*1 H3 ROBERTS, Petitioner, Dr. Karen Casey WILLIAMSON, indi
Lainie and
vidually and as next friends of Court Williamson, Respondents.
nie Roberts, Petitioner,
Dr. Karen Casey Williamson,
Lainie and individ
ually and as next friend of Court- Williamson, Respondents.
nie 01-0765,
Nos. 01-0766.
Supreme Court of Texas.
Argued April 2002. July
Decided *2 Galloway, Mary Olga Fergu- Lee
Robert Bass, Thompson son and Richard & W. Houston, Knight, for Petitioner. Nichols, Jr., Nichols, Rex A. Rex A. Nichols, Longview, Nichols & Karen De- P.C., Bishop, Bishop Bishop, biasse & Gil- mer, Respondent.
Chief Justice PHILLIPS delivered the Court, joined by opinion of the Justice HECHT, ENOCH, OWEN, Justice Justice SMITH and Justice Justice WAINWRIGHT, joined by Justice O’NEILL, JEFFERSON, and Justice except Justice SCHNEIDER all Parts Part II.
In
involving
these consolidated cases
malprac-
two
in a medical
separate appeals
action,
tice
we must decide an issue of first
recognizes
Texas
impression: whether
for a
common law cause of action
resulting
from a non-
of consortium
addition,
fatal
to a child.
appeals
the court of
consider whether
affirming
erred in
the trial court’s decision
or in
expert
testimony
to admit certain
to reduce
failing
apply prior settlements
also consider
award. We
erred
re-
appeals
whether the court
H5
later,
consulting with a neona-
after
the ad
hours
allocation of
versing the trial court’s
¡item’s
Dr.
fol-
Shreveport,
Roberts
tologist
In one
parties.
fee between
advice,
began to
and Courtnie
lowed this
concluded
appeals
the court of
opinion,
thereafter,
long
Courtnie
improve. Not
recognizes parent’s
that the common law
*3
Schumpert Medical
transported to
was
of filial consortium
claim for loss
a
now has
Shreveport.
in
Courtnie
Center
admitting
erred in
trial court had not
to
in her skull
implanted
permanent shunt
refusing
in
to
testimony or
expert
certain
She suffers
fluids to her abdomen.
drain
calculating
credit when
apply a settlement
side, requires braces
left
from a weakened
of re-
percentage
physician’s
the defendant
walk,
scarring, and is
significant
to
sepa-
In a
interests. I the hos- against The claims Williamsons’ birth, day Fowler, The after her Courtnie Wil- treating physician Dr. and a pital, acido- began suffering liamson from severe as a defendant were who was not named sis, a with a number of serious $468,750. condition The claims settled damage to the complications, including proceeded and Dr. Miller Dr. Roberts Fowler, the Roger McGehee, heart and brain. Dr. trial, a At Dr. Frank trial. Rob- attending physician, called Dr. Karen testified pediatrician, board-certified erts, only consulting pediatrician at delaying negligent Dr. Roberts was Hospital Kilgore, Tex- Laird Memorial hospital equipped transfer to Courtnie’s as, and advised her that Courtnie was in failing to treat her condition arrived distress. Dr. Roberts respiratory bicarbonate sooner. administer sodium Longview approximately forty-five Roberts’ testified that Dr. Dr. McGehee treating began minutes later and Courtnie. Courtnie to proximately caused negligence thereafter, retardation, Dr. Roberts and Dr. Shortly anti-social from mental suffer pediatric on a ven- placed behavior, Fowler Courtnie hemiplegia, partial paraly- functioning The ventilator was not tilator. body caused sis of one side of however, did not and Courtnie properly, to the brain. minutes. for several oxygen
receive needed responsibility jury apportioned percent injuries as follows: arriv- Courtnie’s one hour after Dr. Roberts’ About Dr. settling parties, percent al, bi- colleague suggested that sodium Roberts, to Dr. Miller. percent and zero coun- be administered to carbonate should $3,010,001 damages, jury Two The awarded worsening acidosis. teract Courtnie’s $75,000 including past expert, medical who is not neurologist, loss of filial consortium and one dollar for qualified nevertheless testify about the future loss thereof. The trial court ren- cause and effect of a neurological verdict, judgment dered on the ordering (3) injuries; defendant, whether a who is $451,500.15, Dr. pay per- Roberts to or 15 jointly liable, severally is entitled award, cent of the entire with no deduction to a settlement applica- credit before the for the settlements. The trial court also tion of her percentage responsibility; $21,405.69, awarded the ad litem1 a fee of (4) whether there is of good evidence which it equally divided between Dr. Rob- prevailing cause sufficient to tax the party erts and the Williamsons. part of the ad litem’s fee as costs.
