*1 10, 1980; Argued and submitted December resubmitted 22, 9, September in banc June affirmed June reconsideration denied (291 771) petition for review allowed October NORWEST, Appellant, PRESBYTERIAN INTERCOMMUNITY al,
HOSPITAL et Respondents. 17847)
(No. 80-374L, CA
Stanley C. With Intercommunity Hospital. Presbyterian respondent Associates, Giacomini, Jones & was him on brief Falls. Klamath Portland, for Hallmark, the cause argued L.
William Tuttle, the brief D.. him on M. With respondent Kenneth Hallmark, Klein, Wolf, Smith, & Griffith Lang, were Leiberan, Portland. H. Leek Margaret GILLETTE, J.
Roberts, J., dissenting.
GILLETTE, J. Plaintiff, child, for the loss recovery minor seeks and educa- society, companionship, support his mother’s tion negligent as a result of defendants’ treatment damage resulted brain mother. permanent dismiss, theory upon Defendants moved to based Oregon there no loss of cause "parental consortium.” Plaintiff order of appeals resulting from the trial court his failure to state dismissing complaint ultimate facts sufficient to constitute a claim. We affirm.
Plaintiffs he is son complaint alleges Norwest, Shirlene surgery who underwent removal her gall bladder defendant under the hospital surgical care of the defendant alleges doctor. It that defendants were discover or treat condition of negligent failing hypocalcemia which developed Shirlene Norwest which resulted in damage severe brain a lifetime requiring of custodial care. Plaintiff further alleges he has been deprived his mother’s society, companionship, support and education and has obligation incurred an his support *3 mother after her own funds alleges are exhausted. He further hospital defendant is to its estopped deny negligence a because entered in favor judgment already of Shirlene Norwest in an her brought behalf has determined hospital’s negligence.
We are
if
called
to decide
a child
recover
upon
may
from a third
in
party
negligence
whose
results
serious
a
parent
thereby seriously
to
interferes
with
The
of this state
relationship.
courts
have never had occasion to consider whether a child has a
cause of
society,
action for this loss of
or
parental
what
been
However,
termed "parental consortium.”
the question
here is not one of
There can be no doubt that
this
authority.
court has the authority
recognize previously unrecog
See,
nized rights
injury.
e.g.,
or
forms of
recovery
new
Laboratories,
419,
v.
51
Oksenholt
Lederle
Or
P2d
App
625
(1981);
237,
1357
Campbell v.
279
P2d
Carpenter,
Or
566
(1977) (tavern
893
may
owner
liable in
negligence
actions
injured by
caused to third
intoxicated custom
party
er);
Frank,
482,
v.
Hinish Meier and
166 Or
189 Or P2d 445 218 Dames, v. tort); Apitz 205 Or for wilful or malicious (wife (1955) 242, husband against P2d has action 287 585 rather, one of question, is injuries). for intentional follow, we the reasons conclude judicial policy. For will lie. loss of consortium not that an action for parental of the recognition impor- of the history legal those protection and the family relationships tance of least, a has, in at been relationships Oregon primarily Initially, history legislative, judicial, change. not quod consor- per law, only common there existed the action wife, husband; legal tium having in the little more chattel, Oregon action. right status had no such than (with the legal abolished women’s disabilities generally right right of the to vote and the interesting exceptions office) 1880, Laws Act of Or hold the Married Women’s 1880, 1,§ provided, which recognize disabilities impose
"All laws or civil exist- upon imposed recognized are not or as a wife which Provided, hereby ing repealed: as to husband are right upon vote or hold office shall confer the act law; wife, and for provided as otherwise of her except rights she any unjust usurpation property natural right appeal in her name alone shall the same own have the husband equity law or redress that the courts of has.” then, however, spite recognition
Even for loss husband to maintain an action right Co., 85 v. Blake-McFall Elling consortium 91, consistently P courts Oregon Or 166 57 similar recognize law to expand declined to common P Co., & LRy the wife. Kosciolek Portland Co., Ry Oregon Sheard v. Electric (1916); 517, P 132 (1931). changed was P2d the rule Finally, Act was when Married Women’s legislatively read, amended to *4 recognize disabilities laws or civil impose
"All which exist- imposed recognized or upon wife are not a which all civil repealed, and ing hereby the husband are as to conferred husband not heretofore rights belonging to the law, wife, have at common which she does not upon or her, among other including, upon hereby conferred things, right action for loss of consortium of her husband; and for any unjust usurpation property of her rights natural or right civil she shall have the same to in her appeal own name alone to the courts of law or equity Oregon for redress husband has.” Laws ch 228, p 356.
