Siciliano v. Capitol City Shows, Inc.

Douglas, J.,

dissenting: The court today chooses not to recognize the right of parents to recover for the loss of society when a child is negligently killed or severely injured. This decision is based on anachronistic concepts from which the majority cannot free itself to examine present-day norms. In my opinion, a parent’s loss of society when a child is negligently killed or severely injured is a cognizable injury for which justice demands compensation. A child is no longer property or an economic unit in the eyes of the law.

The pleadings in this case allege that on July 1, 1981, the plaintiffs’ young daughters entrusted themselves to the owners and operators of the “Octopus” ride. The events that followed can only serve to exacerbate the fears that the cautious experience when witnessing the gyrations of one of these rides. The arm of the “Octopus” attached to the girls’ car broke, and they fell to the ground. Lisa Santuccio was killed and Veronica Siciliano was seriously injured. The plaintiffs have alleged negligence in the operation, repair, and inspection of the “Octopus” ride. They claim that the ride had been in operation in excess of thirty years without adequate maintenance and that the repairs made to it were faulty. The Trial Court (Wyman, J.) upheld the master’s order dismissing the parents’ action for loss of society for failure to state a claim for relief cognizable under New Hampshire jurisprudence.

Historically, the common law has provided, in this and many other jurisdictions, that parents have a compensable injury when deprived of the services of their children. “It has long been the established law in this State that parents are entitled to the earnings and services of their unemancipated minor children.” Beaudoin v. Beaudoin, 118 N.H. 325, 327 , 386 A.2d 1261, 1263 (1978); see Lessard v. Company, 83 N.H. 576, 578 , 145 A. 782, 784 (1929); Hillsborough v. Deering, 4 N.H. 86 (1827).

The parents’ right to a child’s services has its legal origins in the old master-servant theory. See Shockley v. Prier, 66 Wis. 2d 394, 400 , 225 N.W.2d 495, 499 (1975); see also Ferriter v. Daniel O’Connel’s Sons, Inc., 413 N.E.2d 690, 692 (Mass. 1980) (“A father has traditionally had actions for abduction and seduction of his child . . . founded upon an analogy with a master’s action for enticement of his servant.”). This right is not absolute and is correlative to the parents’ duty to support the child. Beaudoin v. Beaudoin, supra at 327, 386 A.2d at 1263 . The right to a child’s services was, however, extinguished on the child’s death. Chaloux v. Company, 75 N.H. 281, 285 , 73 A. 301, 303 (1909). Because the cause of action was based on these economic theories, the pecuniary loss computation that courts *732 still perform might have been appropriate at one time. Today, however, the pecuniary loss computation is an antiquated procedure and the rule is in need of modernization. A child is simply not property.

The origins of the pecuniary loss limitation “are rooted in Charles Dickens’ England,” Dawson v. Hill & Hill Truck Lines, 671 P.2d 589, 592 (Mont. 1983), “an era when ample work could be found for the agile bodies and nimble fingers of small children.” Wycko v. Gnodtke, 361 Mich. 331, 335 , 105 N.W.2d 118, 120 (1960). The damages in these actions were limited to pecuniary loss because “children during minority were generally regarded as an economic asset to parents.” Selders v. Armentrout, 190 Neb. 275, 278 , 207 N.W.2d 686, 688 (1973). During this time, children began working on the family farm or appeared at the minehead or factory gate as early as age 10. Id.

“. . . [T]he restrictive pecuniary loss rule is based on an antiquated concept of the child as an economic asset, stemming from the Dickensian era of brutal child labor... when the ‘dark Satanic mills’ of the nascent industrial revolution disfigured the English landscape. ‘The golf links lie so near the mill that almost every day the little children hard at work look out on the men at play.’ ”

26 A.T.L.A. L. Rep. 196 (June 1983) (quoting the famous advertisement of the International Ladies’ Garment Workers Union) (citing Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983)). Higher education was a privilege not shared among the general populace. See Selders v. Armentrout supra. These are not the realities of today’s society.