Dr. Roberts and the Williamsons filed
separate appeals. Dr.
urged
Roberts
II
(1)
permit
parent
Texas law does not
a
463,
Reagan
In
v. Vaughn, 804 S.W.2d
recover for loss of consortium for non-fatal
(Tex.1990),
468
we held that a child is
(2)
injuries
child,
to a
Dr. McGehee was
entitled to seek
of con-
qualified
not
testify
as an
expert
serious,
sortium
parent
when a
suffers a
cause
neurological
and effect of Courtnie’s
permanent,
disabling injury.
equ-
We
(3)
injuries,
supported
ho evidence
ated
parent
the child’s
to the
jury’s
past
award of
and future medical
another,
to that of one spouse to
a relation-
(4)
expenses, and
the trial
court erred
ship
previously recog-
for which we had
not applying a settlement credit before
nized consortium rights.
Id. at 465-66
apportioning damages. The Williamsons
Miller,
(citing Whittlesey v.
complained only
having
about
been taxed
665,
(Tex.1978)).
667-68
We further noted
with one-half of the ad litem’s fee. The
the vulnerable and
dependent role
appeals rejected
court of
Dr.
ap-
Roberts’
child in this relationship
profound
and the
peal and affirmed the trial court’s award of
harm that might befall a child who has
damages against her.
H7 relationship of a in the perhaps, except, Dr. at 352. protection. S.W.Bd same parents. not his or her Reagan does minor child to counters that Roberts far, to a child and that the loss extend so is injury parent to the
caused a serious parent from that to a uniquely different customarily enjoy Although parents seriously injured child. children, in the of their the consortium previously not considered have We does of events ordinary course loss of have a claim for whether companionship, on a child’s depend cases, but in non-fatal nurture in love, support, guidance, assumed that appeals some courts of degree way and to the same the same Ele Schindler such a claim is viable. See wife, a on his depends husband Anderson, Corp, v. vator husband, a minor her depends wife (Tex.App.-Houston Dist.] [14th on his or depends adult child or disabled Brown, filed); Enochs pet. course, it true that parent. her Of writ); no (Tex.App.-Austin particu- in a may exist dependency such Lee, Hosp., Inc. v. Parkway see also situation, it is not intrinsic lar but (Tex.App.-Houston [14th *5 as is a minor relationship denied). 1997, recognize writ We Dist.] dependency on his or her and, surface, logical on the sympathetic the spouse’s dependency and as is each extending rights consortium appeal to spouse. the other as children. But several parents as well Norman, at 140-41. 529 N.E.2d right a child’s recognized that have states has also Wyoming Supreme Court par- denied the to loss of consortium have to consortium rejected parent’s right including two of any reciprocal right, ents the child’s recognizing while recognize the first states the nation to rejecting par- years after right. Some v. Mass. right. the child’s See Norman v. consortium Gates claim for ent’s 303, Auth., 403 Mass. 529 Bay Transp. Richardson, 193, (Wyo.1986), 201 719 P.2d (1988);2 139, v. 141 — 42 Sizemore N.E.2d Court concluded Wyoming Supreme Smock, 666, 283, 422 Mich. N.W.2d 430 relationship in the the child’s interest (1988).3 have con 667-74 These courts protec- deserve different it did was so the child’s interest deserves cluded tion: the child’s greater protection because of requires minor child par society on the In
singular dependency emotional our nurturing, guidance, Supreme parent’s The Massachusetts Court her ents. his or uniquely in Norman as The child is supervision. this distinction explained his or parent upon follows: dependent socialization, pro- that maturation her ordinary things course of In the into infant helpless which turns a cess on one another spouses of dependence responsible productive, independent, an found to the support for love being opportunity has human who in no other degree same 1, Weber, Sons, Inc., N.W.2d Berger 411 Mich. 303 381 2. Ferriterv. Daniel O’Connell’s 507, (1980) (child’s (child’s recog- (1981) 690 consortium Mass. 413 N.E.2d 424 parent right recognized). nized). A statutory presently claim has a Massachusetts ch. loss of consortium. See Mass. Gen. Laws Methuen, 85X; 231, § v. Town Monahan 951, (1990). 381, 558 N.E.2d 956 408 Mass. valuable, the New York ex- contributing Appeals be a member Court has society. question, plained: “Every injury ramifying our Without has con- waters, parent sequences, ripplings child’s relational interest with the like the of the dependence. problem is characterized con- without end. The for the law is trast, legal to limit parent’s consequences wrongs relational interest sense, with the child is not. In a to a degree.” real controllable Tobin v. Gross man, 609, “becoming” child is and the N.Y.2d N.Y.S.2d (1969). Thus, parent’s “has become.” loss N.E.2d Consequently, injured ordinarily of an child’s consortium is differ- law denies recourse those act, ent in directly injured by negligent kind the child’s loss of an but injured parent’s indirectly by consortium. in whose is caused Viewed light, recog- our refusal in harm to another. exceptions Gates There are rule, inapposite general including nize the claim is to this claims for loss legal problem whether we But exceptions consortium. all these Thus, the child’s claim. narrowly have been cabined. while recognized spouses we have and chil Gillette-Campbell County Nulle v. Joint consortium, dren can recover loss of Bd., Powers Fire siblings have concluded that and step-par- (Wyo.1990). Supreme The Vermont Court Compare Whittlesey, ents cannot. similarly recognized that the “child is consortium), (spousal at 667-68 uniquely position up difficult to make (parental Hay for the of a parent.” Med. Ctr. consortium) Miles, with Ford Motor Co. v. Hosp. of Vt., 145 496 A.2d Vt. (Tex.1998) (reject- 383-84 (1985). explained: It *6 siblings step- consortium claim for capable seeking "While“an adult is of out parent). new in an to fill in relationships attempt loss, may the void of his or her child of recognizing When new cause virtually helpless seeking be in out a accompanying expansion action and the Therefore, companion. new adult com- duty, perform something we must akin to a pensation through may the courts be the analysis cost-benefit to assure that only reducing child’s method of his or See, expansion liability justified. e.g., society her of the deprivation (Tex. W.C.W., Bird v. companionship.” 