As was true with to respect development of a right consortium, wife’s bring to an action for loss legislative action was a necessary to establish of a (as father) mother to opposed bring to an action for her And, to child. See ORS 30.010. as was true for the parent, so to legislative development key has been the availability actions for benefit of the child.
In
significance
Oregon,
to the child of the
has been
fact
that children now have a cause of action
wrongful
for
death
are,
a parent.
however,
ORS 30.020.1 There
significant
limits to the child’s separate rights, and these limits are the
product
judicial,
legislative,
decision
For
making.
Court,
example,
Supreme
Wahl,
in Burnette v.
284 Or
plaintiff alleged children are and be victims has at- remedy tempted panoply by enacting such situations a vast criminal, procedures, both civil and to ensure proper nurturing, children receive support physi- establish, however, cal It care. has never undertaken to damages cause of action for child any emotional parent’s have been caused refusal to brought 30.020 Pursuant ORS must the decedent’s personal are, representative. spouse of the children decedent 539, 545, 601 parties Epley, the "real in interest.” Christensen v. P2d 1216 (1979). pecuniary That action of the includes loss and * * "loss 30.020(2)(d). society, decedent; companionship and ORS services *5 legislature This
provide services. failure of the to act these recovery this is not a significant because field courts, recognized by and it would has been heretofore remedy provided natural for it have such a therefore be thought problem if it attempts it was wise in view the social statutory the it has en- provisions to solve and ** *” Id., purpose. for that at 710. acted noted, The court further «* * * carefully only not at the [C]ourts must look duty the or but at all particular establishing right statute might directly indirectly or statutes which bear either any legislative purpose. If there is chance that invasion the by the the court’s establishment of civil cause into field scheme, might legislative with the total action interfere it is err on the side of non-intrusion because courts should always possible legislature such civil the establish in omnipotence if it no cause of action desires. Courts have planning the planning, particularly field of social the kind involved here. Courts fields in which in should restraint exercise fairly legislature attempted has com- Id., prehensive regulations.” social at 712. recognizing a certain prominent
Even a decision in a also the role of recognized cause of action judicially for that establishing the basis a child allowing In recognized right. birth, Malli before Court injuries Supreme received 690, 696, 291 P2d quoted son v. Pomeroy, with approval: " law, is common and common law 'Negligence law brought changed up-to-date
has been molded Lancet, 303 many (Citing case.’” Woods v. NY another (1951)). 349, 102 27 ALR2d 1250 NE2d note, the legisla- went on to court then entity child as separate ture had unborn rights and property for the child’s by providing protection In child. conduct directed at the unborn against criminal foundation, the court concluded legislative view of that no reason that unborn child logical there was Id., at tort. protected against injury by should not also be 696-697. es- statutory history and decisional foregoing (1) of a availability the general
tablishes two points: loss of companionship of action for loss of consortium legisla- years through has expanded through been (2) closely analogous tive, under judicial, process; not refused circumstances, Oregon Supreme Court in the scheme legislative create a cause action where history it. We think this already area did not include direct, here: The if it does our conclusion justifies, as sought a cause action such creation of enactment. legislative in this case must await plaintiff Mallison, regard we Supreme Like Court in this area to our legislature’s pertinent involvement instance, demonstrated, *6 already For as the inquiry. own legislature has the interest a child and the of when the dies as a result parent/child parent 30.020(1). of At the wrongful the action of another. ORS however, time, same it is that an apparent providing is parent for the benefit of a child due to of a action a death to legislature, limited decision the as the opposed authority ended from this potentially open sought parent which would allow recoveries even where the was way not We are to the with go killed. not all prepared legal approach legislature, portion where the that government commonly in which such decisions are policy made, to than trip. has chosen make less the entire it,
