*1 23, 8, July February Argued reargued affirmed and submitted and resubmitted October NORWEST, review, Petitioner on PRESBYTERIAN INTERCOMMUNITY al, et
HOSPITAL review. Respondents on (SC 80-374L) TC CA
Stanley argued the cause for C. Klamath on the brief respondent Presbyterian Hospital. With him Associates, Falls. Giacomini, was Jones & Klamath Hallmark, Portland, cause argued William L. Tuttle, respondent Kenneth M.D. him on brief With Wolf, Hallmark, Klein, Smith, & Port- Lang, was Griffith land. * Justice,* Linde, Tanzer, Campbell, Lent,
Before Chief Carson, and Justices.
LINDE, J. Tanzer, Campbell concurring opinion filed a in which J. Carson, joined. JJ. Lent, a dissenting opinion. C. J. filed * * Denecke, 30, 1982; Lent, July J. Chief Justice C. J. retired June became 1982. LINDE, J. against physician hospital
An action whose permanently plaintiffs brings disabled mother may us the issue whether minor child recover before incapacitation for the loss that a means mother’s According complaint, for the child. negligent the defendants’ require damage treatment caused brain that will lifelong care, to have custodial mother with the result deprived “plaintiff society, been has his mother’s companionship, support [and] education” as well as incur- ring obligation a future his mother. A memoran- opposing complaint dum defendants’ motion to dismiss the years adds that when the mother was disabled she was 25 surviving parent three-year old and the the then sole old plaintiff. accepted position
The circuit court the defendants’ plaintiffs “parental claim was one for consortium” Oregon complaint. unknown to law and dismissed Appeals judges dissenting, affirmed, Court of three App (1981), having review, P2d 1377 allowed we also affirm. *3 I. The basis decision. nonstatutory especially law,
Novel issues of pose recurring questions claims, tort of the sources and examining methods law. of Because other courts the child’s divergent tort claim for a disablement have based variety by present reasons, results on a of well briefed parties, we review the reasons that do well not as as those present that do enter into our assessment of the state of Oregon law on this issue. begins
Discussion of the child’s claim often
with a
statement that such a claim was unknown at common law.
implies
change
This
that
to allow the claim means a
in
existing
places
plaintiff
law and therefore
on the
the burden
why
by
changed
judges
to show
the law
rather
should be
by legislators.1
by
than
If
“common law” one means the
England
among
law
common
of
and those
its one-time
dependencies that
the decisions of
continued to follow
1
Dautel,
Weber,
1,
424,
(1981);
Berger
411
v.
v.
Mich
303 NW2d
425
Hoffman
57,
(1962);
634,
165,
Halberg
Young,
v.
41
ALR2d
189 Kan
368 P2d
58
Hawaii
59
Co.,
445,
226,
(1954).
(1957);
449
Jeune v. Del E. Webb Const.
77 Ariz
546
courts,
denying
English appellate
statement
child’s
Fleming,
correct.
appears
claim
to be
See
Law Torts
(5th
1977).
142,
recently,
it
644
Ed
Until
seemed true also
country,
in
at least where the issue had been litigated.2
1969,
the Restatement
of Torts was revised in
When
707A,
a new section
adopted
deny-
American Law Institute
parental
to a minor child for loss of
ing
care, with the comment
that
the rule was stated “with
on
part
drafting group,
some reluctance
several of the
compulsion of the
This is no longer
and under
case law.”3
accurate;
in
recognized
recent decisions
three states have
Moreover,
in
like
child’s claim
cases
that before us.
other
strength
are counted as
the claim on the
rejecting
states
2
jurisdictions'
litigated
had been
1980
None of the 20
which the issue
before
Butler,
Annot.,
(1982);
claim. See
AGAINST PARENT parent who reason of his tortious conduct is liable to a for illness “One bodily resulting parental loss of or other harm is not liable to a minor child for support and care.” Restatement of Torts Second Prosser, proceedings, Reporter,
In the Dean said: oral “Well, nobody position gather I wants to reverse the of 707A and equivalent when the allow the child to recover for loss of the of consortium personally injured. mother is One federal case Hawaii did father or *4 once, changed, presently got and all of the and reversed when the state law recovery, have no case cases have refused to allow so we would position taking the the action would lie. whatever for 707A, any uplifted reversing in so I would “I don’t hear voices favor of approved, proceed.” assume that it is Institute, Proceedings, at 179. 1969 American Law
547
which
courts or of federal courts
decisions of intermediate
the
law.
be accurate reflections of
state’s
may prove not to
early
in the
may have been assumed
Whatever
law,
private
American
of
law
the decentralization
years of
Ameri-
precludes
single
reference to a
system
in our federal
of
Supreme
Judicial Court
can common law.4 When
Sons, Inc.,
Massachusetts,
in Ferriter
Daniel O’Connell’s
(Mass 1980),
the children of
first allowed
That a novel issue is resolution says Analysis depends little about how to resolve it. often point starting upon on the from which one enters it. Two injury characteristics of the claim at issue here are that the plaintiff consequence occurs as a of an to is to person, consequential another and that this plaintiffs psychic physical interests rather than to his person tangible property. If one starts from a broad premise every person predictably injured by that another’s negligence appropriate damages, is entitled to recover put present compelling defendants are hard obstacle to allowing negligently deprived such to a child of a functioning parent. Starting, hand, on the other from a body generally imposes liability only of law that depend to the initial victim but not to others who that on liability victim, and no harm divorced from tangible plaintiff injury, put why is hard to show how and such extends to the minor children of a disabled parent plaintiffs compara- but to no other classes of whose similarly ble interests are harmed.