1994). The of our purposes fundamental Kenosha, City Id. Theama v. (quoting conduct, system tort are to deter Wis.2d N.W.2d fair responsible parties, shift losses to (1984)). ly compensate deserving victims. While agree recognition layer We with these courts that the the of an additional reciprocal clearly is not to the the parent-child relationship liability parent shifts loss, like husband and wife and that the child is it is not at all clear that this addition party relationship the to the needs al corre layer liability produce who will protection. sponding concede that seri- benefits of deterrence or fair special We clear, however, it injury compensation. ous to a child will have emotional It is law, uncertainty consequences parents. for the Tort will foster further and widen however, among in simi remedy every wrong. divergence cannot the recoveries larly gener Courts have public policy requires Sound end at situated victims. point consequential damages ally willing some to the been to tolerate more uncer in single negligent tainty that flow from a act. As the calculation of when
H9
conclud-
jury apparently
impairment.
tort
primary
the
necessary
compensate
losses
intangible
the
pain
anguish
That
and mental
ed
while
victim.
time,
im-
money
continuing
her
valuation or that
defy objective
grow
would
for cata
poor palliative
substantial effect
damages are
have no
would
pairment
denial of
justify
do not
strophic
in the fu-
remedy to a victim who has
monetary
hearing the same
jury after
ture. Another
injured.
once courts
severely
But
been
very
reached a
might well have
evidence
vic
fairly compensated
primary
have
different conclusion.
tim,
about
they
be more troubled
should
intangible
measuring
in
the difficulties
willing to let
we were
victims.
secondary
losses to
difficulties
through
sort
these
system
importance
social
perceived
because of
The case before us demonstrates
More
the child’s interests.
protecting
fact-finder when
in
challenges presented to a
“
over,
‘limiting the
damages. The Wil-
awarding consortium
we concluded
negli-
that the defendant’s
to the
liamsons assert
consortium action
plaintiffs
”
daughter
caused their
sustain
gence
toway
a rational
victim’s children’ was
damage, particularly
brain
to the
massive
loss
validity
intangible
of these
ensure the
brain,
resulting
perma-
of her
side
Miles,
(quoting
at 384
es.
neu-
progressive
nent and in all likelihood
466).
That ratio
Reagan, 804 S.W.2d
They
rological
problems.
and behavioral
however,
nale,
when we ex
breaks down
daughter
has and will
submit
parents.
Because
rights
tend such
difficulty controlling
to have
her
continue
role than that
dependent
has a less
likely suffer from some
emotions and will
relationship, extending
of the child
injuries,
degree of retardation. Her
how-
logically lead
rights here could
ever,
expectan-
have not shortened her life
rights
of such
other
recognition
trial,
cy. At the time of
the child was
or even in close
non-dependent relatives
evidence,
jury
years
three
old. On this
friends,
facts. See Nor
given appropriate
concluded that the value of the “harm to man,
But,
every
at 141.
like
529 N.E.2d
parent-child relationship”4 during
jurisdiction,
already
con
other
*7
years
relationship
first three
of the
was
consortium should not be ex
cluded that
$75,000,
future harm to the relation-
while
Miles,
See
to this extent.
panded
only a
ship
years
over several score
was
to
therefore decline
383-84. We
S.W.2d at
injury
personal
dollar. As for the child’s
consortium to
a claim for loss of
extend
awarded,
claim,
jury
among
the
other dam-
children who have been serious
parents of
$100,000
pain
for
mental
ages,
past
ly injured.
$35,000
impair-
anguish,
past physical
for
to
may argue that our refusal
ment, $750,000
Some
pain
future
and mental
for
parents
to
cre-
$300,000
rights
extend consortium
physical
for future
anguish, and
added).
relationship.” (emphasis
The
money
jury question
child
asked what sum of
The
reasonably compensate
object
the
fairly and
did not
to the instruction’s
would
defendant
harm,
any,
parent-
if
to the
"for
the child’s
apparent
inclusion of
erroneous
claim,
as a result of the occur-
child
although the de-
parental consortium
jury
question?”
was further
rences in
object
the issue on other
did
to
fendant
re-
instructed "that 'harm
i.e.,
predicate
grounds,
failure to include a
its
right
lationship’
damage to
both
means
serious,
injury to the child must be
that the
affection,
com-
parents and their child to
parent may
disabling
permanent, and
before
assistance,
fort,
society,
companionship,
emo-
recover filial consortium.
necessary
parent-
support, and love
to a
tional
to
paradox
permit parents
right
anguish damages
ates a
because we
recover mental
family
in
damages wrong-
to recover consortium
when
member survives. See
Schindler,
Keith,
ful death cases. See Sanchez v.