As we view in legislature’s allowing the decision death actions for the benefit children while wrongful of other is the kind of authorizing kinds of actions precisely policy balancing and interest to this court should which where, defer. We think that this is true as particularly here, in addition to legislature’s acceptance the limited the of children bring to suit where their relationship legis with their has the injury, suffered parents lature has also itself in the area the thoroughly occupied for loss of family by determining availability the of actions See consortium both ORS 108.100. Where spouses. itself in an thoroughly involved legislature area appear area of the law and where its decisions in that boundaries, to be left to discreet we think that it should set boundaries, if are to they to those be change say and to define the new ones. This is not changed, sense in not be the abstract may justice there some It is before us. recovery in cases such the one permitting than however, there are ours say, powers other action establishment causes of which involved in this involved case Oregon question and should be those other powers. submitted to statutory right much of the of a dissent makes includ- parent, for the death of a wrongful recover damages companionship "for loss ing society, * *” * 30.020(2)(d)). (ORS decedent; We services think, however, with problems there are several analogy attempts draw:
(1)
It is not the child who has
for wrong
one
only
ful death
ORS
There is
plaintiff
under
30.020.
action,
wrongful
personal representa
death
and that
tive,
of the surviving
who
the action for
benefit
brings
individuals,
other
children,
spouse, surviving
parents
if
who
of intestate succession would
any,
under
law
of the decedent.
property
entitled
inherit
personal
be awarded are
Among
damages
elements
and services. There
society, companionship
those
loss of
(who,
is,
direct
to the children
inciden
no
award
minors).
judgment,
need
After a settlement or
tally,
not be
the various benefi
among
are apportioned
each
the per
ciaries in a
at which
separate proceeding
as to his or her
sons
entitlement
evidence
claiming
puts
Theoretically,
damage
aggregate
death.
resulting
exceed the amount
by all claimants could
damages proved
*7
lawsuit,
they
case
awarded
in which
principal
basis.
apportioned
percentage
(2)
wrongful
action for
More
an
importantly,
might
"the decedent
may
death
not be maintained
unless
lived,
action,
against
he
have maintained
an
had
act or omission.”
injury
done
same
wrongdoer
30.020(1).
words,
defense the tortfeasor
In other
any
ORS
is
against
the decedent
available
against
has or would have
derivative,
is
not
The action
the personal
representative.
an action for loss of
That
the case in
independent.
not
injury to the
separate
it is an independent,
consortium:
and independ
rise to a separate
spouse
giving
the victim
that
It makes
resulting
injury.
from
ent action for
not
from
could
recover
spouse
that
the victim
no difference
309, 546 P2d
Thompson,
v.
274 Or
the tortfeasor. See Naber
(which
overruling Whang Hong,
(3) The we dissenting opinion suggestion sepa- need not allow each of several children to maintain actions, rate in one they joined but could be require require action. We know of no basis which we could upon such joinder, absent legislation.
Because our conclusion in this case is based upon what we as a perceive long standing pattern legislative area, judicial as not opposed action we are required to consider the other advanced arguments defendant the trial affirming alternative bases for court’s of this disposition case.2 of the trial judgment dismissing is affirmed. plaintiff’s complaint ROBERTS, J., dissenting.
