*1 Hay Mary Regina as Guardian Hay, Abruntilla Walter Hospital Hay Center Medical Hay, Walter David b/n/f Shelly Howard Vermont, Fifield Bonnie A.2d 939] [496
No. 83-225 Larrow, JJ., Gibson, J. Underwood, Hill, Peck and Present: Assigned Specially (Ret.), April Opinion Filed *2 Unger Associates, Montpelier,
Putter & for Plaintiff-Appel- lant.
Spencer Knapp Dinse, R. Erdmann, Allen Burlington, & Defendant-Appellee Hospital. Medical Center R. Allan Paul and Robert Paul, S. DiPalma of Frank & Inc., Collins, Burlington, Defendants-Appellees Howard and Fifield.
Underwood, presents J. question This case this Court with a we have opportunity not heretofore had an to consider: does a minor have cause of action for the loss of consortium alive, alleged who is but who is to be permanently hold that such a comatose? We cause action does exist and reverse the decision of the trial denying therefore court such of action. a cause July injured allege Mary Hay on was
Plaintiffs that, as Vermont, and Hospital of while at Medical Center permanently comatose. injuries, result those she became capacity by Regina Abruntilla, complaint her A filed was Mary Hay’s injuries guardian alleging Mary Hay, negligence defendant proximately caused were suf- hospital requesting and nurses aas thereof. fered result complaint, Hay, Mary Hay, filed
Walter husband of complaint included a for loss which joinder He his suit with the consortium. filed a motion for Mary Hay; the court cause of action commenced on behalf of granted the motion. Hay,
Thereafter as father and next friend of David Walter Mary Hay, complaint Hay, filed for his son’s minor son of resulting parental consortium, seeking damages loss of deprivation physical, (1) and intellectual train- moral ing deprivation affection, mother, (2) of David’s protection companionship society, love, mother. of David’s *3 motion, Hay day on behalf also filed on that same Walter party plaintiff Hay, joined son of his David Mary Hay. original by Regina Abruntilla, guardian for suit individually, by Hay, We note that the claims filed Walter David, by Hay, son, and insofar as on behalf of his Walter they damages spousal and con- relate to for loss of action, sortium, though each deriv- independent are causes of underlying Hay, Mary and therefore the claim of ative wholly dependent viability damage each of these claims is against upon Mary Hay’s defend- these same cause of action ants. joinder Hay’s motion for on court denied David trial recognizable ground action “a minor has no cause of that training, training, physical in- moral loss of love, affection, society, protection, com- training, and
tellectual allegedly living rendered panionship parent who was from a through negligence the defendants.”1 totally disabled 1 by legal conclusions, and the liti It assumed the trial court its Mary Hay arguments, gants pleadings, briefs and oral that their though legally she and is therefore not dead even has deceased permanently 18 V.S.A. 5218 remains in a comatose condition. See § 1984). (Supp.
536 Later, Hay’s the trial court its converted denial of David joinder 54(b). motion for into a final order. V.R.C.P. David Hay timely appeal filed a final order.
I
recog
judicially
We must first decide whether we will
nize a minor child’s cause of
claimed
loss
tortiously
consortium when the
has been
in
jured
recovery
but has not deceased.
is clear
It
loss
recognized
Whitney
consortium is an action
law.2
common
Fisher,
468, 470,
934,
(1980);
v.
417 A.2d
935
Bald
State,
317, 320,
492,
(1965) (over
win v.
125
A.2d
215
494
grounds, Whitney, supra,
472,
ruled on other
As an element of common doctrine initially for loss of consortium was created developed by Berger Weber, 1, courts of law. Mich. City Kenosha, (1981); 303 N.W.2d Theama v. 508, 521, (1984). In Wis. the con agree text action, contested Supreme it Wisconsin Court when stated: denying recovery rule for the [T]he companionship was and not created courts legislature, is, therefore, duty it as much our as .the legislature’s change longer law if it no meets society’s needs.