United Servs. Auto. Ass’n v.
(Tex.1983)
(Tex.1998)
curiam)
(abolishing
(per
541-42
rule).
Thus,
pecuniary
(bystander recovery).
loss
But there are rea-
whether or
for
to recognize
right
sons
distinction. Before abolition
not we were
to filial
rule,
case,
pecuniary
wrongful
loss
death
consortium in this
differences
ordinarily
pecuni-
intangible damages
wrongful
of a child did not
create
award of
ary consequences
negligent
for the
tortfea-
and personal
persist.
death
would
(op.
sor because the child was of little mone- See
489-90
J.,
tary
family.
value to the
this
Abolishing
rehearing) (Doggett,
concurring and
permitting
“[Recovery
dissenting)
rule and
for loss
(urging
family
close
mem-
society
of affection and
in a
seriously injured person
death
bers of a
should
action thus
a deeply
fulfills
felt social belief
anguish).
also recover for mental
negligently
that a
who
kills
tortfeasor
no compelling
We conclude that
social
liability
not escape
someone should
com-
impels
recognize
us to
policy
pletely, no matter
unproductive
how
his
of filial
con-
Airlines, Inc.,
victim.” Borer v. Am.
And,
balance,
sortium.
we believe that
Cal.Rptr.
Cal.3d
by
the common law is best served
(1977).
But
the child
when
sur
Accordingly,
we reach here.
result
vives,
here,
as
so does the
own
holding
sug-
of those
disapprove
cases
cause
action
the tortfeasor.
contrary.
gesting
See Schindler
if
primary
And
victim of the accident
Corp.,
Elevator
at 414 (approv-
action,
may bring an
there is no need to
consortium); Enochs,
ing
of filial
award
family
actions
other
members
(recognizing parent’s
IV percentage damages by found that, Dr. Roberts next asserts trier equal of fact that defen- her, damages calculating percentage responsibility dant’s trial properly apply court failed respect personal injury, $468,750 settlement credit. She maintains death, property damage, or other the trial court should have reduced harm for which the are al- damages jury’s damage award6 with this credit lowed. multiplying by before that number her 33.012(a), by §§ & proportionate responsibility found Tex. Civ. PRAC. Rem.Code 33.013(a). words, (b)(1), jury. In other Dr. Roberts Section 33.012 refers to judgment against contends that her “the amount of to be recovered (15% $369,937.50 $2,466,250) claimant”, x should be while section 33.013 re- $440,250. reduction, “damages rather than This fers to found the trier of she consortium, jury totaling awarded for loss of filial claim $75,001 $3,010,001, $75,001 which included for loss jury’s we have deducted from the keeping verdict, $2,935,000. of filial consortium. with our yielding the sum of does not conclusion that common law *10 Dr. liabili- Because Roberts’ be Dr. Roberts. damages The “amount of fact.” Id. limit $440,250, section not exceed the by ty the claimant” under for does recovered claimant’s by damages be reduced the Wil- 33.012 must amount of placed on the by 33.012, settle- responsibility and proportionate under section may recover liamsons reduction is corresponding ments. No required.7 is no further credit because under section 33.013 prescribed fact” by found the trier of “damages V or the by are not affected settlement challenges Roberts Finally, Dr. Thus, responsibility. claimant’s shared assessing all judgment appeals’ court of under these two sections are damages costs her. She guardian ad litem claimant has not set- only same when the that, because the Williamsons contends And responsibility. and shares no tled Dr. party (against a successful were both related, pose the two sections although Roberts) Dr. losing party (against controls separate inquiries. Section 33.012 Miller), properly appor- trial court recovery, claimant’s total while section them. the ad litem costs between tioned governs separate the defendant’s 33.013
liability. approved an ad litem fee The court 33.012, $21,405.69 between equally section and divided it
Under Williamsons’ recovery, including amounts received At the total Dr. Roberts and the Williamsons. settlement, $2,935,000, is limited to so hearing judgment, rendition of $2,466,250 than they can receive no more court stated: ($2,935,000 $468,750) in satisfaction of — is attorney I ad litem there think that limit, however, in- judgment.
