Nulle v. Gillette-Campbell County Joint Powers Fire Board

dissenting.

I must dissent from the decision of the majority in this case. In Gates v. Richardson, 719 P.2d 193, 201 (Wyo.1986), we said:

“Johnny’s [Gates] mother, Peggy Merry-man, and his natural father, Stewart Gates, filed claims for loss of filial companionship, alleging that Richardson’s negligence deprived them of the comfort and companionship of their son. Most courts hold that a parent cannot recover for the loss of a child’s companionship, and we agree. See 67A C.J.S. Parent and Child § 152; Annot., 69 A.L.R.3d 553 . The district court’s dismissal of the claims for loss of filial companionship is affirmed.”

Most courts hold that a child cannot recover for the loss of parental consortium but, on this question, the majority of this court disagrees with the view of most courts.

I am convinced that filial consortium and parental consortium are opposite sides of the same coin, and loss of either should be treated identically to loss of the other. The *1177 precedential policy was articulated in Gates and should be faithfully pursued, or Gates should be overruled. If the policy found in Gates is not acceptable to Wyoming citizens, then wisdom, in my opinion, would justify deference to the legislative department to adjust the rights of citizens as it has done in adopting and amending the wrongful death statute. Sections 1-38-101 to -102, W.S.1977 (June 1988 Repl.). While the logic articulated in the majority opinion appears impressive, the rationale is a familiar one in such cases. I am troubled, however, because it does not account for the entire spectrum of parent-child relationships such as the child who is not a minor yet still dependent.

I find that most of my concerns have been aptly captured by the United States Court of Appeals for the Third Circuit:

“Courts favoring the new claim stress the similarity to spousal consortium, the inconsistency of recognizing loss of services of a deceased parent under wrongful death statutes but not permitting recovery when an injured parent survives, and an assumed need to compensate for an acknowledged loss to the children. “Those courts brush aside such countervailing considerations as increased litigation and insurance costs, finding them speculative and insufficient to prevent creation of a new cause of action. They also point out that courts presently award monetary damages for such intangibles as emotional distress as well as pain and suffering. Declining to await legislative action, the courts that have adopted the new theory of recovery have relied on their duty, as they perceive it, to mold the common law to meet society’s needs.

“The courts refusing to recognize the children’s claims question the advisability of equating parental society with a monetary value. In addition, they point to the difficulties inherent in defining the limits of the new right (e.g., whether it would apply only to minor children, whether it would extend to those standing in loco parentis), and note the probable increased insurance costs and added burden on the courts. A number of the courts also believe that this issue, essentially one of policy, should be resolved by the legislature.

“There is room to question the desirability of a court’s decision to create a new cause of action without adequate demonstration of both need and cost. Curiously, with respect to increased costs of administering the claims, both the courts which dismiss that factor as insubstantial, as well as those which use it as an argument against recognition of a new cause of action, do so without any empirical data or statistical projections. In a concurring opinion, one judge has acknowledged that legislatures possess superior resources with which to weigh all potentially affected interests, Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543 , 652 P.2d 318, 333 [(1982)] (Tanzer, J. concurring).” DeLoach v. Companhia de Navegacao Lloyd Brasileiro, 782 F.2d 438, 441 (3rd Cir.1986).

In the course of its opinion, the United States Court of Appeals for the Third Circuit noted that, at the time, five jurisdictions, following the lead of Massachusetts in Ferriter v. Daniel O’Connell’s Sons, Inc., 413 N.E.2d 690 (Mass.1980), had allowed recovery for claims such as this. It also noted that eight jurisdictions, “among others (footnote omitted), continue to deny recovery, adhering to the rule previously announced by the courts in some twenty states.” DeLoach, 782 F.2d at 440 .

Since 1986, Alaska, in Hibpshman v. Prudhoe Bay Supply, Inc., 734 P.2d 991 (Alaska 1987), and Arizona, in Villareal v. State Department of Transportation, 774 P.2d 213 (Ariz.1989), have recognized such a claim. Hibpshman, 734 P.2d at 992 , incorporates lists of those jurisdictions that have addressed the question, pro and con. In addition, the attempted recognition of the claim by the United State District Court for the District of Colorado, Reighley v. International Playtex, Inc., 604 F.Supp. 1078 (D.Colo.1985), has been nullified by Lee v. Colorado Department of Health, 718 P.2d 221 (Colo.1986). A Court of Appeals in Indiana, in Dearborn Fabri *1178 cating & Engineering Corporation, Inc. v. Wickham, 532 N.E.2d 16 (Ind.App.3 Dist., 1988), also recognized this claim, but the Supreme Court of Indiana, upon review, reversed the Court of Appeals holding that “a child may not maintain an action for loss of parental consortium when the parent is negligently injured by a third person.” Dearborn Fabricating & Engineering Corporation, Inc. v. Wickham, 551 N.E.2d 1135, 1139 (Ind.1990). Maryland and North Carolina also aligned themselves with the majority in 1989. Gaver v. Harrant, 316 Md. 17 , 557 A.2d 210 (1989); Vaughn v. Clarkson, 324 N.C. 108 , 376 S.E.2d 236 (1989). In both Connecticut and Tennessee, intermediate appellate courts have adopted the majority rule. Mahoney v. Lensink, 17 Conn.App. 130 , 550 A.2d 1088 (1988); Still by Erlandson v. Baptist Hospital, Inc., 755 S.W.2d 807 (Tenn.App.1988). The count of jurisdictions is perhaps somewhat imperfect when traced through those opinions that have made the attempt, but it is clear that, for every jurisdiction that has recognized this claim, three have rejected it.

Those courts that have recognized claims like the one in the instant case have, as has the majority in this case, noted the fascination of academia with this topic. In my judgment, those who actually occupy the role of rule and policy making in society need to be most cautious about delegating that function to those who do not serve in that capacity and who, in fact, serve an entirely different function. It appears, in this instance, that a claim of a growing trend toward the recognition of a claim for filial consortium since 1980 is at least an exaggeration, if not a myth.

In the exercise of judicial restraint, and in the interest of certainty in the law, I would follow the view of the majority of jurisdictions, the authority for which is aptly noted in the opinion of the majority of this court, until our legislature articulates a different policy. Consistency with our decision in Gates demands that we reject the arguments and contentions of the Appellants.

I would affirm the trial court.