- The Firm
- Attorney Profiles
- Practice Areas
- Medical Malpractice
- Personal Injury
The validity of a claim for loss of parental consortium in a case where the parent has been seriously injured, but not killed, is a matter of first impression in this State. When our Supreme Court is squarely presented with this issue for the first time, New Hampshire should join the seventeen other states which have recognized this cause of action since 1980. The cause of action is a natural progression of New Hampshire common law, and it is supported by the public policy revealed in this state's legislative enactments and constitutional provisions.
On September 9, 1980, the Massachusetts Supreme Judicial Court became the first state court of last resort to recognize a common law cause of action for loss of parental consortium.1 The father in that case was injured in a workplace accident that left him paralyzed from the neck down.2 Beginning its analysis, the court compared the child's claim to a spouse's claim for loss of consortium, concluding that "[w]e are skeptical of any suggestion that the child's interest in this setting is less intense than the wife's."3
The court then set about considering each of the policy reasons relied upon by those courts that had refused to recognize the cause of action. First, it rejected the notion that a child has no legal entitlement to his parent's society. Citing the state's wrongful death act, which like New Hampshire's, permits the children of a deceased parent to recover damages for loss of society, the court found it "entirely appropriate to protect the child's reasonable expectation of parental society when the parent suffers negligent injury rather than death."4 The court also cited the legislature's express policy of protecting a child's need for parental love and nurture5, and its own earlier recognition that "children enjoy the same right to protection and to legal redress that others enjoy."6
The court noted that it had previously rejected the arguments concerning multiplicity of suits, remoteness of damages, and redundant recovery when it recognized a wife's claim for loss of her husband's consortium.7 Turning to the argument that it should defer to the legislature, the court quoted from its earlier spousal consortium decision: "In a field left to the common law, change may well come about by the same medium of development. Sensible reform can here be achieved without the articulation of detail or the creation of administrative mechanisms that customarily comes about by legislative enactment. . . . In the end the Legislature may say that we have mistaken the present public understanding of the nature of the [parent-child] relation, but that we cannot now divine or anticipate."8
In closing, the court wrote:
In the remainder of the decade following the Massachusetts decision, other highly-respected courts followed suit, including the supreme courts of Michigan10, Iowa11, Wisconsin12, Washington13, Vermont14, Alaska15, and Arizona.16 In the 1990s, a similar array of normally conservative courts adopted the common law cause of action for a child's loss of parental consortium, including the supreme courts of Wyoming17, Oklahoma18, Texas19, West Virginia20, Louisiana21, Montana22, Ohio23, and Kentucky.24 In addition, the Florida legislature passed a statute in 1988 overruling that state's supreme court decision that children did not have a cause of action for loss of parental consortium.25
The parent-child relationship has been described as "the earliest and most hallowed of the ties that bind humanity."26 Similarly, our Supreme Court has recognized that "there is a sanctity in the union of parent and child . . . that deserves the utmost respect."27 The Court has also emphasized "the importance of stable family relationships to the healthy psychological development of the children."28 According to the Court, the failure of a parent to carry out his or her duties leaves a "critical vacuum in the child's life."29
Recognition of the connection between stable family relationships and the child's psychological development is the first step in understanding the nature of the child's injury when her parent is seriously injured. The Wisconsin Supreme Court has explained that "the child's loss of his parents' love, society and protection deprives him of the essentials for a healthy development and thus results in a real injury to the child."30 The child's loss "goes beyond deprivation of the 'enjoyment' of shared experiences with [her] father. It also involves the loss of the care, guidance, love, and protection of the father, as well as the absence of an essential role model in [her life]."31
If follows that "[w]hen the vitally important parent-child relationship is impaired and the child loses the love, guidance and close companionship of a parent, the child is deprived of something that is indeed valuable and precious. No one could seriously contend otherwise."32 The highly conservative Texas Supreme Court concluded that "[t]he obvious and unquestionable significance of the parent-child relationship compels our recognition of a cause of action for loss of parental consortium."33 Simply put, "[t]he importance of the child to our society merits more than lip service."34
New Hampshire, of course, pays more than just lip service to the importance of the parent-child relationship. "[T]he family and the rights of parents over it are . . . natural, essential, and inherent rights within the meaning of the New Hampshire Constitution, part I, article 2."35 Not only are these rights the property of the parent, but they are his obligation. Thus, each child in this state is entitled to custody, care, nurturing, supervision, and teaching from his parents.36
One of the manifestations of this state's emphasis on the parent-child relationship is that the State's burden of proof when it seeks to terminate parental rights pursuant to R.S.A. 170-C is proof beyond a reasonable doubt.37 By way of comparison, the marital bond, impairment of which causes a compensable loss of consortium, may be dissolved on a no-fault basis.38 The state's interest in the parent-child relationship is clearly more compelling than its interest in any other family relationship.