this This is are parties of all the for the benefit of section 33.013’slimitation on dependent to, this to be there. I would like re- particular percentage defendant’s costs, and I would like as court assessed 33.013(a) sponsibility. specifi- And section the Plaintiffs split it to be between who, like Dr. cally pertains defendants par- the Defendant in that and between here, severally are jointly Roberts think, it way, I regard. ticular And provides liable. That section that a sever- more fair to all would be a little bit ally-liable monetary liability defendant’s IAnd don’t parties that are concerned. by multiplying damages calculated because there was a verdict simply think by by found the trier of fact the defen- individual, that he against an returned percentage responsibility. dant’s See C looking it all. at a situation pays We’re Nationwide, Thompson, H Inc. v. & that it would be where the Court feels (Tex.1994) (“Section 315, 321 of the child for the best interest 33.013(a) claimant liability sets the And, there- appointed. to be individual at an [severally of each defendant liable] fore, that, a result of it should be percent- equal amount to that defendant’s cost, and to be borne assessed as a court responsibility multiplied by age Roberts], and one half by one half [Dr. fact.”). The found the trier of by [the Williamsons]. multiplied it trial court did this when the trial appeals court of reversed damage per award the 15 cent jury’s that, holding because responsibility assigned judgment, it to court’s proportionate Thus, required. negotiated would have been a more fa- credit 7. Had the Williamsons settlement, reducing incidentally 33.012’s from a may section benefit vorable defendant propor- Dr. Roberts limit on below settlement with others. claimant’s favorable 33.013, a further share under section tionate *11 parties, fragile Williamsons were the successful to bear them. We concluded that “the required by trial court was Rule paying emotional distress at costs was not good to state cause on the record for as- Here, good cause under Rule 141. Id. sessing against costs them.” 52 S.W.3d at trial finding good prem- court’s cause is cause, no Finding good the court of perception ised on the that the prevailing appeals concluded that the trial court had party incidentally benefitted agree. abused its discretion. Id. We guardian ad litem’s services. Assuming that such an might incidental benefit pro- Texas Rule of Civil Procedure 131 cause, particular provide good case Rule party vides that successful to a suit “[t]he requires still the trial court state adversary shall recover of his all costs reasons “on its the record” and with more therein, except incurred where otherwise specificity than the notion general court’s provided.” Tex.R. Civ. P. 131. Rule 141 of fairness here. P. 141. court, permits good a trial cause stated Tex.R. Civ. fairness, perceived Grounds of without record, “adjudge on the the costs other- more, good are insufficient to constitute provided by wise than as law or [the Rules Inc., Supermarkets, cause. See Furr’s of Civil Tex.R. Civ. P. 141. Procedure].” Thus, S.W.3d at 377-78. responsibility it was the trial court’s good to state on the record cause for tax- part of the court against costs
Williamsons, party. the successful Id. part We reverse that of the court of
The trial court its explain did rea appeals’ judgment affirming the award of splitting sons for It costs. observed that damages for loss of filial consortium and an ad because litem is there for the benefit judgment render that the Williamsons take parties, split of all it is “fair” to costs nothing judgments as to this claim. The losing parties. between the prevailing of the court of appeals are otherwise af- litem, however, A guardian ad does not firmed.
serve for the benefit of all parties; guardian appointed protect is the child’s JEFFERSON, joined by Justice Justice interests. See Am. Gen. Fire & Cas. Co. SCHNEIDER, O’NEILL and Justice filed Vandewater, 907 S.W.2d 493 n. II Opinion. dissent to Part of the Court’s (Tex.1995). Certainly, fairness can be JEFFERSON, joined Justice Justice cause, good but the record must substanti SCHNEIDER, O’NEILL and Justice ate the connection. dissenting only. to Part II example, Rog For we concluded Schindler, In con- Sanchez v. this Court Stores, Inc., ers v. Walmart 686 S.W.2d that the common is best cluded law served (Tex.1985), that the trial court had by permitting parent “to recover dam- good assessing demonstrated cause when ages society companionship part of the ad litem pre costs ... for the death of his or her child.” 651 vailing party because the conduct of that (Tex.1983). Reagan In party unnecessarily had prolonged ob Vaughn, this Court held that common Supermar structed the trial. Furr’s Bethune, kets, supports law a child’s Inc. v.
(Tex.2001), however, when a for loss we reversed the low injured but not killed the tortious act of prevail er courts’ determination that the (Tex. a third ing party party. should bear its own costs be 1990). cases, losing party emotionally cause the was too These and others outlined *12 rule, it below, never- change the the common-law explain why grudgingly Court a adopt change, to to such logic” a “surface theless declined acknowledges extend- majority the rule ing opting to instead to “follow rights parents consortium whose might a severely injured. legislation children Ill until such effect are time as then, Garrett, loss, at change.” at 119. I a to 766-67. am at understand why today the concludes that Court This court’s Court criticized Garrett common holding law is best served that recognize for a wife’s refusing decision to rights. no such Id. consortium, calling it claim for loss “an of The is to our contrary Court’s conclusion judicial responsibility”: of abdication counter to ma- longstanding precedent, a Providing spouse either with cause of jority of jurisdictions that have considered action for of consortium would allow loss issue, unduly and tolerant of the society by modern keep pace us to anomaly it creates in the law. And the recognizing the emotional interests underlying theme the Court’s decision— are as marriage of wor- that a loss of consortium claim thy protection negligent of invasion rejected must be require because adults legally protected as are other interests. protection less than little children —makes Miller, Whittlesey v. sense in of our light repeated declarations (Tex.1978). reasoning, Based on this we parents may recover consortium dam- spouse held that has a cause of “either children, ages the death of their and might action for of consortium that loss adult children are entitled to consortium a injury arise as result of an caused of, damages injury for the death or serious spouse by party other a third tortfeasor’s to, Because the parents. Court’s decision, noted, negligence.” we Id. Our creates, opinion but does not adequately of brought majority Texas in line with law, justify, a prominent paradox Texas “a jurisdictions paradox corrected and I respectfully dissent. Id. law.”