A number of courts have undertaken to allow or deny parental society, the child’s action care, for loss of and support by assessing arguments policy numerous practicality against adduced for and such a cause of action. arguments explain why An examination of these will we do that follow course. early In issue, one of the decisions to consider the Supreme sympathetically Court of Kansas stated the case for the child’s claim: knowledge parent
“It
is common
that a
who suffers
physical
give
serious
or mental
is unable to
his minor
care,
parental
children the
training,
compan-
love and
ionship in
degree
might
the same
as he
have but for the
Hence,
injury.
court,
it is difficult for the
on the basis of
justice,
type
natural
to reach the conclusion that
sympathies
action will not
lie. Human tendencies
suggest otherwise. Normal home life for a child consists of
complex incidences in which the sums
a nurtur-
constitute
ing
vitally important parent-child
environment. When the
love, guid-
the child loses
relationship
impaired and
is
parent,
the child
companionship
aof
ance and close
precious.
something
valuable
deprived
is indeed
seriously
otherwise.”
contend
No one could
57,
P2d
Dautel,
Kan
Hoffman
(1962).
rejected
because
the claim
The court nevertheless
growth
“far-reaching
as the
results,”
it identified
which
multiple
possibilities
litigation”
with the
“new field of
Jersey Supreme
recovery.
The New
Id.
actions and double
upon
action
similar
cause of
denied the child’s
Court later
“considerations of
Transportation
policy.”
v. Salem
Russell
assumed
The court
Co.,
intangible harm of a them merit. disablement more detail and found Love, without supra supra 2; Note, note n. 2. Supreme
Nevertheless,
in 1977
the California
Court
recognize
declined to
what
it called “a new cause of
parent-child
rela-
action for
loss of consortium
Airlines,
American
19 Cal3d
tionship.” Borer v.
(1977) (child’s action);
858, 860,
Rptr
Cal
P2d
Angeles County,
v.
Court
Los
19 Cal 3d
Superior
Baxter
(1977)
action).
Rptr
(parent’s
563 P2d
138 Cal
psychic injury
denied
to children of
The court
when
is fore-
person,
disabled
even
negligently
seeable,
As reasons it listed
grounds
policy.”
on
of “social
for the
inadequacy
money
compensate
to restore or
compan-
a disabled mother’s
losing
harm
intangible
only a future benefit
ionship
guidance,
substituting
loss;
consequent
unrelated to that
difficulties of measur-
instructing juries
for the child’s loss and of
so
ing damages
recovery;
multiplication
of actions
as to avoid double
children; and
there are several
and of
when
insurance rates. 563
resulting public burden of increased
Mosk,
out that
dissenting, pointed
P2d at 862-63. Justice
each of
rejected
court had
years
three
earlier
California
action for
establishing
wife’s
policy arguments
these
consortium,5
recovery by
except
potential
loss of
at 867-68.
more than one child. 563 P2d
Sons,
Ferriter v. Daniel
reached
supra,
O’Connell’s
contrary
rehearsing
its
result
in Massachusetts without
policy arguments previously
debated
California court
predecessors.6
year,
The following
Michigan’s
its
supreme court became the second to allow the child’s cause
Weber,
Berger
of action.
n. 1. The case illustrates
supra
the uncertain role of such
in common law deci-
arguments
*7
opinion began by finding analogies
sions. The court’s
the child’s claim in
and
“existing judicial
legislative pol-
icies” such
the action for loss of consortium between
spouses,
right
parents
the
to recover
for the loss of
children,
and
companionship
negligently injured
and
recovery
the child’s similar
under the
death
and
“dramshop
statute and under a
act.” It then reviewed
rejected
pragmatic
arguments
concerning multiple
the
5
Rodriguez
Rptr
Corp.,
v. Bethlehem
12
P2d
115 Cal
Steel
Cal3d
525
765
6
rejected
pragmatic objections in
the
Diaz
The court noted that
it had
most of
Co.,
(1973),
Lilly
v. Eli
&
Mass
Most
the Iowa
Court blended
analytical
policy arguments
and
in the third decision allow-
claim,
Moes,
(Iowa
ing
child’s
Weitl v.