The New Hampshire legislature recently undertook to remedy the obvious inequity in allowing a cause of action for loss of spousal consortium in wrongful death claims, but not allowing a cause of action for loss of parental or filial consortium. The General Court amended the wrongful death statute to permit children to recover when their parent is tortiously killed, and to allow parents to recover when their child is tortiously killed.39 That the legislature did not enact a statute granting parents and children a cause of action in non-death cases is not surprising since personal injury cases are governed by judge-made law, while recovery for wrongful death is a purely statutory cause of action.40
Our Supreme Court has emphasized that "judicial power to create a tort is to be exercised in light of relevant policy determinations made by the legislative branch."41 Thus, the fact that the legislature had enacted a cause of action against liquor licensees for harm caused by drunk drivers they had excessively served led the Court to recognized a similar common law cause of action against social hosts.42
The legislature's recognition in R.S.A. 556:12, III that children whose parents are tortiously killed suffer a loss that this state should remedy, includes the implied rejection of the policy arguments against compensating this loss. In fact, the statute must be read to overrule Siciliano v. Capitol City Shows, Inc.43, which relied upon questionable public policy analysis to reject a parent's claim for loss of consortium when a child is killed or injured.
As Justice Pfeifer of the Ohio Supreme Court put it, by recognizing the child's right to recover under the wrongful death statute the legislature was "responding to changing sensibilities by applying them in an area of the law which it has historically shaped . . ."44 He added that the courts "should not sit stonelike when we are presented with a case that demands the same."45
The courts that have recognized the common law cause of action in injury cases have relied upon legislation in their states similar to R.S.A. 556:12, III. As Justice Pfeifer said, the wrongful death statute should be viewed as a guide, not as a roadblock. "That legislation is a signal that our society has recognized that the wrongful death of a parent . . . results in compensable damages, the amount of which cannot be determined by consulting the ledger book. That legislation should have been a signal that the common law needs to change incrementally with the changing sensibilities of a people."46
The courts have uniformly recognized that "[p]recluding minor children from maintaining a cause of action for loss of parental consortium arising from their parent's injury would, in our view, be inconsistent with the legislature's authorization of such recovery when the parent dies . . ."47 One court has gone further and convincingly argued that the loss suffered by a child when a parent is seriously injured may be even worse than the loss suffered when the parent dies. "Because a child has to deal with the day-to-day realities of the disabilities of a severely injured parent, the child may suffer more intense and enduring mental anguish and suffering than would be the case if the parent died."48
In light of the policy determinations made by the General Court in enacting R.S.A. 556:12, III, our Supreme Court should recognize the child's cause of action in the common law context of non-death cases.49 In adopting the cause of action, the West Virginia Supreme Court observed that "we, like almost all of the courts recognizing the claim in question, believe the legislature has implicitly recognized legal entitlement to parental consortium in nonfatal injury cases by explicitly recognizing entitlement to parental consortium in wrongful death cases."50
The fact that the legislature imposed a cap on damages under 556:12, III does not affect the recognition of the common law cause of action in personal injury cases.51 The legislature remains free to abolish the newly recognized common law right altogether or set a ceiling on the amount recoverable.52
Adoption of the common law cause of action is also mandated by the New Hampshire Constitution's guarantees of equal protection and a right to a remedy. The state constitution's express guarantee of equal protection is found in part I, articles 2 and 12. Similarly, the constitution's guarantee of a right to a remedy in part I, article 14 has been described as "basically an equal protection clause because it implies that all litigants similarly situated may appeal to the courts both for relief and for defense under like conditions and with like protection and without discrimination."53
Equal protection analysis generally requires only that a classification created by a statute be rationally related to a legitimate legislative purpose. However, because the right to recover for personal injuries guaranteed by the state constitution is an important substantive right, the constitutionality of any restriction on a New Hampshire resident's right to recover is subject to the significantly more rigorous middle-tier scrutiny.54
Under middle-tier scrutiny, where similarly situated persons are treated differently, the classification created by the statute must be reasonable, it must not be arbitrary, and it must differentiate in a manner having a fair and substantial relation to the object of the statute.55 The classification created by R.S.A. 556:12, III between children whose parent has been tortiously killed and children whose parent has been tortiously injured does not pass middle-tier scrutiny.