The concept of a parent’s right to recover for a child’s lost services was created by the judiciary and, therefore, we may reconsider it. When determining whether to abrogate the doctrine of parental immunity, we held that “it is the responsibility of the judiciary to examine this court-made rule and to make such alterations as the interests of justice may require even though the legislature has chosen not to change it, as was their privilege.” Dean v. Smith, 106 N.H. 314, 317 , 211 A.2d 410, 412-13 (1965); see Briere v. Briere, 107 N.H. 432, 434 , 224 A.2d 588, 590 (1966); see also Wycko v. Gnodtke, 361 Mich. 331, 338 , 105 N.W.2d 118, 121-22 (1960) (“a legislature legislates by legislating, not by doing nothing”); Ferriter v. Daniel O’Connel’s Sons, Inc., 413 N.E.2d 690, 695 (Mass. 1980) (children have a cause of action for loss of parents’ society despite legislative silence); Schokley v. Prier, 66 Wis. 2d 394, 397 , 225 N.W.2d 495, 497 (1975) (“it is as much our responsibility, as the legislature’s, to make changes in the law, if the common-law rule no longer fits the social realities of the present day”).

*733 The action for the loss of a child’s services based solely on pecuniary loss is an outdated concept that has been widely criticized by scholarly authority. “It is not surprising that the pecuniary rule, at least as it requires a computation of ‘child-labor’ wages, has been condemned as barbaric and defended principally with silence.” Finkelstein, Pickrell & Glasser, The Death of Children: A NonParametric Statistical Analysis of Compensation for Anguish, 74 Colum. L. Rev. 884 , 884 (1974). The pecuniary-loss concept requires that juries attempt to estimate the value of the child’s services and then subtract the cost of their support. Id.; see Selders v. Armentrout, 190 Neb. 275, 280 , 207 N.W.2d 686, 689 (1973); see also W. Prosser, J. Wade & V. Schwartz, Cases and Materials on Torts, 579-80 n.1 (6th ed. 1976). This approach is utterly without merit today because “if the rule is literally followed, the average child would have a negative worth.” Selders v. Armentrout, supra at 279, 207 N.W.2d at 689 ; see Sanchez v. Schindler, 651 S.W.2d 249, 251 (Tex. 1983).

“Justice Spears gives both light and answer when he acutely observes that, under the traditional child-labor formula for measuring damages for the death of a child (wages minus upkeep), the average child would' have a negative worth if the formula were literally followed. ‘Strict adherence to the pecuniary loss rule could lead to the negligent tortfeasor being rewarded for having saved the parents the cost and expense of rearing a child.’ As wryly stated in a leading casebook on Torts, ‘If the pecuniary-loss standard were strictly applied, defendant in a wrongful death case involving a child might counterclaim against the parents for a quantum meruit recovery.’ Prosser, Wade & Schwartz, Cases and Materials on Torts 580 (Foundation Press, 7th ed. 1982).”

26 A.T.L.A. L. Rep. 194, 196 (June 1983) (quoting Sanchez v. Schindler, supra at 251).

Three years ago this court recognized that the estimated cost of raising a child was between $69,232 and $85,088. Park v. Rockwell Int’l Corp., 121 N.H. 894, 899 , 436 A.2d 1136, 1139 (1981). Other sources have placed the cost much higher. See Tuhy, What Price Children? Money, March 1983, at 77 ($81,000 to $117,000); Computing the Cost of Kids, Bus. Wk., August 30, 1982, at 80 ($323,000 to $344,000). No court can seriously contend that any child today has an earning capacity that even approaches the lowest of these figures. Most children do not work at all, and the majority of working minors receive little more than the minimum wage and can only work part-time due to educational demands. It does not take an *734 advanced degree in economics to see that it costs much more to raise a child than a child could ever earn during his or her minority. (But see Michael Jackson.)