Theama, supra, 117 Wis. 2d at ac Sons, Inc., cord Ferriter v. Daniel O’Connell’s 381 Mass. (1980); Reynolds 695-96 N.E.2d Ueland Co., Metals 103 Wash. 2d
Thus, authority clear that this has the Court to make *4 2 This Court including has defined the common law term “consortium” as “plaintiff’s right affection, conjugal society, assistance, compan ionship, comfort Siegriest, and services of her husband.” Hedman v. 291, 295, 685, (1968) (citing 127 Vt. 248 A.2d Lathrop, Shedrick v. 630, (1934)). term, 106 Vt. however, 172 A. was lim spousal consortium, only concept ited to of consortium for which recovery the loss could form the basis of at Whitney common law. Fisher, 468, (1980). 138 Vt. 417 A.2d appropriate changes law, deem in should we the common do so.
II recognizing considering child’s claim merits of In analogous consortium, parental first look for loss of provisions of existing Under the Ver Vermont law. areas of 1491-1492, statutes, wrongful mont’s death V.S.A. §§ just, may as are recover “such a minor child resulting death pecuniary injuries from [the reference (Supp. 1984). In a parent] 1492(b) . . . .” 14 V.S.A. § killed, involving had been children whose father minor case mental, moral the children’s held the loss of this Court properly in physical training their father was dead Hoadley International “pecuniary term loss.” cluded in the Although Co., Paper 47 A. may limited than “pecuniary be more loss” such a definition Hay sought “parental David consortium” may case, inappropriate that a minor it is parent killed, not if the but a loss if a recover such Berger, supra, 411 Accord comatose. permanently is rendered Mich, Ueland, supra, 426; Wash. at Keeton on the Prosser and 691 P.2d at see also 1984). (5th lawyer’s § ed. at 936 ed. Law Torts may spouse re- Hay argues because either David in event of the death consortium cover loss of for loss spouse, a recover minor child should be able to other parent. upon the of either death recognize indeed a difference between there is consortium: however,] [, element of the relations are but one Sexual love, spouse’s The other consortium action. elements — society, comfort, companionship, affection, services relationships and in each are similar in both solace—are deserving protection. Mich,
Berger, supra, at 426. Not many by parent and child similar are losses suffered position respects, uniquely but the child difficult up parent. make for the loss of a *5 capable seeking adult is of out new relation- an
[W]hile
loss,
ships
attempt
fill
in an
in the void of his or her
may
helpless
seeking
virtually
out new
adult
through
companion.
compensation
Therefore,
the courts
may
only
reducing
or her
be the child’s
method
his
of
deprivation
parent’s society
companionship.
Theama, supra,
117 Wis. 2d
Defendants out that this Court re to have jected concept parental Fisher, Whitney of consortium. v. supra, State, 470-71, atVt. 417 A.2d Baldwin supra, pointed atVt. 215 A.2d 494. It must be parental Whitney out that the of asserted denial consortium in only quoted passage was contained in a from a dissent Naiditch, Chief Justice in Dini Schaefer 20 Ill. 2d (1960). N.E.2d Chief Justice Shaefer’s dissent Whitney, supra, Baldwin, was cited insofar provided support (in statute) deny for absence of a ing recovery wife loss consortium the death her recovery husband. This Court has never denied a child parental consortium, Whitney, loss and to the extent that implies otherwise, prior it is in error. We find that presents recognition Vermont law no obstacle our parental cause of action for loss of on consortium behalf the instant minor child.
Ill
A.
objections
defendants have raised a series of
recognition
right
of a minor child to recover for the
loss
objections
consortium. The first of these
con
duty
cerns
part
whether there
ais
on the
of the defendants to
plaintiff.
the minor child of the
The defendants contend that
precluded by
injury
fact
remote,
that the
to the minor child
too
and there
fore
support
contention,
unforeseeable. In
of this
defendants
cite
Hospital
Inc.,
Vaillancourt v.
Vermont,
Medical Center
139 Vt.
(1980);
The instant case of consortium is a derivative action, Hay’s “secondary where David classification as a tort recovery dependent upon victim” makes his the success of his underlying question mother’s of tort claim. The remoteness relationship concerns between the tortfeasor and the Mich, “primary Berger, supra, tort victim.” at Theama, 426-27; supra, at 117 Wis. N.W.2d at note that see little difference in 522. We also we spouse seeking terms of remoteness between the situation of a consortium, to recover for loss of and that of a minor child similarly seeking recovery of for loss consortium.
