IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
(HEARD AT SHELBYVILLE)
FILED
FOR PUBLICATION
January 25, 1999
Filed: January 25, 1999
Cecil Crowson, Jr.
MARTHA P. JORDAN, Administratrix ) Appellate Court Clerk
of the Estate of Mary Sue Douglas, )
Deceased, )
)
PLAINTIFF/APPELLANT, ) HUMPHREYS CIRCUIT
)
v. ) Hon. Robert E. Burch
)
BAPTIST THREE RIVERS HOSPITAL, ) No. 01S01-9706-CV-00142
MARK W. ANDERSON, M.D., )
NOEL DOMINGUEZ, M.D., AND )
PATRICK J. MURPHY, M.D., )
)
DEFENDANTS/APPELLEES. )
FOR PLAINTIFF/APPELLANT: FOR DEFENDANT/APPELLEE,
PATRICK J. MURPHY, M.D.:
DAVID RANDOLPH SMITH
ROBERT BLAKE MENZEL ROBERT E. HOEN
Nashville JOHN R. CALLCOTT
Nashville
FOR DEFENDANT/APPELLEE,
BAPTIST THREE RIVERS HOSPITAL: FOR AMICUS CURIAE,
STEFFONE McCLENDON:
GAYLE MALONE, JR.
KATHRYN J. LADD H. NAILL FALLS JR.
KARA E. SHEA JAMES B. JOHNSON
Nashville Nashville
FOR DEFENDANT/APPELLEE,
MARK W. ANDERSON, M.D.: FOR AMICUS CURIAE,
TENNESSEE TRIAL LAWYERS
DAN L. NOLAN ASSOCIATION:
SUZANNE M. PEARSON
Clarksville JOHN A. DAY
DONALD CAPPARELLA
FOR DEFENDANT/APPELLEE, Nashville
NOEL DOMINGUEZ, M.D.:
STEVEN W. TERRY
THOMAS F. RAINEY Morristown
Jackson
OPINION
TRIAL COURT REVERSED HOLDER, J.
OPINION
We granted this appeal to determine whether spousal and parental
consortium losses should be permissible in wrongful death actions. Tennessee
law previously permitted the anomalous result of allowing spousal consortium
losses in personal injury cases but not in cases of wrongful death. Upon review
of the modern trend of authority and careful scrutiny of our statutory scheme, we
hold that loss of consortium claims should not be limited to personal injury suits.
We hold that the pecuniary value of a deceased's life includes the element of
damages commonly referred to as loss of consortium.
BACKGROUND
This cause of action arises out of the death of Mary Sue Douglas
("decedent"). The plaintiff, Martha P. Jordan, is a surviving child of the decedent
and the administratrix of the decedent's estate. The plaintiff, on behalf of the
decedent's estate, filed a medical malpractice action against the defendants,
Baptist Three Rivers Hospital, Mark W. Anderson, M.D., Noel Dominguez, M.D.,
and Patrick Murphy, M.D. The plaintiff has alleged that the defendants'
negligence caused the decedent's death.
The plaintiff's complaint sought damages for loss of consortium and for
the decedent's loss of enjoyment of life or hedonic damages. The defendants
filed a motion to strike and a motion for judgment on the pleadings asserting that
Tennessee law does not permit recovery for loss of parental consortium and for
hedonic damages.
The trial court granted the defendants' motion to strike and granted the
plaintiff permission to file an interlocutory appeal. The Court of Appeals found
2
that the plaintiff's application for appellate review was untimely. Nevertheless,
the appellate court "reviewed the plaintiff's application and the responses of the
defendants and [found] that this [was] not an appropriate case for an
interlocutory appeal." The plaintiff's application for an interlocutory appeal was
denied. We granted appeal1 to determine whether claims for loss of spousal and
parental consortium in wrongful death cases are viable in Tennessee under
Tenn. Code Ann.§ 20-5-113.2 We express no opinion as to whether the loss of
parental consortium may be recovered in personal injury actions in which the
parent or parents survive. That issue will be addressed in an appropriate case.