The arguments opinions reviewed in the foregoing commentary juxtapose different kinds of reasons. Con- plaintiffs tentions about the character loss its previously rejected partly strength The Iowa court had a child’s claim on the apparently precluding independent recovery by spouse aof statute or child or Derby, (Iowa 1973). injured person. Hankins v. an Much NW2d 581 opinion in Weitl is devoted to reexamining reaching contrary interpretation of the statute. *8 assumptions
compensability by money or address facts society, beings that in in our case a about human parents postulates dependence of children on their and economic to an that leaves other services and satisfactions accept market. likely the view that a disablement is We possibly permanent psychic painful mean a and although proved child, in the indi- to a one to be principle case, and that it is no more or less vidual money psychic injuries compensable in than other for which opposing psycholog- But are allowed. whatever legal obligation and social contentions mean for ical compensate incapacitating parents, one of its a child for they properly “weighed” against cannot be concern about person’s rates, of law. A insurance at least not court liability in law remains the same whether or not he our still liability properly, provision insurance; and cost has such insurance varies with
potential law, under with the cost of insurance. not the law loss are contentions about the child’s Nor such processes litiga- with concerns about the commensurable genuine wrongs that courts are ill there are tion. No doubt right, that do not merit the social suited to set and others litigation. if are to be the reason for But these costs costs denying action, that meritorious cause of
an otherwise by legislatures judgment rather than to be made one rights people have, to serve whatever courts. Courts exist weigh I, § 10;8 not for them to Const art it is Or against mer- their own institutional concerns “balance” cognizable Assuming right. has a child its of such agree all, with the view at we would claim identify and it is more rational the Iowa court individually, preferably ain consoli- that claim evaluate dated Jersey proceeding, court’s with the New rather than implicitly included in a will be view that the child’s loss existing parent’s damages.9 injured jury If verdict for the I, Const, § art 10: Or administered, openly secret, justice shall be be but “No court shall delay, every man shall have completely purchase, without without property, person, remedy by him his law for done due course of reputation.” separate more Moreover, claim raises child as a to examine the injured against partial cleanly question defense whether a total or procedures make it difficult to consolidate different claims overlapping recoveries for the same for trial or to avoid deny that there is a claim loss, the obvious answer is not to procedural procedures. but to reform the Shortfalls *9 justify shortchanging valid claims. reform do not otherwise explain reason not to the court’s the court’s There is another by existing understanding state of the law policy. Legislators, judges, social unlike views of desirable any any may change at time without demonstration the law illogic, incongruity, simply upon changes error, in of or personnel political agenda. in the That is what elec- and day’s legislative are tions and proponents debates for. One unsuccessful opponents policy may of a social renew the They day change campaign the next to the law. should be argu- a free to debate the merits untrammeled court’s why existing represents ments its view of the law the better policy. expresses present This court no such view of the issue. lay pragmatic arguments
We therefore aside the against damage adduced for and a child’s action for the parent question disablement of a and turn to the how plaintiffs comparable claim relates to other claims. Analogies
II. other examined courts. said, As we have two characteristics of the harm plaintiff negligent for which a would hold defendant liable consequence injury are an that it occurs as a of to another person, it is or emotional harm divorced any person injury plaintiffs physical tangible from to property. generally, though These not invari- characteristics ably, recovery preclude negligence. Plaintiff, how- based on liability specifically injury ever, narrows the asserted to a family relationship, minor child’s interest in its closest parents. with its
Legal arguments against for existence sought analogues a such tort claim therefore have damages treatment of other dis- claims for emotional family relationships. Typically tress in such these include claim, fault, parent’s parent’s contributory such as the should defeat or diminish not, apply damages injury If difficult to tort child’s interest. it would be lump the distinction in a trial which assumes that both interests are covered one recovery. sum (2) consortium, parents’ spousal
(1)
for loss of
actions
to minor chil-
injuries
recovery
negligent
in the
noneconomic loss
dren, (3)
of the child’s
recognition
(4)
for alienation
parent,
a
actions
wrongful death of
dis-
(5)
actions for emotional
affections,
bystanders’
relative.
death or
close
witnessing the
tress from
negligent
a child’s claim based on
with
Courts confronted
or all of these
have examined some
parent
only
foregoing
do the
results. Not
divergent
with
analogues
states,
they may
apparent
reflect
among
differ
actions
state,
distinguishable
and each is
one
inconsistencies within
from the child’s claim.
respect
in some
Ferriter,
deci-
court in
first
The Massachusetts
action,
drew
to allow the child’s cause
sion
for emotional
child,
in which the
seduction of
for abduction or
actions
recognized to be
the child’s services was
father’s loss of
if one’s
was also available
such an action
Although
fiction.
that no
wounded,
the court conceded
beaten or
child was
*10
mental
parent’s
compensated
case had
Massachusetts
child,
this offered
so
physical
suffering
by
that such a claim
for the court’s assertion
support
little
compensation
in such
“analogous precedent”
had
a child
injuries.”
as well as economic
“sentimental
parents’
the
faced
Moreover,
court
the Massachusetts
2d at 692-93.
NE
against
a child’s claim for
rejection of
its earlier
her and
her mother
to desert
who had enticed
defendant
in Ferriter as the “disfavored
father, which it described
her
as
distinguished
affections”
alienation of
action for
and of
litigation”
of “extortionate
greater
threats
posing
2d at
each other. 413 NE
family
against
members
pitting
they do not
policy,
but
may
These
be distinctions
694.
upon the
harm inflicted
character of the
differentiate
inten-
from the
as distinct
by
negligent
minor child
on the
court
fell back
Finally,
the Ferriter
tort.
tional
society decedent’s
loss of the
damages for
inclusion of
death, concluding: “We
statutory action
the child’s resonable
protect
entirely appropriate
it
think
suffers
parent
when the
parental
expectation
2d at 695.
413 NE
than death.”
rather
negligent
in favor of
decision
Court’s
Supreme
The Iowa
substantially influenced
mentioned, was
claim,
already
as
by its
of an
reading
provided
Iowa statute which
for the
recovery of “the value
of services and
as spouse parent,
by
directly
both”
injured person or her estate
and further provided
“recovery
for these elements of
may not be had
damage
spouse
children,
as
previously
such.” The court
interpreted
had
this statute as
recovery
permitting
for all elements of the child’s claim for
mother,
though
procedurally incorporated in the
Hankins,
action
the mother or her administrator.
supra
n. 7. When it
in Weitl v.
interpretation
reexamined its
Moes, supra,
the court cited Hankins as recognizing a
statutory claim
child’s loss of parental consortium.
It
therefore treated its new
merely
decision as
moving the
child’s
from the
claim on behalf
parent
of the
into
a separate action:
more
change
drastic
in our law
“[T]he
would result not from recognition
claim,
but from its
denial.”