There is no legitimate distinction between the loss of consortium suffered by a 14 year old girl whose father is rendered a quadriplegic and the loss suffered by another 14 year old girl whose father is killed. This is nothing more than an arbitrary distinction. Ordinarily, the legislature would be entitled to create this type of distinction; however, New Hampshire's constitutional right to a remedy requires more.
Courts in other jurisdictions have recognized the arbitrariness of the classification created by permitting recovery under the wrongful death statute, but not under the common law. For instance, the Oklahoma Supreme Court recently wrote: "we are hard pressed to find a distinction between allowing children to recover for the loss of consortium a child suffers through the actual death of a parent under [the wrongful death act] and refusing to allow recovery for the loss of consortium when for all practical purposes the parent is in a state which equates death."56
The Supreme Courts of Michigan, Washington, Vermont, Alaska, Arizona, and Montana have also referred to this classification as being either anomalous or inconsistent.57 As is noted above, the Oklahoma court even found that the child with a permanently injured parent likely suffers a greater loss than the child whose parent has died.58
Another arbitrary classification is created by the statutes which permit a spouse to recover damages for loss of consortium in a personal injury case, see R.S.A. 507:8-a, and in a wrongful death case.59 Again, there is no meaningful distinction between a spouse's loss of care, comfort, and society, and a child's loss of care, comfort, and society. This too has been recognized by several courts.60
The New Hampshire Supreme Court has never hesitated to strike down arbitrary restrictions on the right to recover in the twenty years since it adopted middle-tier scrutiny.61 In fact, prior to adopting middle-tier scrutiny, the Court recognized that even under the rational basis test serious constitutional concerns were implicated by its refusal to recognize a common law cause of action for women whose husbands had been injured, when it had recognized the same claim for men whose wives had been injured.62
The very same constitutional concerns are present if a common law cause of action is not recognized for children whose parent has been seriously and permanently injured by the tortious act of another. This class of plaintiffs is subjected to legislative discrimination. Prior to 1980, this classification might have passed constitutional muster under the rational basis test. However, today, under middle-tier scrutiny, it does not. As a result, the cause of action for loss of parental consortium must be adopted as a matter of New Hampshire common law.
It is a basic principle of the common law that "[e]quity will not suffer a wrong without a remedy."63 The constitutional right to a remedy in part I, article 14 simply reflects this and adopts it as one of this state's essential truths. In recent years, our Supreme Court has recognized its duty to see that this fundamental precept is not ignored. "Where no established remedy exists or established remedies would be meaningless, . . . , we will not hesitate to exercise our authority to create an appropriate remedy."64 An excellent example is found in the Court's recent adoption of the common law tort of malicious defense in Aranson v. Schroeder.65 Despite the novelty of this cause of action, the Court recognized the new tort, at least in part, because of the constitutional guarantee of a remedy for every wrong.66
When a defendant's conduct permanently deprives a child of her parent's society, services, companionship, support, education, and consortium, the child suffers a real loss. At the present time, this represents a wrong without a remedy. It is up to the Court, as a matter of constitutional law and common law, to fashion an appropriate remedy. As the Kentucky Supreme Court observed in the most recent case adopting the parental consortium cause of action, "[i]t is a natural development of the common law to recognize the need for a remedy for those children who lose the love and affection of their parents due to the negligence of another."67
Although the argument is raised as a matter of course by defendants seeking to avoid liability for loss of parental consortium, courts uniformly reject the notion that recognition of this cause of action cannot be accomplished without express legislative action. Typical is the following comment from the Vermont Supreme Court:
Loss of consortium in non-death cases has been a traditional common law concern. While legislative activity in related areas provides support for the common law cause of action,69 the lack of such activity does not preclude the recognition of the claim.70
In Siciliano v. Capitol City Shows, Inc.71, our Supreme Court held that a parent does not have a right to recover for the loss of society of his or her child. The Court's reasoning in Siciliano is contrary to its previous decisions, contradicted by its subsequent decisions, and lacking in logical persuasiveness. It is not surprising, therefore, that the legislature has recognized the very cause of action Siciliano rejected.72 In any event, there are substantial differences between a cause of action in favor of a parent for the loss of his or her child's society and a cause of action in favor of a child for the loss of his or her parent's society, services and companionship.
