injuries had been concluded by judgment, settlement, or otherwise. Id. at 167.
In the context of a workmen‘s compensation injury, there is no litigable tort claim of the injured employee against the employer. Therefore, claims for loss of consortium or of companionship and society cannot be associated at trial with any underlying claim of the injured parent-spouse against the employer. The risk of the jury awarding damages for losses not properly within the scope of the injury to the spouse or child is obvious and substantial. I would not recognize a common law right of a spouse or a child to recover for the loss of consortium or of the companionship and society of a parent-spouse injured in circumstances where the employer‘s common law liability to the parent-spouse is barred by the Workmen‘s Compensation Act.
For the reasons already stated concerning the inappropriateness of permitting recovery for loss of consortium and companionship where the parent-spouse‘s injury was covered under the Workmen‘s Compensation Act, I would
I suspect that the court‘s recognition of these rights arising from a workmen‘s compensation injury will come as a substantial surprise to employers, insurers, the Bar, and the Legislature. I agree with the view expressed in the dissent of Mr. Justice Quirico that, if there is to be a right to recovery for injuries of the type alleged by the plaintiffs, the Legislature (and not the courts) should establish that right.
Notes
There then followed a reference to improper conduct by lawyers and other persons on both sides of such litigation. The report then continued as follows: “At all events, there is a great waste of money, so far as justice and the rights of both employers and employees are concerned. The real beneficiaries frequently are not parties to the litigation, and oftentimes their selfish interests are served by defeating justice or by the promotion of injustice. It is no part of the duty of this committee, nor is it our intention, to censure the conduct of any persons for this condition of things, which indeed may be the result of forces and influences beyond the control of individuals. It would seem, however, to be for the true interest of the community, as well as for the interest of the employer and the injured employee, that some adequate remedy or remedies should be devised to correct these evils.” Id. at 39.
The defendant also points out that Michael Ferriter receives no dependency benefits because his compensation payments, apart from dependency benefits, exceed the statutory limit.
We agree with the defendant that it is irrelevant whether Michael Ferriter actually receives benefits under
Westerlind, however, depended upon construction of the Massachusetts contribution statute,
This argument is misconceived. The label “derivative” tells little about the state of affairs it purports to describe. Our remark in Diaz, placed in context, points out that in some jurisdictions the contributory negligence of an injured spouse bars the other spouse‘s loss of consortium claim. We also noted that the injured spouse‘s negligence has been held to reduce recovery in a comparative negligence State. Diaz, supra, n.14 at 157. The issue is open in Massachusetts. We cited Thibeault v. Poole, supra, to show that this court has applied a similar principle in the analogous context of a husband‘s action for consequential damages.
To answer the defendant‘s argument, we need only point to King v. Viscoloid Co. and its progeny. In actions for loss of services or consequential damages, we have consistently treated the employer‘s workmen‘s compensation defense differently from the defense that the employee was contributorily negligent.