In the Michigan case,
Berger
supra n.
the majority briefly listed the action for
spousal
loss of
consortium,
parents’
action for a fictitious loss of an
injured
services,
child’s
and inclusion of loss
compan-
ionship in damages under the wrongful death act as well as
under a “dramshop act”
sufficiently
demonstrating
state’s policy to recognize a child’s cause of action based on
a negligent
injury to a parent.11 It discounted the asserted
contrary policy of a statute barring suits for alienation of
affection, because this bar coexists with
negli-
actions for
gent injury
spouse
to one’s
or child. The court concluded
that “the real anomaly is to allow a
recovery
child’s
for the
loss of a parent’s society and companionship when the loss-
attends the
deny
death
but to
such
when
the loss attends the parent’s injury.”
The
in such an
action for
to
child because
parent’s
expenses
damages are limited to “loss
services
action
at
n. 38. Their main attack was
incurred.” 303 NW2d
consortium, which
to the action for loss of
analogy
on the
had been
curiosity”
a “historical
that first
they described as
negli-
torts into
expanded from old intentional
unthinkingly
spouses by
the
equalized
thereafter
between
gence and
by abolishing the
the wife rather
than
extending it
to
pre-
the dissenters were not
Apparently
husband’s action.12
the inclusion of
make a similar attack on
pared to
wrongful
under
companionship
for lost
for a claim
act; they only
analogy
death
warned
all who are
be available to
injuries
based on nonfatal
would
act,
only to
death
claimants under the
eligible
children.
injured person’s
rejecting
opinion
recent
major
To turn to the
Airlines, supra,
action, Borer v. American
cause of
child’s
argument
an additional
Court faced
Supreme
the California
in Dillon v.
decision
to that court’s
recovery by analogy
(1968),
Rptr
69 Cal
728, 441 P2d
Cal 2d
Legg, 68
for emotional
of action
a mother’s cause
allowed
which
of her
caused death
negligently
witnessing
trauma
compensable
a trauma
holding that such
child.
in Borer
statement
square
to
with the
is hard
growing
trauma of
for a child’s
compensate
money cannot
mother, which
helpless
disabled
permanently
with a
up
than
forget
harder
lasting and
longer
be
may well
The Borer
a death.
an
or even
witnessing
shock of
to cases
limited
however,
being
Dillon as
court,
explained
somatic conse
trauma has
bystander’s
which
analogy
deny
This sufficed
P2d at 864.
quences. 563
another
Borer,
only until
although
claim in
the child’s
psy
accompanied its
consequences
that such
child claims
however, the
condition;
disabled
from a
chic
phys
requirement
court
later abandoned
California
infliction
negligent
an action
harm in
ical
created as a
action for
303 NW 2d
Justice
negligent
new tort in 1952 and therefore would not be
at
Levin
432-33, quoting
interference with consortium is an
quoted
the House of Lords to the
from Best
v. Samuel Fox &
anomaly
extended even to the wife.
effect that
Co.,
that would not be
[1952]
the husband’s
AC 716.
*12
Hospitals,
emotional distress. Molien v. Kaiser Foundation
(1980).13
Rptr
27 Cal 3d
616 P2d
167 Cal
any
Borer,
In
the California court also denied
anomaly
allowing recovery
wrongful
for emotional loss in
injured parent
perma-
death actions but not when the
nently
is
primary purpose
wrongful
disabled. It
saw
compensating
death statute not in
the survivors for their
preserving
loss but in
the deterrent function of tort
law
fatally injured person’s
a
survive,
when
own claim did not
“providing
thus
to tortfeasors
substantial
incentive to
a.
rejecting
finish off their victims.”14
In
of other courts have ascribed
varying significance
analogies
to the several evident
deciding
against
damage
for or
the child’s
claim for the
negligent incapacitation
parent.
aof
The child’s
action has been
consortium,”
labeled as one for “loss of
involving
family relationship
then allowed as
a similar
as
spousal
lacking
element,
action or denied for
the sexual
or because that action
anis
anachronism which should not
analogy
be extended. An
has been drawn to the
13 Molien
against
allowed such a cause of action to a husband
medical
negligently misdiagnosed
syphilis
having
defendants who had
his wife as
and told
him,
consequences
marriage.
her to inform
with destructive
on his
physical
Dillon to cases
involving
California court’s
limitation
recently
rejected by
Supreme
has itself
been
Judicial Court in Culbert v.
the Maine
Sampson’s Supermarkets,
(Me 1982).
action for loss previously been allowed for when that action has not shaky trauma from Recovery solely injury. emotional family potentially member is serious witnessing are prerequisites that action and its parallel, but close intentional alienation of Denial of an action for unsettled.15 an incompatible allowing cited with affections has been as interest, it has invasion of the same negligent action for voluntary involving dispute over distinguished been family member. conduct of *13 for a
Probably recovery psychic damages for a strongest parallel death offers the parent’s wrongful by negligent for a disable- recovery losing parent similar have not statutory, opinions action is and the ment. That death policies a state’s agreed underlying on what enacts. statute analyses, we examine divergent of these light
In the existing fit into the law of opposing contentions how the this state. Oregon negligence law.