B. potential procedural raise Defendants several problems. possibility problems in is the first these recognition. litigation as result of such It is axio creased recognized, is matic that whenever a new cause action there litigation. Making potential is the for increased the courts available for the of such consideration claims the natural object recognition. ever-increasing of such In an era case appellate state, courts of loads in both the trial and this being increasingly pro- criticized for its our where recognition litigation, pensity of a new cause of action step However, rights lightly. it is the is not a which take justice plaintiffs, of the new and the desire to see made class paramount legal system, our which are of available within plaintiffs importance. rights “The class tort should of a new judged merits, forthrightly en- on their rather than own speculation gaging gloomy Berger will all end.” as where Weber, App. 199, 210, (1978) 124, 129 82 Mich. 267 N.W.2d Mich, omitted), (footnote quoted Berger, at 14- Ueland, 103 Wash. 2d However, holding present P.2d at 193. our case is re- allowing pa- stricted to minor children to recover for loss rental consortium. object ground
Defendants also
recognition
on the
of the contested
multiple
will result in
lawsuits
arising
incident,
same
because the various minor
recognized
children and
plaintiffs
other
bring independ
could
agree
ent lawsuits.
that this
problem,
could
we therefore hold that a minor child’s claim for the loss of
*7
parental
joined
injured
must be
parent’s
with the
claim whenever
Ueland, supra,
feasible. Accord
103 Wash. 2d
at
A
arising
further
possibility
out of the
multiple
claims for
consortium concerns the threat
family harmony
plaintiff
where each
acts to maximize his or
her
recovery.
problem
own
Such a
would be exacerbated where
coverage
defendant’s insurance
and assets were insufficient
satisfy
damage
all
problem,
awards.
however,
This
is no
different than that which arises in
involving family
other cases
litigation,
wrongful
such as
suits,
death
and we are confident
ability
in the
of the trial courts to
potential
minimize the
for
possible.
such conflict
See, e.g.,
whenever
Richard,
Richard
(1973)
C. objections Defendants have raised a number of based upon problems concerning damages. agree damages We that speculative and un- for consortium are the loss grounds certain, provide for refusal sufficient but this does not Damages injuries recognize a cause of action. such to ascertain case no more difficult sustained are loss, involving intangible injury, than other classes recovery. of action where The other causes we have allowed intangible “appear damages which are nature involve companionship. society parent’s as those for the loss of a ap- uncertainties, juries daily Yet such courts and assess 522, 344 Theama, supra, 2d at 117 Wis. success.” Berger, (footnote omitted); at see N.W.2d Mich, 2d Ueland, supra, 427; 103 Wash. 303 N.W.2d at at 194. monetary an are Defendants also claim that parent. compensation minor child’s loss of insufficient place of money agree no can ever take that amount We sentiment, expressed however, parent. reject, a lost pa Court, for loss Supreme the California simply fund so “will establish a rental consortium plaintiffs need reaching adulthood, will be less when wealthy they unusually men and guidance, will be maternal Inc., Airlines, 3d Cal. women.” Borer v. American Although Rptr. 302, 138 Cal. 563 P.2d compensation for monetary damages may inadequate be an monetary damages parent, we are satisfied the loss of a loss, be made avail therefore help and should can ease poor may substitute monetary “Although award able. it is the companionship, parent’s the loss of a to ease legal system found way has that our workable 2d at tragic Theama, 117 Wis. party’s injured loss.” Ueland, supra, 103 Wash. accord 344 N.W.2d at at 194. 691 P.2d *8 Finally, contend that the allowance of a defendants for loss of consortium will result a double claim recognition recovery damages. separate cause of however, juries child, minor action on behalf of a will allow among separate properly allocate losses the claims of mul ability plaintiffs. tiple the trial are confident give adequate concerning judges jury court instructions the 542'
computation damages, juries and allocation of and of to follow Ueland, supra, such instructions. 691 103 2d at Wash. 194-95; Theama, supra, 526, P.2d at 117 2d at 344 Wis. N.W.2d protect at 521-22. The trial courts can record for review submitting interrogatories special written or verdicts to the jury. jury In cases where a fails to in follow trial court’s inappropriate damages, structions and returns a verdict with opportunity request an defendants have the correction any such error. V.R.C.P. 59 and note 60. We also provision separate “guar minor antees award will be utilized for the child’s benefit purposes.” Theama, supra, and not for other 520-21; 117 2d Berger, Wis. at 344 N.W.2d at accord Mich, supra, 427; Ueland, supra, at at N.W.2d Wash. 2d at at 195.