Several jurisdictions have recently reconsidered this concept and determined that the parents’ recovery should not be limited to pecuniary losses; that the loss of a child’s society is compensable. In Sanchez v. Schindler supra, the Supreme Court of Texas recognized that “by statute or judicial decision, thirty-five states allow recovery for loss of companionship and society in a wrongful death action brought by the parents.” (Emphasis added.) Sanchez, 651 S.W.2d at 252 ; see Miller v. Subia, 514 P.2d 79 (Colo. Ct. App. 1973); Volk v. Baldazo, 103 Idaho 570 , 651 P.2d 11 (1982); Elliot v. Willis, 89 Ill. App. 3d 1144 , 412 N.E.2d 638 (1980); Wardlow v. City of Keokuk, 190 N.W.2d 439 (Iowa 1971); Wycko v. Gnodtke, 361 Mich. 331 , 105 N.W.2d 118 (1960); Fussner v. Andert, 261 Minn. 347 , 113 N.W.2d 355 (1961); Dawson v. Hill & Hill Truck Lines, 671 P.2d 589 (Mont. 1983); Selders v. Armentrout, 190 Neb. 275 , 207 N.W.2d 686 (1973); Anderson v. Lale, 88 S.D. 111 , 216 N.W.2d 152 (1974); Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983); Lockhart v. Besel, 71 Wash. 2d 112 , 426 P.2d 605 (1967); Schockley v. Prier, 66 Wis. 2d 394 , 225 N.W.2d 495 (1975).

In the cases that permit a parent to recover for the loss of a child’s society, the courts have not satisfactorily articulated the rationale underlying their theory. The courts have simply discussed the antiquated pecuniary-loss rule and concluded, usually based on their wrongful death statutes, that the parents have suffered a loss for which they should be compensated. The courts have, however, failed to discuss fully the real changes that have occurred within our society that now make the loss of a child’s society a compensable loss.

Recently, this court reaffirmed its position that parental rights are fundamental rights under the New Hampshire Constitution. Plante v. Engel, 124 N.H. 213 , 469 A.2d 1299 (1983); see State v. Akers, 119 N.H. 161, 163 , 400 A.2d 38, 40 (1979) (“Parenthood lies at the very foundation of our civilization.”). In doing so, the court recognized that there is a “sanctity in the union of parent and child that transcends economics and deserves the utmost respect.” Plante v. Engel supra. The “respect” that the court accorded the parent in Plante was full compensation, including expenses and damages for loss of companionship, for the intentional tort of interference with custody. Id. I fail to see how this court can refuse to recognize the parents’ loss when the child is injured or killed yet permit recovery in a situation where the child was unharmed, as was done in Plante .

*735 Historically, couples had children for two basic reasons: because they were needed to assist with the farm or other labor; and because they “just happened.” Today, the decision whether to have a child is usually a conscious one, seriously undertaken, and the result of much thought and planning. In fact, the decision-making so perplexes some couples that they seek professional advice in the form of counseling or group workshops. See Tuhy, What Price Children? Money, March 1983, at 77.

When the modern couple does decide to have a child, their reasoning is far different from that of the economic considerations of their forefathers. Some common reasons couples choose to have children are the desire: to enrich their lives; to bring joy and a sense of meaning into their marriage; to share their love and affection; and to perpetuate themselves and their family name.

The decision to have a child then gives way to the exigencies of pregnancy and birth. The distress and discomfort the expectant mother experiences for nine months, along with the agony of labor and birth, are only the beginning of parental sacrifice. The arrival of an infant in the home, the many late night feedings, countless diaper changes, and constant worry require a great deal of patience and self-sacrifice by the parents.

As the child grows, so does its needs; the time and effort spent teaching the child to walk and talk are just preliminary to the school years and the onset of new needs. The self-denial and dedication required of a parent to keep a growing child fed and clothed are substantial, in the face of the current cost of such commodities. In today’s society, to raise a child properly, the average parent must surrender many personal luxuries and make an incalculable emotional commitment.

Today’s attentive parent does much more than comply with the common-law duty to support a child that gave rise to the parent’s right to the child’s services. See Beaudoin v. Beaudoin, 118 N.H. 325, 327 , 386 A.2d 1261, 1263 (1978). Parents today make innumerable sacrifices for their children and simply desire the children’s love, respect, and companionship in return. These sacrifices by the parents are like investments that earn the child’s love and companionship as “interest.” When parents are deprived of this “interest,” they suffer a very real loss.

Although parents’ losses could never be fully enumerated, reference to but a few is illustrative of the loss they suffer when deprived of a child’s society: the joy in watching a child take his first steps or utter his first words; the thrill in seeing a son score a touchdown or a daughter perform a ballet; the pride in watching a child graduate from high school, college, or medical school; and the comfort from a *736 Sunday visit and the holidays filled with the cheer that children and grandchildren bring. These simple joys and the millions- of other interpersonal interactions that parents and their children share are the essence of life, without which the quality of a parent’s life is greatly reduced.