III. Obstacles Oregon has jurisdictions, Like other common law solely to liability negligent injury for for precedents few from an resulting or for harm psychic interests defendant’s motion to dismiss person. Although another pleading as cause plaintiffs complaint characterized consortium,” himself plaintiff “parental action for loss of negligence.” an “action in Viewed simply it describes case, special negligence law without simply as a common these basis, escape action must each of statutory plaintiffs two obstacles. are few causes of action
If there such, objec the reason is not found harm as emotional that nature. for harm of monetary damages tions to the nature of by focusing, found not on may reason be defen loss, scope but on the source plaintiffs law common liability. recognized This court has dant’s defendant’s conduct alone when liability psychic injury Grossman, 419, NYS 2d 554 See Tobin v. 24 NY 2d 249 NE 2d Dispute Bystander: (1969); Simons, Psychic Injury The Transcontinental and the California, New York and Johns L Rev Between 51 St. equivalently was either intentional or reckless of another’s responsible relationship,16 infringed in a or when it feelings legally protected apart causing some interest distress, only even The court negligently.17 claimed when found in an infringements legal rights has invasion Hinish, supra n. in the privacy, negligent removal of Hovis, supra n. and in the spouse, remains of deceased delivery negligent passport plaintiffs that allowed child country, McEvoy, supra to be taken from this n. 17. But we yet ordinary have not extended solely psychic any or emotional not accompanying physical actual threatened any injury harm or to another legally protected interest.18 illustration, these principles, simple
Under to use a a child well have a might solely cause of action for emo- someone, tional if distress; distress in order to cause that injured parents family not the child’s but a favorite pet. Cf. Stride, Fredeen v. supra also, n. 17. Arguably, child has rights in the parental relationship sufficiently like those McEvoy asserted in Hovis a similar for a psychic injury inflicted even negligence. The nature of the harm asserted here therefore does defeat not alone plaintiffs remains, however, claim. There objection asserts, he though himself, loss it is an injury to arises solely consequence as a of an person. to another *14 recently
We have
reaffirmed the denial
of
person economically
to one
injured
consequence of a
16
May
Co.,
Dept.
131,
(1981);
Hall v. The
Stores
292 Or
63Y P2d 126
Turman
Bureau,
443,
Billing
(1977);
Pollard,
v. Cent.
279 Or
568 P2d
Rockhill v.
1382
259
54,
(1971).
Or
560
Ore-Ida Foods v. Indian
negligent
person.
to another
Head,
909,
(1981).
opinion
The denial of
supra,
quential
Foods,
meets the
in Ore-Ida
loss
economic
alleged
plaintiffs
present
loss of his mother’s
for his
claim
support
obligation
his dis
to
future
his own
recog
question
whether the law
remains
abled mother.
nizes a wider
consequences
liability
range
noneconomic
for foreseeable
person.
physically injured
beyond
to others
plaintiff,
that have allowed
and those courts
note that
We
claims like
liability for the foreseea
his,
assert such
do not
any person
psychic
is in a close emotional
who
harm to
ble
only
They speak
person.
relationship
injured
relationship
parents
Ferriter
minor children. See
between
supra,
696;
Sons,
2d at
413 NE
v
. Daniel O’Connell’s
Berger
supra,
But see
Moes,
2d at 270.
311 NW
Weitl v.
Weber,
(reserving
supra
decision on
“severely”
at 427
n.
303 NW2d
minor children with
action is limited to
whether
injured parents).
in a
difficulties
This has its own
assumptions
practices
rela
about such
and common
whose
tionships
parentage
rapidly changing.
that
are
Would
from
follow
a child to claim a
entitled
only
biology,
cohabitation,
cohabitation,
married
or
or
adoption?22
parentage by
solely
legal
birth
any
to minor children
event, to limit
In
premise
cause of action
for the asserted
means that the
theory applied
negligence
general
indirect
not found
psychic injury
such,
this can
because
but foreseeable
relationships.
many
Rather, as shown
other close
occur
premise
II,
must be
Part
discussed in
the cases
specifically
parts
sought
deal
that
the state’s law
in those
family relationships.
injuries with
persons
negligent
prerequisite
taxicab license was
toward
insurance a
for a
ordinance,
potentially
protected by
primarily
i.e.
those
intended to be
primarily
responsibility,
dependent upon
toward the
the licensee’s financial
licensee.
appear
potentially
predictable
would
as.
affected children
While the
existence of
analysis,
policy”
premise
liability
cites it as
“social
in conventional
Co.,
Transp.
expensive,
argument
see Russell v. Salem
is too
an
J.,
Mosk,
Airlines, supra,
supra, quoted
P2d at
v. American
Borer
Borer,
dissenting in
Of the custodial action for the of a injury child, 30.010, this court ORS has said that the statute preserved parent’s injury common law action for such by estate;23 independent of an action the child or the child’s parent but the court has not decided whether has a claim a injury, for emotional distress from child’s nonfatal deaths, perhaps because almost all the decisions involved for which of such was excluded until 1973. The action therefore does not lend to part applies such a claim on the of a child. The same recovery for emotional observing physical trauma from a family, open to member another issue in this Similarly, Oregon precedent state. there is no on a child’s a parent’s action for alienation of affection.24 injuries family relationships Other have had legislative perhaps might provide prin- recent attention and ciples coherent view of the civil one role of protecting relationships. proves such This not to be so. alienation spouses,
As between both the action for of affection and that for loss of consortium as actions began only available to the husband. This court held that allowed her removing act wife’s civil disabilities affection, to sue for alienation of her husband’s but extend the same act did not wife cause 23ORS 30.010: “(1) parent custody may having A an action of his or her child maintain
for the
child.
“(2)
parent may
only
A
her child
recover
for the death of his or
under ORS 30.020.”
Co.,
4, 9-11,
(1903); Whang Hong,
Schleiger
See
v. N. Terminal
43 Or
Most in companionship survivor’s loss of decedent’s and 25 1880, 6, 1:§ Or Laws at impose recognize upon “All laws which civil disabilities a wife which are husband, hereby repealed; imposed recognized existing the are not as to
Provided,
upon
right
that
this Act shall not confer the
to vote or hold office
law;
any unjust usurpation
except
provided by
the
as is
and for
wife
otherwise
appeal
property
rights,
right
in
the same
her
of her
or natural
she shall have
alone,
redress,
equity
husband
for
that
the
own name
courts of law or
has.”