D. suggest legis- Defendants that this Court should defer to the lature recognizing and refrain from the cause of action at issue in the case. For the set below, reasons forth obliged legislative recognition do feel to await aof appropriate, merely action which we find be because it is Mass, Ferriter, supra, novel. Accord at 413 N.E.2d at Mich, 695-96; Berger, supra, 427; at at Ueland, Theama, 2d Wash. 691 P.2d at 519, 520-21, Wis. 519. adapt
It is the role of this Court the common law changing people needs and conditions of the of this state:
That court best recognizes serves the law which grew up rules of generation may, law which in a remote experience, the fullness of be found to serve another generation badly, and which discards the old rule when represents finds that another rule of law what should according to judgment the established and settled of so- ciety, property rights and no considerable have become upon vested in reliance great the old rule. It is thus writers the common law have discovered the source and method of growth, growth its and in its its found
543 stationary. not be life. It not and it should health and legis- Change be left of this not character should lature. (1921) Cardozo, Process 151-52 Judicial
B. The Nature of Co., Dwy 92 A. 89 (quoting v. Connecticut Conn. reject J., concurring)). (1915) (Wheeler, Thus we 891 holding dissenting colleagues, proposition and the of our legislature not jurisdictions, and that the some courts other remedy apply such situations must formulate the courts Bush, 88 See, e.g., Electric Co. at bar. General as one Winger, Morgel (1972); 360, 368, 498 Nev. (N.D. 1980). 290 N.W.2d argument prohibit
The
this Court should
going
jury
claim for
to a
because
appropriate
legislative
the issue is more
resolution
wholly unpersuasive;
argument
ignores
respon-
such an
our
sibility
legal question
accept judicial
to face a difficult
and
responsibility
change in
for a needed
the common
This
law.
changing
has often met
new
Court
times and
social demands
by expanding
concepts. See, e.g.,
law
R. &
outmoded common
Builders,
Chandler,
(1984)
E.
Inc. v.
Vt.
A.2d 540
(rejected
legal
merged
law
common
rule that wife’s
existence
Peter,
husband);
Hilder v. St.
144 Vt.
(1984) (implied warranty
habitability A.2d 202
residen-
issues);
Joyce,
Zaleskie v.
333 A.2d
tial
Vt.
(expanded
products
(1975)
lia-
common law to include strict
bility);
Richard, supra (abrogated rule of inter-
Richard v.
Foods, Inc.,
immunity);
tort
O’Brien v. Comstock
(1965)
(rejecting privity
retreat into safe deference It haven responsibility competing is the of the courts to inter balance arising ests and to allocate losses out of human activities. One principal purposes compensate of the law of is to torts people injuries they negligent sustain as a result of the Torts,, conduct of others. Prosser Keeton on Law of *10 1, law, judge-made at 6. common which § “[T]he judge-applied, changed changed can will be when con unjust ditions and circumstances establish that it is or has public policy.” Borak, become bad Ontiveros v. 136 Ariz. 200, 204 (1983). 667 changed, n When the needs of conditions and a have judges adapt must the law common to those new conditions. dynamism, The main characteristic common law its grow chang- it which allows to and to tailor itself to meet ing decisis, which, needs within if the doctrine of stare correctly understood, did was static and not forever prevent reversing the courts from or themselves applying principles of common law to new situations the need arose. Schulze,
Bielski v. 16 114 Wis.