As an initial matter, one must compare the practicalities of the loss suffered by a child when a parent is rendered permanently disabled with the loss suffered by a parent when a child is rendered permanently disabled. In Siciliano, the Court properly characterized the parent's injury as solely an emotional one.73 This is so because the parent's future development as an individual will not be impaired by the loss of his daughter's companionship. After Siciliano was decided, however, the Court recognized "the importance of stable family relationships to the healthy psychological development of the children."74 Thus, it has become clear that there is a material difference between the sadness suffered by the parent in Siciliano and the fundamental psychological and social damage suffered by a child whose parent is effectively taken away from her.
The Wyoming Supreme Court has recognized a cause of action for a child's loss of parental consortium even though it rejected a cause of action for a parent's loss of his child's consortium only four years earlier.75 The Wyoming court persuasively explained the distinction between the two bases for recovery:
As justification for its holding, the Siciliano Court listed several areas of "compelling public policy" which militated against recognizing a parent's right to recover for the loss of his or her child's society.77 A close examination of these justifications demonstrates, as several other courts have found, that they are no longer so compelling. The New Hampshire legislature obviously reached the same conclusion when it enacted R.S.A. 556:12, III.
In Siciliano, the Court began by stating that "[t]he loss of a child's society is an intangible, nonpecuniary loss which can never be properly compensated by money damages."78 This rationale is unpersuasive for several reasons.
First, as detailed above, the loss of a parent's guidance, support, and companionship is a far more tangible loss than the purely emotional loss suffered by a parent losing a child. Second, this argument, if taken to its logical extent, would require that there be no recovery for pain and suffering, emotional distress, loss of spousal consortium, and loss of enjoyment of life, each of which has obviously been available in this state for many years.79 Lastly, the tort system has operated for centuries on the premise that an award of money damages is the best method for compensating a person who has suffered a loss caused by the fault of another.80
The Siciliano Court's first "compelling" public policy reason for disallowing recovery for the loss of a child's society is therefore in direct contrast to its own previously declared, and subsequently reiterated, recognition of the practicalities of the tort system. Furthermore, the Court's rationale has been demonstrated to be erroneous by several other courts.
The Court's second public policy justification was that "[t]he emotional nature of the loss makes defining and quantifying damages difficult, which may lead to disproportionate awards."81 Once again, it is clear that this rationale is far from compelling under the present circumstances.
The child's loss is demonstrably less emotional and far more tangible than the parent's loss in Siciliano. Moreover, it is impossible to distinguish loss of parental consortium from loss of spousal consortium in terms of defining and quantifying damages. Since loss of spousal consortium has been compensable for many years, this fear is completely unfounded.
The Court has expressly contradicted itself on this very issue, both before and after the Siciliano decision, by repeatedly articulating its "fundamental principle" that the difficulty of determining the sum which will compensate a person wronged by another is no reason for not allowing the injured party to recover damages.82
The Court's fear of disproportionate awards was put to rest by its subsequent decision in Brannigan v. Usitalo83, in which the Court acknowledged that
The operation of this safeguard was recently demonstrated in Thibeault v.Campbell.85 In that case, the Court held that the trial court erred by failing to grant a remittitur where the jury's award for non-pecuniary injuries was found to be exorbitant and unreasonable.86
It is plain, therefore, that the fears contemplated by the Court in Siciliano relative to the imprecise nature of compensation for emotional injuries and the problem of "run-away" juries, are not of such magnitude as to prevent the present cause of action. In fact, it is common knowledge today that the only disproportionate awards made by New Hampshire juries are disproportionately low awards.
The third policy issue mentioned in Siciliano was "the probability of increased litigation and multiple claims, which will hinder settlements and increase expenses."87 As Justice Douglas observed in his dissent in Siciliano, this fear is a "judicial one - not a realistic one."88 It is unrealistic because loss of consortium claims are almost always joined with the substantive personal injury claims. In fact, in response to this concern, many courts have required joinder unless it is not feasible in a particular case.89
Even if the fear of increased litigation were a legitimate one, it is difficult to imagine that the possibility of increased litigation is a valid reason for disallowing recovery to one who has suffered a loss caused by the wrongful conduct of another. This is particularly true in light of the fact that the right to recover is an important substantive right protected by the state constitution. If one is legally entitled to compensation, the prospect of an avalanche of new litigation should be of no concern since it would merely represent the proper exercise of the citizen's rights under the law.