I I dissent because do not with the statement agree in the majority legal "[t]he opinion history recognition of the importance family relationships and least, has, the protection Oregon of those at relationships been a history legislative, judicial, change.” App 856. fam- protected
ily relationships upon by major- the statutes relied (the ORS ity: right bring 30.010 of a mother to an action for (the consortium); loss of ORS 30.010 of a mother (the child); an bring to her and ORS 30.020 right of a child to death of bring wrongful action for bases, might proper The other some or all of which also be a basis for (1) entitlement, i.e., ruling, legal trial court’s are: Lack of since children do not legal right give companionship, parents have the to insist that their them own affection, society incongruous against permit third it would an action parties denying they insist to the children were not entitled to (2) claims, i.e., Wahl, upon. supra. allowing such See Burnette v. Excessive costs of damages sought a concern that the difficult to limit both in terms kind of here are (3) may may sought. they of who seek them and for loss be Practical whose difficulties, e.g., said how severe be to the before must the deprive companionship a child at least the child would have some of *8 enjoyed parent? otherwise with the 862 recognized new has also Court Supreme The parent). are involved. relationships family of action in which
causes (1950) (minor 282, P2d 445 Boock, 218 Cowgill See v. 189 tort); v. Apitz malicious for willful or child sue (1955) (wife has action 242, P2d 585 Dames, Mallison v. injuries); for intentional husband against (a (1955) may sue 291 P2d Pomeroy, 205 Or birth). received before injuries not represent do by majority cited statutes to in Burnette referred kind of scheme statutory which the upon P2d 1105 Wahl, 284 Or here, Supreme as the It be said also relies. cannot majority Burnette, said in Court " * * * that the demonstrate statutory enactments of which deprivations to the legislature put has its mind * * * victim] and has [the be alleged [is] plaintiff attempted enacting a vast by situations remedy such * * criminal civil and both panoply procedures, Wahl, supra, at 710. Burnette v. of this action recognition said that judicial Nor can ”* * * scheme legislative the total interfere with
might * * *.” Id at 712. of Mallison v. analysis majority’s I with the agree a situation presents I this case Pomeroy, and believe supra, recognized an Court Supreme like Mallison before birth. received injuries a child for made certain enact- had legislature court noted that con- injury and subject pre-natal ments regarding should not the court reason cluded that there was no That thé legislature. lines along the established proceed of action cause recognition plaintiffs is what judicial signifi- legislature would do here. The I no reason see cance of the parent-child lines, as those established along should not why proceed we Mallison, cause recognizing plaintiffs was done in action. law common traditionally been law has
Negligence Although action. through judicial has developed stat- negligence to enact has the prerogative from precluded utes, I the courts do not believe that there is law unless of that participating development a com- develop intention legislative a demonstrated area a particular regulate scheme to statutory prehensive *9 scheme which comprehensive There is no such of tort law. ac- plaintiff’s recognizing from court preclude would tion. for the subject proper I this is a
Because believe defendants’ consider, necessary it is to evaluate cause not allow this court should other contentions that the of action. negligence of analysis straightforward
Under
a
held liable
may
that defendants
appears
concepts
An
actions.
from their
resulting
the damages
plaintiff
a
be a
duty
there
for negligence requires
in fact of some
the cause
duty
of that
which was
breach
City
Brennen v.
damage
plaintiff.
legally cognizable
of
(1979).
401, 405,
As to
"* * *
manner of its occurrence
injury and the
plaintiffs
matter of law
say
can
as a
highly unusual that we
was so
pos
man,
inventory might produce would
making that a reasonable
conduct
of harm which his
sibilities
to occur. Stated
injury
reasonably expected
not have
another
the circumstances
question is whether
way,
determine
jury
could
range within which
are out of the
(footnote
reasonably foreseeable.”
injury
was
omitted)
Co., 255 Or
Plywood
Stewart v. Jefferson
(1970).
609-610,
The issue
generally
question
of causation
also
of fact. For
to exist the act of the defendant
legal causation
must be a substantial
factor in
about the
bringing
injury to
413;
plaintiff.
City
Eugene,
Brennen v.
285 Or
(1977).
Campbell v.