Keen,
362, 364,
(1907);
Ry.,
v.
L. & P.
Keen v.
49
“There shall be no civil cause of action for alienation ORS 30.850: criminal conversation.”
“There shall be no civil cause of action for above, As stated wrongful for death. statutory action the American in Borer v. majority the gave also parallel Weber, supra, Airlines, Berger dissent and the supra, by the California are not convinced difficulty. We the most the death action on wrongful the distinction court’s injury, its on a nonfatal that, an action based unlike ground escape the that the tortfeasor object main is to assure is the observation liability. point More in effect of deterrent wrongful death law the dissenters Michigan a decedent’s of others besides losses recognizes intangible threat- scope of the law because this children, not so much dis- from nonfatal such losses extend for ens to the premise ablements, it undercuts but because child’s for minor special concern expresses law parents. on its dependence act wrongful death history Oregon’s
In Tongue’s were reviewed Justice under it and decisions Corp., Motors v. General the Court Coheen opinion for Ward, Escobedo v. P2d 223 See also Or summary, original at 97-99. In n. supra Deady Code Act enacted in Campbell’s Lord version of a decedent personal representative of 1862 allowed decedent, death of the recover act made estate. The the benefit of the limited to $5000 family or other decedent’s for the special provision no no “solatium” interpreted to allow and it was dependents, loss to only pecuniary but anguish grief for their provide that changed in 1939 to This was the estate.28 the benefit of would act “for representative personal were only if there dependents,” widow or widower estate, the economic but benefit of the these for the none of *18 1939, Laws ch Or recovery changed. was not of the premise remove the in 1967 to was amended again The act 466. (then $25,000) and to maximum limitation on the compensa- fair and in terms of reasonable damages specify loss, any, spouse, to the if pecuniary actual tion for the Goheen, 544; see ch Or Laws or estate. dependents, at 168-171. supra 28 (1892), following Ry., P 497 Line 21 28 v. Or. Short Or Carlson 1880). Ry., Sawyer 262 (D & Or v. Or. Cal. Deady’s opinion 6 Holmes
Judge own
565 legislature Following further Goheen, the of damages in an specification allowable amended See wrongful ch 718. Laws 1973 death, Or for action Comment, Develop- Oregon: Wrongful New Actions Death provisions of the Two ments, L J 217 Will provision present issue. One relevant are statute expanded spouse, by damages decedent’s recoverable damages parents loss of the “for to include and children ORS society, companionship 30.020(2)(d).29 of the decedent.” services and apportionment provided for Another beneficiary’s according ORS loss. to each these recognizes legislation Indisputably this 30.040, ORS 30.050. family his or person’s suffers more immediate that a merely pecuniary untimely does loss. What than death her for a recognition action cause of for the child’s mean disablement? nonfatal self-evident. The answer is no means correct development by implications The drawn from the historical by Judge dissent and Roberts in the of the the Chief Justice’s majority Appeals are A Court of tenable conclusions.
Court, however, has concluded that the amendments to the general wrongful death statute do not demonstrate a more exception for one from the limits on person’s injury to another. loss from legislative history wrongful death
The opposed help. legislation amendments were offers some The testimony grounds that the emotional in committee on companionship compensated injury of lost cannot be money compensation lead to increased and that such would legislature’s rejec- litigation higher insurance costs. rejection objections supports our tion of these 30.020(2) (d): ORS “(2) may in an under this section be awarded In an action amount which: “(d) reasonably compensates spouse, Justly, fairly the decedent’s society, compan- parents pecuniary loss of the loss and for children and ionship . .” decedent. . and services of the punitive damages provisions also made The 1973 amendments 30.020(2)(e), any separate recovery by parent cases, offsetting death ORS 30.010(2). services, ORS for loss of a deceased child’s *19 the same arguments present made defendants and in Airlines, hand, Borer v. American supra. On the other legislative history also object makes clear that of the legislation was to correct in the shortcomings existing measure of for an damages action, established cause of not recognize a new prescription one. The of “actual pecuni ary loss,” if strictly applied, preclude any often would recovery death, for wrongful particularly when decedent very was young person. or old or a sponsor disabled The opinion 1973 amendments cited the sug in Goheen to gest that juries nevertheless would nonpecuniary take ele consideration, ments into “why so put them in the statute and be frank jury.”30 with the
The legislature proceeded to adjustment make that in the familiar action for death wrongful without further reexamining either the contemporary historical or the basis for that action. The tortfeasor’s liability to the survivors of question. deceased victim was not in Although the emo tional impact “society, of the lost companionship and serv resulting ices” from a nonfatal disablement is similar recognized death, that now wrongful recoveries for may severe, lasting even be more it need not follow from this alone that a liability defendant’s is the same. The may law liability case, treat death causing special compensation necessarily beyond which extends the ordi nary restitution to the immediately injured person. Perhaps that distinction between the often fortuitous death or sur vival of the injured person deserves reexamination when the focus is moved to the consequential persons.31 harm to third But the single to the 1973 analogy amendments of the 30Minutes, 3, 1973) Judiciary, (May Leg House Committee on Or 1973 Sess at 5.