ANALYSIS
Development of Wrongful Death Statute
A wrongful death cause of action did not exist at common law. See
Annotation, Modern Status of Rule Denying a Common-Law Recovery for
Wrongful Death, 61 A.L.R. 3d 906 (1975). Pursuant to the common law, actions
for personal injuries that resulted in death terminated at the victim's death
because "in a civil court the death of a human being could not be complained of
as an injury." W. Page Keeton et al., Prosser and Keeton on the Law of Torts
§ 127, at 945 (5th ed. 1984) ("Prosser"). "The [legal] result was that it was
cheaper for the defendant to kill the plaintiff than to injure him, and that the most
grievous of all injuries left the bereaved family of the victim . . . without a
remedy." Id. This rule of non-liability for wrongful death was previously the
prevailing view in both England and in the United States. East Tennessee V. &
1
Ora l argu me nt wa s hea rd in th is cas e on A pril 2, 1 998 , in Sh elbyville , Bed ford Cou nty,
Tenn essee , as part of this Cou rt’s S.C.A.L .E.S. (Supreme Court Advancing Lega l Education for
Students ) project.
2
This Cou rt has prev ious ly held th at cla ims for he don ic dam age s are not via ble in
Tenn essee in wrongf ul death c ases. See Spencer v. A-1 Crane Serv., Inc., 880 S.W.2d 938, 943
(Tenn. 1994).
3
G. Ry. Co. v. Lilly, 18 S.W. 243, 244 (Tenn 1891); Hall v. Nashville & C. R. Co., 1
Shan. 141 (Tenn. 1859).
In 1846, the British Parliament enacted a wrongful death statute designed
to abrogate the common law rule's harsh effect of denying recovery for personal
injuries resulting in death. The English statute was referred to as "Lord
Campbell's Act" and created a cause of action for designated survivors that
accrued upon the tort victim's death. See Malone, The Genesis of Wrongful
Death, 17 Stan. L. Rev. 1043, 1051 (1965); Prosser, § 127, at 945.
Jurisdictions in the United States were quick to follow England's lead. Id.
In 1847, New York became the first American jurisdiction to enact a wrongful
death statute. Speiser, Recovery for Wrongful Death and Injury, § 1:9 (3d ed.
1992). Presently, every jurisdiction in the United States has a wrongful death
statute. Id.; see also Prosser, § 127, at 945. These statutes, including that of
Tennessee, embody the substantive provisions of Lord Campbell's Act and
permit designated beneficiaries to recover losses sustained as a result of the tort
victim's death. Dixie Ohio Exp. Co. v. Butler, 166 S.W.2d 614, 615 (Tenn. 1942);
East Tennessee, 18 S.W. at 244.
Tennessee was one of the earliest states to abrogate judicially "[t]he
artificial rule of the common law that every right of action for personal injury died
with the person injured." East Tennessee, 18 S.W. at 244. As early as 1836,
the Tennessee legislature enacted a statute providing for the survival of all civil
actions for which suit had been commenced prior to the victim's death.3 In 1850,
our legislature made its initial attempt to permit recovery in wrongful death cases.
The legislation permitted a recovery for wrongful death by enacting legislation
3
"[W]hen any person may depart this life, by or against whom . . . any civil action, whether
the same be founded on wrongs or contracts, except actions for wrongs affecting the person or
character of the plaintiff, may have commenced, it shall be lawful to renew such suit by or against
the personal representative of such decedent . . ." 1836 Tenn. Pub. Acts, ch. 77.
4
that permitted a personal representative to bring an action on behalf of a widow
or next of kin for the wrongful death of the victim regardless of whether suit had
been commenced prior to the death.4 This statute underwent revisions in 18515
and 18776 which moved the law closer to its present form. Thus, prior to 1850,
Tennessee adhered to the common law rule that, upon the death of the victim,
no cause of action for damages could be brought by the estate of the deceased
for the benefit of third parties, such as family members, who sustained losses as
a result of the death. See Daniel v. East Tenn. Coal Co., 58 S.W. 859, 860
(Tenn. 1900); Chambers v. Porter, 45 Tenn. 273, 276 (1868).
After more than a century of piecemeal revision by the legislature and
interpretation by the courts, Tennessee's modern wrongful death law has taken
shape. See generally, T. A. Smedley, Wrongful Death Actions in Tennessee, 27
Tenn. L. Rev. 447 (1960). Our present wrongful death statutes are substantially
similar to the early codifications abandoning the rule of non-liability for wrongful
death.