It is around the of whether defendants’ question actions resulted in "some legally cognizable damage plaintiff,” Brennen v. that there City Eugene, supra, *10 be some in this case. Plaintiff himself did not controversy receive either physical injury property result of defendants’ alleged negligence. Recovery by plain- tiff depends upon injury plaintiff alleged whether has to the from parent-child relationship resulting defendants’ negligence is a The answer to the legally cognizable injury. question depends development on the historical of part legal and of recognition protection family relationships, and in part policy considerations the costs and regarding difficulties of allowing recovery sought of here. type
Legal of recognition importance family of rela- and of those has tionships protection relationships devel- indicated, and oped changed. As I have both the courts and legislature process. have been active this right Parents also have a of action for currently action, to a originally child. ORS 30.010.1 This father, only was in the arose from the of the conception father as of master with a to the services his children Ward, damages 1 Escobedo v. P2d 698 limited the 464 during minority. recoverable under this the services the child statute to loss of of was, however, wrongful This limitation death statute which at the based on damages pecuniary continuing time of the loss.” The decision limited to "actual validity wrongful question of that limitation now be in since the death society, companionship recovery statute has been amended to allow for "loss of the ** decedent; and services of the *.” ORS 30.020. Pros- for of consortium. action loss original much like 1971). (4th legal As the ser, § ed of Torts Law action devel- recognition gained existence of wife by parents. both brought into one which could be oped has of children come legal in the status change women, many with of even more than that slowly sig- recently.2 being recognized only of minors rights has to the child of the parent-child nificance have a cause children now been in the fact that under ORS wrongful for the death of loss That damages pecuniary 30.020.3 action includes services and society, companionship and "loss * * 30.020(2)(d). decedent; *.” ORS Wahl, v. Although the Court Burnette Supreme their supra, against disallowed a tort action children of the failure mothers incurred because care, companionship, nurture and provide parental "* * * a strong indicated noted nurturing, kind policy parental state requiring and care which the defendants support physical of children alleged here are to have denied their children.” 712.4 The of Justice Lent concurring dissenting opinion recogni- increasing in Burnette makes note of the special rela- tion experts importance and the can be done when tionship damage relationshp destroyed. addition,
In noted in custody pro- court has love, to the compan- "[c]hildren are entitled ceedings guidance of their Warren parents.” both ionship 2See, District, Community e.g., Independent School Tinker v. Des Moines *11 733, Gualt, 1, 1428, 503, (1969); 87 S U.S. S Ct 21L Ed 2d In re 387 US Ct 89 731 49, 1209, Colorado, (1967); Gallegos 8 Ed 2d L Ed 2d v. US 82 S Ct L 18 527 370 1068, (1970); (1962); 358, Winship, L 2d Goss In Re US 90 S Ct 25 Ed 368 325 397 565, 729, 42 (1975); Lopez, v. 419 US S Ct L Ed 2d 725 Planned Parenthood 95 (1976); 52, 2831, Carey Danforth, Ed 2d v. Missouri 428 US S Ct 49 L 788 v. 96 International, 678, 2010, Population Ct L Ed 2d 675 US 97 S 52 Services 431 (1977). 3 brought by the decedent’s Pursuant to ORS 30.020 the action must be are, spouse personal representative. The and children of decedent 539, Epley, 1216 parties 545 601 P2d the "real in interest.” v. 287 Christensen (1979).
4 Wahl, 709, supra See v. n.5. Burnette 866 (1974); App
Warren,
671, 674,
19 Or
Despite
plaintiffs
the fact that
cause of action
appear, analytically,
type
allowable,
would
to be
yet.
acceptance
claim has not received much
as of
Of the
jurisdictions
question, by
which have considered the
far the
majority
rejected
have
the child’s cause of action for loss of
parental society.5
recently
Two states have
allowed
Michigan Berger
action,
Weber,
1,
411
however:
v.
Mich
424,
303 NW 2d
and Massachusetts in Ferriter v.