31In other contexts this court has described as anomalous a distinction in
Clinic,
injuries.
for fatal or nonfatal
See Libbee v. Permanente
(1974), Whang
Hong, supra
Plaintiff also must *20 denying him a for to avoid to his order contrary equal privilege to citizens, on terms with other equal Oregon Constitution, I, the or the article section 20 of contrary protection amendm the the federal 14th laws, of to distinctions, the child ent.32 He attacks two one between parent, a loss of of society, dead who recovers for the parent, not, and the child who does of disabled spouse person, who the other between the of a disabled person’s child, consortium, who recovers for loss of and that may actually questioned does not. It whether these are be people, I, of at least as that word is used in article “classes” may children, As lose a section 20.33 between two either parent death, disablement or to first to followed to or one by parents other, as children leave the indeed lose who family legislature provided other for for reasons. When the action, it child’s loss death by per distinguish hominem, did not between children ad by characteristics, sonal or social illustrated laws dis criminating against of have children born out wedlock that by spouse society longshoreman’s be loss of should suffered from proved.” compensable, when Alvez, 274, 281, 284, 291, Export Lines v. 446 US L Ed 2d 100 S Ct American (1980). 32 Const, I, § art Or 20: any passed granting citizen citizens law shall to or class of “No be terms, immunities, which, belong upon equally
privileges, shall not or the same to citizens.” all Const, XIV, § amend 1: US any jurisdiction equal deny person . . within its “No State shall .
protection of the laws.”
I,
literally
(“No
legislation
Although
shall
is
law
article
section 20
addressed
...”),
part
passed
principle
no
of this
would remain a
be
rule violative
XVIII, §
in this
Or
art
7.
common law
state.
Const
Clark,
231, 240,
claim
Plaintiff does not
Or
been found to them deny equal protection.34 The distinction not of among scope kinds children but between of defendants’ fatal as non- causing distinct injuries fatal immediate victims their negligence.
The rules that allow a injured cause action to an person’s spouse not can plausibly but a child more be by as a personal described distinction or social characteris At least be if tics. it could so described the law purported to deny otherwise merely identical claims to a child reason by age relationship, although the classification would necessarily I, majority, violate article section 20. The age of course, legal is a criterion for many privileges immu nities; indeed, plaintiff it is the argues making who the distinction between identical of chil otherwise claims dren who have companionship lost parent.35 disabled But the law constitutionally obliged is not spousal parent to treat and that relationship between child as The equal identical. notion that constitutional ity tort must be judged law sole test plaintiffs rejected harm was this court that a when held in an guest greater automobile could be held to proving guest, the driver than one who is not a or a guest injured analysis in a different in that setting.36 *21 decision on primarily equal protec 1974 was based federal concepts, no more tion recent decision of the United Supreme has been to us a requiring States Court cited as present different result in the case.
VI. Conclusion. recapitulate: complaint To Plaintiff’s claims damages injuries resulting incapacitation for from the of his by defendants’ While negligence. mother some to pleaded consequences plaintiff might be described as economic, his on emphasis this court is the loss of his mother’s and companionship.
34Levy Louisiana, 1509, (1968). US 88 20 L Ed 2d S Ct 436 I, Similarly, question guarantees under § Or Const art which a “remedy by injury person, property, law due course of for done or [to one’s] reputation,” recognized rights, having is not .whether a minor child is to but be as special damages person rights it has as a minor whether child to that an older not have. would Limbocker, Duerst v. 525 P2d might encompassed pleading injury within that
The ineligible proved It is not for to be real and severe. bewell merely damages compensatory pecuniary injury rather is to emotional itself because injury physical interests, such for to economic than to well-being compen- personality and emotional interests present holding The does other contexts. in various sable desirability compensation judge as a of such matter not policy. injury, however, Plaintiffs does not result from negligent a himself as conse treatment of but defendants’ may quence negligent his of their treatment of mother. He reasonably expect to should able show that defendants be they consequential injury a if kind to child caused the this complaint alleges young that the here. to a woman plaintiffs ordinarily negli to is that The obstacle action only liability gives gence obligation legal an as source of rise to a immediately compensate person injured, to consequence anyone predictably who suffers loss in consequential injury, liability person’s unless for that that foreseeability. legal loss has source besides its points general exceptions to to rule in Plaintiff family consequential injury three actions The members: spouse’s child, action for to a action consortium, loss of and the death action for recently expanded parent spouse, child, to entitle society, companionship, for loss a decedent’s analogues imply argument these and services. family consequential within close different rule relationships presented, proved it has has been well perhaps distinguishable persuasive some courts with foregoing precedents. The review and common law statutes Oregon, however, does not of these different actions they cumulated to can be convince us dependent negligent general toward children Finally, parents. the state and we hold that to their *22 preclude different treatment do not federal constitutions injuries represented these claims. Appeals is affirmed. decision of the Court The TANZER, J., concurring.
I generally, concur but add these few words of qualification. majority
The reasons that the anticipated effect of our holding on insurance rates is immaterial to our decision I I agree. and do not wish to understood, however, be as holding that economic realities relevant to assignment of risk are never relevant in making policy judgments as Head, discussed in Ore-Ida Foods v. Indian P2d 469
Also, I am hesitant to create judicially an entitle- ment as unpredictable, formless and limitless compensa- tion of children for psychic losses due to nonfatal parents. their courts, Unlike the legislature has the power only to create not new bases but also appropriate procedures to account for all affected interests. legislature did so with the current wrongful death statutes, for example. Thus, ORS 30.020. I do not neces- sarily reject the Iowa approach; rather I recognize that practical limits sometimes judicial render power an unsuit- able recognition means for the of new recovery. theories of Carson, JJ.,
Campbell join opinion. in this LENT, J., dissenting. C. stated plaintiff
I because I believe has dissent a claim. ORCP 21A. I ultimate facts sufficient constitute desire, however, discus- truly excellent acknowledge opinion parts insofar as majority sion the author Indeed, dispute I find little to I, and III are concerned. II of the 1973 opinion preceding the discussion majority death to the action for amendments legislative It from the act another. is with resulting P2d at 293 Or at opinion, commencing rest of the my diverge from those 330, that I find that views conclusion, my contrary I desire to coming to majority. In majority of the author acknowledge the assistance oral shaping my remarks. Both in conference opinion content, he has been suggestion in written form holding aid I would expressing of invaluable to me reach.
