# Ferriter v. Daniel O'Connell's Sons, Inc.

> Massachusetts Supreme Judicial Court · September 9, 1980 · 381 Mass. 507

URL: https://www.frixlaw.com/law-library/cases/9737843

## Case

- **Full name:** Judith A. Ferriter & Others vs. Daniel O’Connell’s Sons, Inc.
- **Court:** Massachusetts Supreme Judicial Court
- **Decided:** September 9, 1980
- **Citations:** 381 Mass. 507; 413 N.E.2d 690
- **Precedential status:** Published
- **Opinion:** Dissent by Wilkins
- **Judges:** Liacos, Quirico, Hennessey, Quiraco, Braucher, Kaplan, Wilkins, Abrams
- **Cited by:** 200 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Superseded by statute, as recognized in Lijoi v. Massachusetts Bay Transportation Authority.
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9737843

## How later opinions describe it (automated extraction)

- holding that where a man was seriously injured while working, and his wife and children rushed to the hospital and found him there with permanent and serious injuries, the wife and children’s shock followed closely on the heels of the negligent act
- stating that child has an interest in a parent’s society and affection at least while living in the household
- recognizing child’s claim for loss of parental society and for mental anguish deriving from employer’s negligence and observations of their father’s pain
- recognizing right of child to recover for loss of parent's companionship and society caused by defendant's negligence

## Opinion text

*543 Wilkins, J.
(dissenting). I accept the logic of the opinion of the court that a minor child generally should have a right to recover for loss of a parent’s society and companionship resulting from a defendant’s negligence or intentional wrongdoing. I do this even though we become the first court of last resort in any State to do so.
As a matter of policy, however, I would decline to recognize a spouse’s right to recover for loss of consortium and a child’s right to recover for the loss of a parent’s companionship and society where the injury sustained by the parent-spouse was covered by the Workmen’s Compensation Act. In Diaz v. Eli Lilly & Co., 364 Mass. 153 (1973), we recognized a spouse’s right to recover for loss of consortium and society. In doing so, we noted the preferable circumstance, and the defendant’s right to insist, that the spouse’s consortium claim be tried with the underlying claim of the injured spouse in order to avoid redundant recovery. Id. at 162 . We declared that spouses’ claims for loss of consortium would not be enforceable where the claim for physical injuries had been concluded by judgment, settlement, or otherwise. Id. at 167 .
In the context of a workmen’s compensation injury, there is no litigable tort claim of the injured employee against the employer. Therefore, claims for loss of consortium or of companionship and society cannot be associated at trial with any underlying claim of the injured parent-spouse against the employer. The risk of the jury awarding damages for losses not properly within the scope of the injury to the spouse or child is obvious and substantial. I would not recognize a common law right of a spouse or a child to recover for the loss of consortium or of the companionship and society of a parent-spouse injured in circumstances where the employer’s common law liability to the parent-spouse is barred by the Workmen’s Compensation Act.
For the reasons already stated concerning the inappropriateness of permitting recovery for loss of consortium and companionship where the parent-spouse’s injury was covered under the Workmen’s Compensation Act, I would *544 not extend the principles of Dziokonski v. Babineau, 375 Mass. 555 (1978), to this case and thus would deny recovery for substantial physical injuries arising from emotional distress caused by the plaintiffs’ seeing the injured parent-spouse.
I suspect that the court’s recognition of these rights arising from a workmen’s compensation injury will come as a substantial surprise to employers, insurers, the Bar, and the Legislature. I agree with the view expressed in the dissent of Mr. Justice Quirico that, if there is to be a right to recovery for injuries of the type alleged by the plaintiffs, the Legislature (and not the courts) should establish that right.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9737843. Public record. Not legal advice.