I
Extending
B.
Law to Permit
Common
Parent’s Consortium Claim for
of Texas
Evolution
Consortium Law
Child’s Death
Extending
A.
Common Law
Permit
Whittlesey, we
years
Five
after
were
Separate
Wife’s
Consortium Claim
re-
asked to
whether Texas should
decide
position
its
the traditional common-
vise
Texas,
jurisdictions,
like most other
ini-
surviving parent’s
principle limiting
law
a
tially
damages
limited consortium
to a hus-
pecuni-
damages for
child’s death “to the
arising
band’s claim
out of
of
ary value
the child’s services
finan-
marital relationship. See Garrett v. Reno
contributions,
minus the cost
his
cial
Co.,
Oil
768 (Tex.Civ.App.-
care,
Sanchez,
support
education.”
n.r.e.) (refus-
Fort Worth
writ ref d
Describing
pecuni-
knowledged [t]he wife’s “in financial benefit to be any not the loss of rocal cause action was accord with child, is the from the but justice motivating” gained principle broad love, advice, comfort, companionship [in and member enumerated We, therefore, society. reject pecu- differently death depending statute]” niary loss limitation a plaintiff and allow spouse, whether it is the parent or child compan- added) recover for loss of (emphasis that dies. Id. ionship society Extending Recog- D. Law Common anguish
mental
death
*13
of his or
nize Child’s Consortium Claim for
her child.
Serious,
Injury
Parent’s
Permanent
Relying
Id.
primarily Whittlesey,
we
“injuries
concluded that
to the familial re-
Finally,
years
almost thirteen
ago, we
lationship
significant injuries
are
and are
may
damages
decided that a child
recover
worthy of compensation” and that “[such for loss of
anguish
consortium and mental
real, direct,
injuries] were
personal
and
severely injured by
when a
is
conjectural
losses ... not too intangible or
tortious conduct
party. Reagan,
of a third
to be
in pecuniary
measured
terms.” Id.
a cause of action for
parental
loss of
con-
sortium,
implicitly
II
a consortium action
child....”).
aby
parent upon injury of a
Deconstructing
Opinion
the Court’s
today,
But
ineanting that tort law cannot
remedy every wrong, the Court announces
Remedy Every
A. Tort Law Cannot
Texas does not
filial consor-
Wrong
tium claims
injuries.
for non-fatal
is,
course,
It
preferable that the law
[mantra],
course,
This
is the hue and
See,
be consistent
predictable.
e.g.,
cry many
tort cases and in essence is
Sanchez,
action exists for loss of a child’s
ly
consor
denies recourse to those who are
tium which is derivative of the
claim
only indirectly by
harmed
negli-
another’s
child’s
personal injuries
...
there
negli
gence.
is no
Ill S.W.3d at 118. Acknowl-
gence cause of
arising
action
out of
edging
that
the consortium claims this
fetus.”);
treatment or
Reagan,
recognized
Court has
an exception
are
to
J.,
at
(Doggett,
rule,
concurring
this
attempts
Court then
to dis-
recip-
is not
tinguish
parent-child
the filial consortium claim at issue
“the
this,
child’s
de-
here. To do
the Court asserts
and that “the
interest
rocal”
filial
are
akin
claims for
consortium
more
of the
greater protection
serves
because
claims
siblings
step-
by
consortium
singular
dependency
emotional
parents
id.
spouses
than
and children. See
Ill
at 117. Not
parents.”
(“[W]hile
recognized
have
we
reciproc-
only
this constrained view of
does
spouses and
can recover loss of
children
it is
previous writings,
ity contradict our
consortium, we have
sib-
concluded that
mutu-
light
of the fact that
unpersuasive
cannot.”) (citations
lings
step-parents
been
basis for
dependency
al
has never
omitted).
determining that filial con-
By
any
claims in
of our
rejecting consortium
analogous
sibling
claims
sortium
are
by a
of the
prior
brought
cases
member
claims,
step-parent consortium
the Court
relationship.
or
husband-wife
are
concludes that such claims
not action-
no
past,
explained
In the
we
118;
able in Texas.
id. at
see also
See
injuries
reason exists for
logical
treating
Miles,
Ford
Co. v.
Motor
family
identified
members
(Tex.1998) (denying siblings
step
differently
depending
death statute
adhering
consortium
injured party
spouse,
is the
whether
the boundaries for loss
regardless
or child. This is true
But
are not
Reagan).
established
we
serious,
resulting
per-
harm
whether
here;
dealing
sibling
step-parent
bodily injury or
Cav-
manent
death.2 Cf.