Sons, Inc.,_Mass_,
Daniel O’Connell’s
690
413 NE2d
(1980).6
Although
recognized the
courts have
conceded nat-
justice
parental society7
ural
of a
child’s claim for loss
commentary favoring
and have been aware of the extensive
generally
claims,8
such
the claims
been
have
denied. Sev-
arguments
accepted by
eral
have been
the various courts
policy.
all be
summarized
one word:
5See, e.g.,
Airlines, Inc.,
441, 138
302,
Rptr
v.
Borer American
19 Cal 3d
Cal
(Fla
(1977);
Inc.,
Hospital,
App
P2d
563
858
Clark v. Suncoast
338 So 2d 1117
Ct
(Iowa
1976);
1973);
Bush,
Derby,
v.
2d
Hankins
I in this state do not it is that children Although true them legal parents give that their have require whose loss is and affection companionship, society Wahl, see, supra, Burnette v. wrongful here, stake recovery by for children provide death statute does of a ORS parent. the death precisely those is a 30.020. One of the there reluctance reasons failure provide allow children to sue their parents is interference rela- parental society family concern for is in a cause of action tionships, present but not negligent which third is with party charged has parent-child legislature The relationship. is parental
that a child has an expectation society wrongful if the is killed a result protected parent action of another. is also appropriately That expectation injured so parent severely when is protected interfered with even parent-child seriously is parent if the remains alive. n is on the argument
The based majority decision is better left to creation of this of action type why I legislature already than to the have discussed courts. I mistaken. majority believe easy appreciate compensate "It is this reluctance to to understand and care, deprived companionship and education of the child who has been mother, father, negligence. through the his or for that his defendant’s matter * * one, Prosser, surely genuine injury, of Torts This is and a serious Law (4th 1971). § 896-97 ed Love, Relationship, LJ 590 Parent-Child 51 Ind See Tortious Interference with the Love, (1976); Note, Right a Parent’s Care and The Child’s to Sue Loss of Parent, (1976); Injury Companionship 56 BUL Rev Caused Tortious Comment, Damages, Diego L 73 San Claim for Loss of Consortium Child’s (1975). Inc., Sons, supra, 413 NE2d Rev 231 See also Ferriter v. Daniel O’Connell’s n 11. at 695 recognized the interest the relationship when the dies as the result of the wrongful I of another. see why no reason child’s interest the parent-child relationship should not pro- tected when the parent is seriously injured by wrongful action of another.
Ill *13 The next of group arguments concerns the costs it is will suggested be incurred by allowing of type action. This includes judicial increased costs suggested by of possibility multiple suits numerous by plaintiffs, not only injured numerous children of an parent but also other more family distant members even "friends and neigh- making bors” claims for loss of and society companionship. It also involves the issue how will of the line be drawn as far as the extent injury of to the for which parent recovery will be allowed. Finally, argument is made that allow- ing this type action would result in excessive damages being assessed a against defendant and would cause an in increase insurance costs which will be on passed to a society as whole. recover,
As to the who can question my analysis of whether there has been an a legally cognizable would interest confine parental this action to the loss of society. parent-child is of im- particular portance and recognized. persons has been so Other would have a much time establishing more difficult kind of legally recovery in protected justifies interest relationship.
We are not here the situation of presented with many suing children If there is parental society. loss more than one child of an injured their actions parent, should joined believe, be if at all I do not possible. fact damaged that more than one is a person
defendant’s should that defendant of negligence relieve if liability this situation more than the defendant any ran into a bus.9 negligently school 9 point, Michigan approval following On this cited lan with guage Appeals its from Court of decision: rights forthrightly plaintiffs judged "[T]he be of a new class of tort should merits, gloomy speculation engaging on own their rather than as to where (Citation omitted.) 199, 210, App it will end. Mich NW2d 124.” all 267 Berger Weber, supra, 303 NW2d 426. litigation is
The issue
increased
also raised
justify
question
type
parent
what
will
society.
recovery
parental
child’s
for loss of
Although
problems may
certain
definitional
encoun
appear
impact
tered, it would
measurable
to have a
parent-child relationship
so as
interfere with the
normally given,
companionship, society
in
and education
jury
would have to be of
serious nature. We
presented
and I
not now
with a close case
will not
attempt to draw the
that would have been drawn over
lines
Supreme
time,
that,
but note
as the
Court
Hinish v.