(1962) (footnote omitted). legislature
We also realize in instances where the has change state, question acted the common law of this the fully whether the new cause of action it created the covers always situation it intended to address is not certain. For ex- ample, legislature expressly in the authorized a wife to. bring an for the action loss consortium her husband. (added 43). not, however, No. It did V.S.A. § right bring’ determine a wife could exercise the whether arising prior such a suit for effective Court, Whitney Fisher, supra, in date of the statute. This grapple question had to with the of whether the Vermont recognize a wife’s courts should a cause of action for loss n prior arose consortium where her cause of action of 12 5431. enactment V.S.A. § It recognition must also be noted that our of a new cause of action for consortium, the loss of as in the present case, in way precludes legislature no from legislature addressing subject; free to act. it is still e.g., Ferriter, holding. See, may ratify, reject limit or our Mass, (quoting 516, 413 N.E.2d at Diaz Co., 302 N.E.2d Lilly Eli & 364 Mass. (acceptance of in- example,
(1973)). For 12 V.S.A. § Sunday in sports) verdict was a reaction herent risks (1978), in which Corp., A.2d 398 v. Stratton injured in downhill jury skier awarded skiing accident.
E. argument recogni Defendants’ final is that our tion cause of action for the premiums.
will result in a
dramatic increase
insurance
agree
Washington Supreme
when
stated
Court
against expanding any
argument
his is a
raised
standard
“[t]
recognition
liability.
considering the
area of tort
When
action,
spector
new cause of
of increased insurance rates
Ueland, supra,
2d at
is one of our least
concerns.”
Wash.
139,
[W]e may through compensation be child, to the who benefit Ultimately, stability. adjust her loss with able to his or ideally well, the child will benefit as since will functioning capable who is of a normal adult become setting. in his or her own social such (citing 525, 344 at 521 Theama, supra, 2d at N.W.2d 117 Wis. 426). 14, 303 Berger, Mich. at herein, recognize we that a the cited For reasons damages right for the of sue for has the minor per rendered the has been when weight recognize that the of manently we comatase. While nonreeognition of ac of such a cause legal precedent favors growing appears trend to be a what tion, to follow we choose the are the first state —or the law. of Whether this area legal proposition, specific our decision adopt state —to fiftieth the be in best inevitably we deem to be what will based the of Vermont justice the citizens of State and of interests of Berger, See, e.g., presented to us. question is the the time at 425. 411 Mich. proceedings consistent Reversed remanded for further expressed with the views herein.
Larrow, (Ret.), Specially dissenting. Assigned, J. This case allege pleadings. is before under us the trial court These the plaintiff Mary Hay permanently result comatose as a physical injuries by inflicted issue in- defendants. The appeal Hay’s volved for dismissal David motion joinder right is his claimed to recover for loss of his mother’s majority opinion consortium. The loss of discusses length. specific Although holding consortium at its relates permanent mother, general death” “brain its dis- qua cussion makes it clear that not this is a sine non for liabil- ity, adopting and that the Court is parental consortium, minor’s loss without limitation. analysis holding my This elicits dissent. I am con- wrongful death, subject vinced that this action is now one for statutory provisions 1492(b), limiting of 14 V.S.A. § damages pecuniary injuries, except “in the case where the child,” decedent is a minor where loss of love and companionship may be added. I do feel not this Court can simply ignore existing express scope statute and the of its permitted recovery guise adopting a “more liberal” Hay, rule. The decedent here is Mrs. not a minor. is a de- She cruelly, cedent provides, because 18 V.S.A. albeit § one in her condition “dead.” short, judgment below,
In I would affirm the I because feel type recovery sought expressly barred Wrongful Act, subject repeal Death or amendment general this Court for other reasons than constitutional. The aspects opinion, sweepingly creating cause of “new action,” with, I cannot concur both because I am not convinced their wisdom required and because I do not see them as this decision.
Further, although compelling, I doubt wisdom of launching minority doctrine with such uncertain future support.*
* majority opinion retired, The writer of the is now succeeded judge disqualified trial reversed. repre* Chief Justice is parties sentation of below. joins me in Peck I am to state that Justice authorized dissenting opinion. this Gary Clarke W.
State Vermont A.2d [496 164]
No. 84-252 Gibson, Underwood, C.J., Hill, Allen, Peck JJ. Present: April 26, Opinion Filed Reargument June Motion for Denied