Only three years ago, this court recognized one of the most tangible losses parents may suffer when, deprived of their child’s society. We stated that “while parents may not usually be financially ‘dependent’ on their young children, there may well come a time due to both the vicissitudes of life and the natural process of aging when parents may become as dependent on the resources of their children as their children were on theirs in earlier years.” Park v. Rockwell Int’l Corp., 121 N.H. 894, 899-900 , 436 A.2d 1136, 1139 (1981). In December 1983, we recognized that a parent suffers a compensable loss of companionship when deprived of a child through wrongful interference with custody and stated that the parent/child relationship “deserves the utmost respect.” Plante v. Engel, 124 N.H. 213 , 469 A.2d 1299 (1983). The “respect” we accorded the aggrieved parent in Plante was full compensation for the lost companionship. Id.

Clearly, money damages can never fully compensate a parent for the losses sustained when a child is killed or seriously injured, but this should not stop us from permitting recovery. “We are aware, of course, that there are those who say that the life of a human being is impossible to value . . . [and that therefore we should] assign it no value whatever. This kind of delicacy would prevent the distribution of food to the starving because the sight of hunger is so sickening.” Wycko v. Gnodtke, 361 Mich. 331, 339 , 105 N.W.2d 118, 122 (1960).

This court has not previously denied damages to an injured party because those damages cannot be calculated with specificity. See Chagnon v. Union-Leader Co., 103 N.H. 426, 445 , 174 A.2d 825, 837 , cert. denied, 369 U.S. 830 (1961); see also Selders v. Armentrout, 190 Neb. 275, 280 , 207 N.W.2d 686, 689 (1973) (“It is no more difficult for juries and courts to measure damages for the loss of the life of a child than many other abstract concepts with which they are required to deal.”) If we try complicated patent cases or antitrust matters to a jury, surely we can expect them to arrive at a just sum to compensate the stricken parent.

The fear of judgments in excessive amounts is also not an adequate reason to withhold recovery for loss of a child’s society. “The judicial system has adequate safeguards to prevent recovery of damages based on sympathy or prejudice rather than fair and just compensation for the plaintiff’s injuries.” Sanchez v. Schindler, 651 S.W.2d 249, 253 (Tex. 1983). Our juries have never been profligate in their awards. Furthermore, the judiciary has the power to remit *737 excessive awards, and punitive damages are not recoverable in an action for negligence in this State. The fear is a judicial one — not a realistic one.

In addition, our wrongful death statute, RSA 556:12, does not in any way bar recovery by these plaintiffs. See, e.g., Corso v. Merrill, 119 N.H. 647 , 406 A.2d 300 (1979) (parents may recover for negligent infliction of emotional distress when child killed.). RSA 556:12 enumerates the elements of damage that may be considered “in connection with other elements allowed by law. . . .” Recovery for the loss of a child’s services has always been an element “allowed by law.” See, e.g., Beaudoin v. Beaudoin, 118 N.H. 325, 327 , 386 A.2d 1261, 1263 (1978); Lessard v. Company, 83 N.H. 576, 578 , 145 A. 782, 784 (1929). Recovery for the loss of a child’s society is merely a modernization of this concept.

The parents of Veronica Siciliano, whose daughter suffered cerebral injury but still lives, are of course not affected by the wrongful death statute. They are entitled to recover under the old, but still existing, common-law rule for the value of her lost services and should also be allowed to recover for her lost society, with the common law being modernized to conform with present-day notions; namely, that a child is not an economic unit.

The parents of Lisa Santuccio, whose daughter died in the “Octopus,” should also be allowed to recover for their loss of her society. However, since the old common-law rule provides that the right to a child’s services is extinguished on the child’s death, Chaloux v. Company, 75 N.H. 281, 285 , 73 A. 301, 303 (1909), the court should abrogate this archaic barrier to an action for a loss of a child’s society. In terms of the deprivation suffered by the parent, there simply is not a real distinction between a child who is very seriously injured and one who is killed.

Accordingly, these issues should have been submitted to a jury and, therefore, I dissent.