Courtnie
the six-year-old
Williamson is
nar,
Applying
In defiance of
in this
is all the more
consider-
holdings
our clear
area,
position
settled on
adopts
jurisprudence
the Court
that our
has
recog-
only
Supreme
by parents
2.
a deceased child. Not
As the Arizona
Court has
of
nized,
family relationship
de-
"separated
death is
severe
been
often
from
normal
dies,
injury by
fortuity;
par-
ano-
stroyed,
mere
and it would be
as
a child
but the
when
distinguish
when
each
malous to
between the two
also is
with his loss
ent
confronted
quality
negatively
experiences
of consortium is
affect-
he is with his child and
time
Ariz.,
Superior
capacity
ed
both.” Frank v.
Court
again the
diminished
child’s
(1986).
comfort,
The
150 Ariz.
957
give
society,
companionship.
and
explained:
court further
(quoting Simpson,
Parental
Id. at 958
The
Society
Companionship
Loss
and
Perhaps
companionship
and so-
Claim
loss of
Resulting
Negligent Injury
a Child:
ciety experienced by
parents
of a child
From the
Arizona,
severely injured
Proposal
St. LJ.
permanently
...
is in
A
and
Ariz.
(1980)).
ways
greater than
suffered
some
even
proposition
real
gible,
“[t]he
loss sus-
non-economic benefits
in
inherent
parent
tained
is not the
any
loss of
the interaction associated with certain re-
ie.,
financial benefit
gained
to be
from
lationship,
spouses
child,
love, advice,
but is the loss of
com- children.
Whittlesey,
See
572 S.W.2d at
fort, companionship and society.”
San-
chez,
Even 651 S.W.2d at assuming for purposes argu missing argument ment that that consortium this Court has dam- adopted now ages are “too speculative view that a given can “fill in be the void of value”); monetary his or her see also by “seeking loss” out cases cited su- new rela pra note tionships,” factor, note 4. The consideration of Court infra speculates that Reagan, jury apparently “[t]he is but one con- many facets of the cluded that while the relationship juries intangible weigh when mak time, losses ing damage grow would assessments. her continu- S.W.3d at ing impairment 118 (quoting would have no Hay v. Med. substantial Hosp. of Vt, Ctr. effect parent-child on the (1985)); Vt. A.2d see the future.” Ill also S.W.3d at 119. light 466. In “[ajnother Court also jury of our notes that prior holdings after pertaining to the hearing the same might evidence well have relationship, persuasive more very reached a different authority is conclusion.” required deny parents Id. But is that not every jury to recover true filial consortium case? And is that not an children, but continue issue of factual legal to allow including sufficiency children, inquiry adult wholly distinct recover for the same —an injuries. whether we should recognize the
cause of action in the first instance? Damages B. Special Present Chal- It is true that are *17 lenges to Factfinder See, Sanchez, difficult to e.g., assess. 253; Whittlesey, S.W.2d at Similarly unpersuasive at is the Court’s They 667. intangible are contention that therefore reject we must filial con- resist computation. sortium mathematical claims because the Because damage assess- damages ethereal, juries ment is are different difficult. Loss of consortium is a (and may well common-law award different doctrine that sometimes we have consis- excessive) tently amounts modified to based on similar facts. adapt in changes not, But we have until today, societal let those norms and values. Unlike other difficulties overcome our intangible larger interest in tort, values compensated by adjudication claim, fair consortium of a valid does not nor directly focus on a our confidence in plaintiffs See, judiciary our to fulfill internal feelings. e.g., Rea- duty gan, Instead, review awards: 804 S.W.2d at recovery for consortium attaches value to a plain- The fear of excessive not a verdicts is opportunity tiffs lost to derive justification benefit sufficient denying for recov- from another person. Id. ery Stated another for companionship. judi- loss of The way, consortium damages reflect the intan- system cial adequate safeguards however, consortium preclude would recovery ly, prevent damages based But, injury in cases. damages personal all fair prejudice rather than sympathy or discussed, has al- this Court previously just compensation plaintiffs ready recognized spouses that both injuries. may damages recover consortium children Sanchez, 253; at also see Thus, I do not injury in actions. personal Thus, I do Whittlesey, S.W.2d at 667. filial denying parents’ how understand now, in how can not understand the Court here, permitting while consortium claims faith, the difficulties of good contend that cases, injury in recovery personal other calculating damages in filial consortium in Texas not create aberration does cases such claims alto- denying warrant law.3 gether. between differences By focusing Claims C. Filial Consortium cases, injury wrongful personal death and Wrongful Death more attempts palat- to make the Court justification As filial denying another may re- plaintiffs able the fact that some claims, maintains consortium the Court consortium while others cover survives, child no that when the there is position may a similar not. While pre- action to recognize need problematic, is Court conclusion itself escaping liability. vent tortfeasor from true of the in- misapprehends