Co.,
&
482, 113
Meier
P2d
Frank
recognized
stated
privacy:
when it
for invasion of
a legal principle
pushed
absurdity,
"[W]hen
to an
abandoned,
principle is not
absurdity
but the
avoided. The
think,
competent,
courts are
with the
we
to deal
difficulties
case,
suggested,
through
of the sort
the tradi-
case
process
exclusion,
tional
gradually
of inclusion and
develop the fullness
principle
its limitations.”
because of the increased defendants is *14 speculative too to be the basis for a decision as to whether the defendants should I be held liable here. it is believe unlikely that courts will be with flooded claims for loss of parental society, any they more than are flooded with spousal for claims loss of consortium.
IV group arguments sup- The fourth submitted in port of the contention that a cause of action for loss parental society recognized should not I be involve what dissenting Airlines, Inc., opinion Justice Mosk in his in v. American Borer supra "floodgates” argument at reacted the to as follows: agree drawn], T [a I line must be but cannot subscribe the to majority’s argument determining proper place ad terrorem for the to draw majority liability only such a spectre line. The not raise the the victim’s spouse cousins, parade but also to a of This his Gilbert and Sullivan sisters and by dozens,’ up possibility whom he reckons then dismiss that with the unimpeachable suggesting observation that one is the be no latter compensated. implication lingers, that such will demands rights become irresistible if the children are in the the victim’s * * * case], might at [another case bar. we That As summarized in law ** * urged moving unacceptable be to move far for too is an excuse not all.’” problems practical problems. These concern have termed damages related. In- claimed and are all somewhat questions of whether cluded are susceptible relationship of recom- incurred assessing money difficulty pense damages; damages; in such recovery problem potential in double and the allowing damages parent for the the child and the them. between injuries problem suffered are of whether problem money damages compensable of as- and the present sessing damages appear to the same such would they do in other situations difficulties in this situation as non-monetary monetary damages sought are Michigan As stated: loss. [v. reject argument in Borer Ameri- majority’s
"We Airlines, child’s loss is intan- because a supra] can This is more gible, money damages inadequate. general legal remedies in inadequacy on the comment Money denying recovery to child. than a valid reason for is blinded nor can purchase eyesight cannot for one who pain and suffer- truly compensate intangibles such as fully cannot be say To that a child ing or the loss of life. justify ignoring his loss compensated for or her does Weber, NW2d at 128-29. altogether.” Berger v. the loss recovery, As about double to the concern spousal problem consortium, exists in an action same significant apparently has, without confronted been difficulty. problems arise from I that would believe that the agree I with the this situation are not insurmountable. problems Berger supra, Weber, that the could court handled the joinder of action with that of the child’s cause jury by appropriate parent, instructions.10 adopt suggestion defendants I decline inevitably juries the child’s loss determin- consider ing It is entitled. is true to which jury sophisticated expect distinc- make that we often system jury is based on the fine lines. Our tions and draw *15 making juries capable distinctions those are belief that plaintiffs has in which mother presented here with a situation We jury injuries. Appropriate in the trial already instructions for her recovered however, damages used, prevent award plaintiffs action could be overlaps by plaintiffs mother. that received drawing proper those lines under instruction from the type It court. is clear in this of case that injury suffered a real and that that is distinct from parent. note, suffered I do plaintiff damages support. here seeks for loss As a pecuniary appears plaintiff’s matter of loss, mother ability have recovered loss her support earn an income and her To the child. extent that family she unit, has recovered for economic loss to the I plaintiff would hold that here should allowed Transpor- recover loss well. See Russell Salem supra. Co., taion any suggested policy
In I sum do not find disallowing persuasive bases for this cause of action to be plaintiff’s complaint and would hold that states cause action. join
Thornton, Warden, J., J. and in this dissent.