Specifically, Tenn. Code Ann. § 20-5-102, the direct descendent of the
1836 statute, provides that
[n]o civil action commenced, whether founded on wrongs or
contracts, except actions for wrongs affecting the character of the
plaintiff, shall abate by the death of either party . . . ; nor shall any
4
"[I]n all and every case where any person shall come to his death, by injuries received
from anot her . . . f or wh ich inj uries , in ca se de ath h ad no t resu lted, a n act ion of dam age s wo uld lie
at law, the personal representative of the person thus killed shall have the right to institute an
action for damages . . ." 1850 Tenn. Pub. Acts, ch. 58.
5
"[W]hen the death of one is caused by the wrongful act or omission of another, the
personal representatives of the former may maintain an action against the latter, if the former
might have maintained an action had he lived, against the latter for an injury caused by the same
act or omission . . ." 1851 Tenn. Pub. Acts, ch. 17.
6
"[T]he right of action which a person, who dies from injuries received from another, or
whose death is caused by the wrongful act, omission, or killing by another, would have had
aga inst th e wro ngd oer in cas e dea th ha d not ensu ed, s hall no t aba te or b e ext inguis hed by his
dea th, bu t sha ll pass to his wido w, an d in ca se th ere is no wid ow, to his ch ildren , or to h is
personal representative, for the benefit of his widow or next of kin . . ." 1877 Tenn. Pub. Acts, ch.
78.
5
right of action arising hereafter based on the wrongful act or
omission of another, except actions for wrongs affecting the
character, be abated by the death of the party wronged; but the
right of action shall pass in like manner as [described in Tenn.
Code Ann. § 20-5-106].
Moreover, Tenn Code Ann. § 20-5-106, the modern version of the 1877
statute, provides in part:
The right of action which a person, who dies from injuries received
from another, or whose death is caused by the wrongful act,
omission, or killing by another, would have had against the
wrongdoer, in case death had not been ensued, shall not abate or
be extinguished by the person's death but shall pass to the
person's surviving spouse and, in case there is no surviving
spouse, to the person's children or next of kin; or to the person's
personal representative, for the benefit of the person's surviving
spouse or next of kin.
Tenn. Code Ann. § 20-5-106(a). Thus, an examination of the development of
Tennessee's wrongful death law, from its inception to the present, establishes
that the right of recovery in a wrongful death case is strictly a creation of statute.
See Hogan v. McDaniel, 319 S.W.2d 221, 222-23 (Tenn. 1958); Jamison v.
Memphis Transit Management Co., 381 F.2d 670, 673 (6th Cir. 1967).
Because a cause of action for wrongful death is a creation of statute,
recoverable damages must be determined by reference to the particular statute
involved. Although all states have abolished the rule of non-liability when
personal injury results in death, the statutory methods of doing so fall into two
distinct categories - wrongful death statutes and survival statutes. See Sea-Land
Serv., Inc. v. Gaudet, 414 U.S. 573, 575 n.2 (1974).
The majority of states have enacted "survival statutes." These statutes
permit the victim's cause of action to survive the death, so that the victim,
through the victim's estate, recovers damages that would have been recovered
6
by the victim had the victim survived. Sea-Land, 414 U.S. at 575 n.2; Recovery
for Wrongful Death at § 1:15; Prosser, § 126, at 942-43. Survival statutes do not
create a new cause of action; rather, the cause of action vested in the victim at
the time of death is transferred to the person designated in the statutory scheme
to pursue it, and the action is enlarged to include damages for the death itself.
Prosser, § 126, at 942-43. "[T]he recovery is the same one the decedent would
have been entitled to at death, and thus included such items as wages lost after
injury and before death, medical expenses incurred, and pain and suffering," and
other appropriate compensatory damages suffered by the victim from the time of
injury to the time of death. Id. at 943.
In contrast to survival statutes, "pure wrongful death statutes" create a
new cause of action in favor of the survivors of the victim for their loss
occasioned by the death. Recovery for Wrongful Death at § 1:13; William T.
