“A rule 8 claim is brought by parent to redress a wrong done to himself rather another.”
How later courts described this case
- “A rule 8 claim is brought by parent to redress a wrong done to himself rather another.”
- K[W]e have no obligation to adopt a rule just because it has generally been adopted elsewhere. Although cases from other states may be persuasive authority, they have no greater cogency than the reasoning by which they were decided.”
- “[W]e have no obligation to adopt a rule just because it has generally been adopted elsewhere. Although cases from other states may be persuasive authority, they have no greater cogency than the reasoning by which they were decided.”
- rejecting RESTATEMENT (SECOND) OF TORTS § 494’s rule of imputed negligence
Written by the judges who cited it.
The opinion
UHLENHOPP, Justice
(dissenting).
The commentators appear right that most of the legal theories assigned by the courts for denying recovery are not logical. But are the decisions just?
The apparent unanimity of decision denying recovery in this country in spite of the commentators led me to examine a number of cases. The more I did so, the fairer the results appeared in actual practice and the more anomalous any other result seemed. The same was true of the consortium cases. See as illustrative Ross v. Cuthbert, 239 Or. 429, 435 , 397 P.2d 529, 531 (“It may be that the operation of the rule of contributory negligence which gives the victor all or nothing is a weakness in the textbook writers’ logic. Evidently the courts view with disfavor a contention that a third party should pay all of the damages when the husband’s own negligence was responsible for some of them.”); Emery v. Frateschi, 161 Me. 281 , 211 A.2d 578 (son and the third person both on wrong sides of road) ; McNally v. Addis, 65 Misc.2d 204 , 317 N.Y.S.2d 157 (son intoxicated).
Suppose, for example, a youth who has had too much to drink is not watchful and falls down on an icy sidewalk. The jury finds the fall was proximately caused by the youth’s negligence in not watching and by the city’s negligence in not salting the sidewalk. Under those findings and the court’s opinion in the present case, the jury must be told that the city is required to pay full damages for the youth’s lost services during minority and for his medical expenses. The same would be true even if the youth were 90% to blame. Such a result seems unjust. Application of comparative negligence would most adequately rectify the injustice, but we do not have comparative negligence in these cases.
The city would undoubtedly seek contribution from the negligent youth. The youth would undoubtedly counter that the city cannot have contribution because of the common liability and family immunity rules. Iowa Power & Light Co. v. Abild, 259 Iowa 314 , 144 N.W.2d 303 ; Barlow v. Iblings, 261 Iowa 713 , 156 N.W.2d 105 . Such a result also seems unfair when the youth partly or mainly caused the damage. But if the family immunity rule were abrogated and the city recovered over from the youth for half, the practical effect would be, as to the youth’s services which belong to the parent, that the youth would pay his parent for half of them, and, as to the youth’s medical expenses which constitute a parental obligation, that the youth would bear half of them. Perhaps the youth *580 would also have to pay for half of the parent’s loss of the youth’s companionship and society for the period the youth was injured. See Wardlow v. Keokuk, 190 N.W.2d 439 (Iowa).
It may be said of this that insurance will pay everything anyway. But can we proceed initially on the basis of the fault of the individuals involved and then switch to an insurance basis to reach a result ? And what if no insurance exists? See Shaker v. Shaker, 129 Conn. 518 , 29 A.2d 765 ; Bush v. Bush, 95 N.J.Super. 368 , 231 A.2d 245 ; Nahas v. Noble, 77 N.M. 139 , 420 P.2d 127 ; Becker v. Rieck, 19 Misc.2d 104 , 188 N.Y.S.2d 724 ; Silverstein v. Kastner, 342 Pa. 207 , 20 A.2d 205 .
We can in these cases divorce the child from the parent in contemplation of law, but we cannot do so in fact. The rule of the decisions seems the fairer one to me. Some of the cases are Pioneer Constr. Co. v. Bergeron, 170 Colo. 474 , 462 P.2d 589 ; Schaffner v. Smith, 158 Colo. 387 , 407 P.2d 23 ; Wueppesahl v. Connecticut Co., 87 Conn. 710 , 89 A. 166 ; Heisler v. Kauffman, 273 Ill.App. 133 ; Brown v. Slentz, 237 Ind. 497 , 147 N.E.2d 239 ; Douga v. Ancona Baking Co., 193 So. 271 (La.App.); Barlow v. Lowery, 143 Me. 214 , 59 A.2d 702 ; Wineman v. Carter, 212 Minn. 298 , 4 N.W.2d 83 ; Fekete v. Schipler, 80 N.J.Super. 538 , 194 A.2d 361 ; McNally v. Addis, 65 Misc.2d 204 , 317 N.Y.S.2d 157 ; McKirryher v. Yager, 112 Vt. 348 , 24 A.2d 336 .
I do not think the present case is ruled by Irlbeck v. Pomeroy, 210 N.W.2d 831 (Iowa). There the parent had an otherwise valid cause of action against the third person. The question was whether the guest statute took it away, and we held it did not. We do not have a statute here. Our question is whether the parent has a cause of action in the first place.
I would affirm the judgment.
MOORE, C. J. and REES, J., join this dissent.