571 majority opinion, legislature As noted in the the family that the recognized 1973 loss the immediate suffers beyond from the death of a member is something above “mere” pecuniary loss and fashioned the measure of recov- Adamski, See also Prauss v. ery accordingly.
23-24, (1952), 244 P2d recog- in which this court had twenty years nized some earlier a like concept: “Furthermore, opinion we are of the the words loss’, ‘pecuniary applied by to the suffered mother, beneficiaries of a deceased wife and mean some- thing money money’s more than the earning actual or worth or contributions of the beneficiaries at death, or before the date of the where there was a reason- expectation pecuniary able benefit from the continuance only of the life. It consists not assistance which of the loss of financial might reasonably the beneficiaries be expected to have received from the deceased had her career defendant, not been shortened the act of but also the things pecuniary worth, loss of other which have a such as the loss of a moral, physical, mother’s care and attention to the children,
and educational welfare of her and a husband’s loss of her services the household.”
The measure of damages legislatively thus recog- nized was apportioned according to each beneficiary’s loss. Clearly, the 1973 legislation reaffirmed and extended lia- bility for ordinary negligence persons whose loss is an “indirect” “secondary” or consequence of immediate injury to another. If such extended, consequential liability were deemed a departure from principle and an anachronistic anomaly in negligence law, the attention given subject provided an occasion to reconsider it. legisla- ture and citizens concerned with tort liability had the opportunity to reexamine whether recovery of damages for wrongful death was properly premised on a tortfeasor’s liability decedent, represented by estate, his for the destruction of the decedent’s own future, economic whether premise was compensation for the consequen- tial losses of his surviving family, or perhaps both.
Neither
the legislature nor witnesses questioned
the propriety of consequential
liability to members of the
family.
fact,
victim’s immediate
legislature
In
extended
liability
nonpecuniary,
include
emotional
losses that
own
way could be a substitute
for the victim’s
in no
opposed
The amendments were
in committee
loss.
economic
the emotional
of lost
testimony
grounds
on
money and that
compensated by
cannot be
companionship
compensation
litigation
would lead to increased
such
costs,
made
very arguments
insurance
higher
court in
accepted by
defendants and
the California
present
Airlines,
Inc.,
563 P2d
v. American
19 Cal 3d
Borer
these
Rptr
rejected
Cal
The legislature
liability
nonpecuniary loss of
objections to
for the
child.
companionship
spouse, parent,
of a
course,
legislature
mean that
Of
this does not
injuries
nonfatal
implicitly
parallel
enacted a
when
*24
stated
initial victim are
losses on the
corresponding
to the
limita-
shows, however,
It
the usual
family members.
in
Foods
negligence liability recognized
tion of
Ore-Ida
Head,
(1981),
not an
The compensating justice of not concern the torts do selective consequential They to all who do not extend as such. genuine in the material or emotional in fact suffer loss of the immediate not even extend history They society. do victim’s every Rather, relative. what close the value that these torts reflects is treatment of specifically continuously long to the been attached has family relationships spouses1 and between married between recovery premise parents in tort was and children. assumptions arising dependency in fact but not emotional relationships, though, specific course, a recov- from these ery depend case. on the facts in the individual would
The barrier that
limits
initially injured
foreseeably injured
prevents
others
and
consequence,
victim
Foods,
in Ore-Ida
as a
govern
the nature of the
therefore does not
here. Nor does
recovery.
compensation
the child seeks
bar
harm for which
As the
majority acknowledges,
recov-
this court has allowed
ery
ordinary negligence for various kinds of
based on
unaccompanied by physical
psychic
harm,
or emotional
legally
injury,
negligent
defendant invaded some
when
protected
plaintiff separate from the infliction of
interest of
a child
emotional
itself. As between
*25
custody
very concept
legal
parent, and its custodial
expresses
imposed
obligations and interests
the set of mutual
protected
in the
The child’s interest
law.2
1
279,
(1925) (no
McTeigh,
See Huard v.
P
common law
113 Or
658
Gonzalez,
393,
App
marriage
Oregon),
Ore-Ida Foods v.
It cannot consequential be said that injury to plaintiff beyond was injuries the class of foreseeable matter of law. This is not a case of toward one many victims, unknown potential such as a collision with a vehicle carrying an driver passenger, unknown liability for unsafe premises, foreseeability business where might be reduced to an issue of mere statistics. Here we only deal liability with in a relationship professional responsibility for the patient, year health of a known a 25 old woman. A factfinder could well conclude that defen- dants should have patient foreseen that such a would be likely to have children, one or indeed more minor if not that defendants knew that she did. The issue of fore- seeability one is on determination the evidence adduced Co., at trial. Stewart v. Plywood Or Jefferson P2d 783 reasons, For these I plaintiff would hold has pleaded a claim under the ordinary liability principles foreseeably resulting from defendants’ negligence. case, parental alleged injury any failure. In this due default on part parent party. is caused but third It cannot be said that such custody change parental rights remedies as or termination of and intervention by public agencies legislative party are substitutes for the of a third who tortiously disrupts parental relationship.