the nature Thus, Ill at 120. concludes the consistency opinion; created its two Court, it is not anomalous to plaintiff groups identified in the the three parent’s intangible damages in death but statute can recover consor- wrongful death injury Id. see personal actions. But personal injury actions tium (“it Miles, 967 at 388 be would the third is walled off. See Tex. Civ. but 71.004(b) recognize a cause action (identifying § anomalous to Prac. & Rem.Code injury for loss of consortium for a severe may who recover under persons statutes). to a one when there is no to- loved Court’s decision death for the mem- to second-class family day relegates death that same also ber”). Applying reneges this rationale on the Court’s earlier consistent- status Pence, ("The persuaded by 3. To the at 433 claim loss of extent the Court is P.2d courts, reasoning ample sufficiently ... dis parental from is consortium is not other there precedent today’s opin tinguishable spousal either to demonstrate that ion, fact, See, cases children’s consor bucks national trend. claims e.g., Ely, death to warrant non Ariz. tium claims in cases Reben ("The (App.1985) public recognition.”) (quoting Hibpshman, 734 policy P.2d 1364-65 994); Hosp. Med. governing parent’s for a death Gallimore Children’s claim Ctr., analogous policy controlling par St.3d 617 N.E.2d Ohio (1993) (”[I]n present day, it would injury.”) ent’s derivative claim for a child’s *18 incongruous deny County Hosp., parents recovery for (quoting Cuyahoga v. be to Norvell 70, 111, society companionship the and of a App.3d 11 463 N.E.2d 115 loss of Ohio Giuliani, (1983)); ("there seriously injured recognizing child at while 951 S.W.2d 321 compensable in cases involv legal no the claim of a such losses are is distinction between Hook, ("When death.”); 804 1137 P.2d at parent loss of a consortium from for child’s Oklahoma, parent’s parent it would be a child the loss a a dies claim of for of consortium”); Berger, anomaly if a were allowed recov at 426 indeed child 303 N.W.2d ("the parent's society a and anomaly ery for of is allow a recov the loss real to par companionship attends the ery parent’s society of and when loss for the loss death, recovery companionship but denied when loss attends to ent’s when the parent's perma equivalent attends deny death but to such injury.”). parent’s injury’’); when nent the loss attends 132 (iv) loss;
promise
protect
to
the familial
plain-
the connection between the
defendant;
(v)
See,
tiff and
e.g., Reagan,
ability
as a
whole.
804 S.W.2d
to
466; Sanchez,
fairly
damages.
Reagan,
at
assess
Cav-
nar, Sanchez, we similar considered Analysis that, balance, D. factors concluded Cost-Benefit they weigh in permitting parents favor of that, correctly *19 al yield consortium claims will a significant consortium, parental permitting or filial (ii) benefit; social the relative born costs injury for death but not serious by parents gen- See, by legal anomaly. e.g., versus those born a creates Audu (in) Mix, Inc., public; eral the nature of 335 Ready the asserted bon-Exira N.W.2d
133 rela- 821; Giuliani, parent-child 149; policy protecting Ber 951 S.W.2d at at Gallimore, 426; tionship the law. at 617 ger, 303 N.W.2d Hook, 1057; 804 N.E.2d Williams v. Reagan Vaughn v. we decided When (Okla.1990). 1131, Unsurpris 1136 P.2d 1990, a We commit- crossed Rubicon. then, that recog of the states ingly, most proposition ted ourselves .to consortium claim also rec nize the child’s just relationship —not to recover ognize parents’ reciprocal right deserving relationship one child-parent —is Underlying each of damages.4 Because Court “special protection.” par is the that the these decisions notion un- has become Reagan cannot show relationship despite is reciprocal, ent-child so changed has or that the law workable party the fact each doctrine significantly that the consortium from the other. receives different benefits obso- antiquated become or has somehow
lete, by principles it should be constrained reversing from course and of stare decisis Ill has expectations it disturbing settled only Reagan The Court evades promoted. Conclusion be- to immaterial distinctions resort past, recognized In the this Court has companionship parent’s tween loss of injury for the consortium claims or death loss of from death and a similar resulting par- or of a spouse, of a death severe, companionship resulting ent, of a death child. We injury. disabling permanent, consistently limited consortium claims—as a significant decision marks Court’s Death Act—to the hus- Wrongful precedent, departure from our consortium parent-child relationships. band-wife and no adequate the Court provides which however, Today, the Court concludes I the court of justification. would affirm policy impels “no social us to compelling respects. Be- appeals’ judgment all right recognize parent’s otherwise, respect- cause I the Court does the loss filial consortium” associated II fully from Part of the Court’s dissent injury. with a child’s Ill at 120. opinion. failing parents’ right By recognize injuries tortiously recover in- children, upon
flicted the Court cre- its incongruence
ates
between
stated
Tulsa,
1052;
City
v.
Currently,
recognize
par-
617 N.E.2d
Gaither
4.
nineteen states
recover,
Hancock,
judicially
(Okla.1983);
ent’s
either
54