The Siciliano Court next cited the fact that "the social burden of providing damages for this loss will ultimately be borne by the public through increased insurance premiums or in the enhanced danger that accrues from the greater number of people who will choose to go without insurance."90 This is simply not a legitimate reason for denying a citizen of this State his or her constitutionally-based right to recover for personal injuries.
The Court did not find this issue to be compelling when it abrogated the common law rule of municipal immunity in Merrill v. Manchester:
In addition, the Court has struck down several statutes as unconstitutional even though their express purpose was to reduce insurance premiums.92
Courts in other states have rejected increased insurance premiums as a proper consideration in parental consortium claims. "This is a standard argument raised against expanding any area of tort liability. When considering the recognition of a new cause of action, the specter of increased insurance rates is one of our least concerns."93 Other courts have determined that the public cost was at least offset by the benefit of compensating a child who has suffered developmental problems because of the deprivation of a parent's love and affection since such compensation may provide the child with "the means of adjustment to the loss."94
Siciliano raised several additional issues to justify the arbitrary distinction between spousal loss of consortium, which has been recognized for many years, and loss of a child's consortium, which it refused to recognize. First, the Court observed that "many courts have been more willing to protect the relationship between husband and wife than that between parent and child."95 A simple comparison of New Hampshire divorce law with the law regarding termination of parental rights demonstrates that this was, and is, untrue in this state.
R.S.A. 458:7-a expressly provides for a "no-fault" divorce on the grounds of "irreconcilable differences." The Supreme Court, in fact, has recognized that "the inefficacy of arbitrary legal rules in preserving marital harmony" led to the enactment of the no-fault statute.96 On the other hand, the Court has held that "the family and the rights of parents over it are . . . natural, essential, and inherent rights within the meaning of the New Hampshire Constitution, part I, article 2."97 Thus, the State's burden of proof when it seeks to terminate parental rights pursuant to R.S.A. 170-C is proof beyond a reasonable doubt.98 Justice Johnson has expressed the opinion that "the relationship between parent and child is nearly inviolable."99
The fact that the termination of the marital relationship may be accomplished without even a showing of fault, while the State must meet the most rigorous burden of proof in order to interfere with the parent-child relationship establishes that New Hampshire law favors the preservation of the parent-child relationship. To the extent that Siciliano suggested otherwise, it stands alone in the reported decisions of this state.
The next distinction drawn by the Court in its attempt to justify the difference in treatment between spousal and parental consortium claim was that "loss of marital consortium includes impairment of the sexual life a married couple, which is not an element of the parent-child relationship."100
While this is an accurate statement of fact, it is plainly irrelevant to the propriety of recognizing a cause of action for a child's loss of his or her parent's society, companionship, guidance, discipline, and love. It cannot be contended that the spousal consortium claim is based solely on its sexual component.101 The fact, therefore, that sexual relations are not a part of the parent-child relationship simply is not a legitimate reason for prohibiting a child from recovering for the elements of consortium that she lost when her parent was permanently disabled.102
The Court continued in Siciliano by arguing that, unlike the cause of action for negligent infliction of emotional distress which it recognized in Corso v. Merrill103, the cause of action for loss of a child's society includes no "well-defined limiting factors."104 This argument may have some merit in the case of a parent seeking recovery for the loss of his or her child's society since, as discussed above, that is a purely emotional injury. Where a child loses a parent's consortium, however, the loss is well-defined and foreseeable and those entitled to recover are strictly limited.
Lastly, in Siciliano, the Court appeared to find that the wrongful death statute, R.S.A. 556:12, prohibited a parent's recovery of damages for loss of a child's society since "damages are not assessed based on the loss suffered by surviving relatives."105 This point has no application to non-death cases; and, in any event, it has been remedied by the enactment of R.S.A. 556:12, III.
When a child seeks to recover damages for loss of parental consortium, Siciliano is not controlling. It addresses a substantially different claim; it does not address the important constitutional issues; and it is simply an inaccurate analysis of New Hampshire law.
The cause of action for loss of parental consortium deserves a fresh look in New Hampshire. Such an analysis would reveal that children of badly injured parents suffer a real loss that cannot be meaningfully distinguished from the loss suffered by children of deceased parents, or from the loss suffered by spouses. It follows that common sense, and constitutional law, require that this state recognize a common law cause of action for loss of parental consortium.