Gamble, Actions for Wrongful Death in Tennessee, 4 Vand. L. Rev. 289, 290
(1950). These statutes proceed "on the theory of compensating the individual
beneficiaries for the loss of the economic benefit which they might reasonably
have expected to receive from the decedent in the form of support, services or
contributions during the remainder of [the decedent's] lifetime if [the decedent]
had not been killed." Prosser, § 127, at 949. Hence, most wrongful death
jurisdictions have adopted a "pecuniary loss" standard of recovery, allowing
damages for economic contributions the deceased would have made to the
survivors had death not occurred and for the economic value of the services the
deceased would have rendered to the survivors but for the death. Recovery for
Wrongful Death at § 3:1.
Tennessee's approach to providing a remedy for death resulting from
personal injury is a hybrid between survival and wrongful death statutes,
resulting in a statutory scheme with a "split personality." 27 Tenn. L. Rev. at
7
454. The pertinent damages statute, Tenn. Code Ann. § 20-5-113, has been in
existence in one form or another since 1883.7 It provides:
Where a person's death is caused by the wrongful act, fault, or
omission of another, and suit is brought for damages . . . the party
suing shall, if entitled to damages, have the right to recover the
mental and physical suffering, loss of time, and necessary
expenses resulting to the deceased from the personal injuries, and
also the damages resulting to the parties for whose use and
benefit the right of action survives from the death consequent
upon the injuries received.
Tenn. Code Ann. § 20-5-113 (emphasis added).
The plain language of Tenn. Code Ann. § 20-5-113 reveals that it may be
classified as a survival statute because it preserves whatever cause of action
was vested in the victim at the time of death. Jones v. Black, 539 S.W.2d 123
(Tenn. 1976); Milligan v. American Hoist & Derrick Co., 622 F. Supp. 56, 59
(W.D. Tenn. 1985). The survival character of the statute is evidenced by the
language "the party suing shall have the right to recover [damages] resulting to
the deceased from the personal injuries." Thrailkill v. Patterson, 879 S.W.2d
836, 841 (Tenn. 1994) (emphasis added). Tennessee courts have declared that
the purpose of this language is to provide "for the continued existence and
passing of the right of action of the deceased, and not for any new, independent
cause of action in [survivors]." Whaley v. Catlett, 53 S.W. 131, 133 (Tenn.
1899); see also Herrell v. Haney, 341 S.W.2d 574, 576 (Tenn. 1960); Memphis
St. Ry. Co. v. Cooper, 313 S.W.2d 444, 447-48 (Tenn. 1958); Jamison v.
Memphis Transit Management Co., 381 F.2d 670, 673 (6th Cir. 1967).
Accordingly, Tenn. Code Ann. § 20-5-113 "in theory, preserve[s] the right of
action which the deceased himself would have had, and . . . [has] basically been
construed as falling within the survival type of wrongful death statutes for over a
7
See 1883 Tenn. Pub. Acts, ch. 186.
8
century" because it continues that cause of action by permitting recovery of
damages for the death itself. Jones, 539 S.W.2d at 123-25.
Notwithstanding the accurate, technical characterization of Tenn. Code
Ann. § 20-5-113 as survival legislation, the statute also creates a cause of action
that compensates survivors for their losses. The statute provides that damages
may be recovered "resulting to the parties for whose use and benefit the
right of action survives from the death." Id. (emphasis added). Hence,
survivors of the deceased may recover damages for their losses suffered as a
result of the death as well as damages sustained by the deceased from the time
of injury to the time of death. Jones, 539 S.W.2d at 124 (Tennessee's wrongful
death legislation provides "for elements of damages consistent with a theory of
survival of the right of action of the deceased but also allows damages consistent
. . . with the creation of a new cause of action in the beneficiaries."). Our inquiry
shall focus on whether survivors should be permitted to recover consortium
losses.
LOSS OF SPOUSAL CONSORTIUM
In 1903, this Court held in Davidson Benedict Co. v. Severson, 72 S.W.
967 (Tenn. 1903), that consortium damages were not available under
Tennessee's wrongful death statute. The plaintiff urges this Court to revisit and
reverse the holding in Davidson based on the following assertions: (1) that the
Davidson holding was contrary to the plain language of the wrongful death
statute; (2) that permitting consortium damages in personal injury but not in
wrongful death cases is illogical; (3) that the majority of jurisdictions now permit
loss of consortium damages in wrongful death cases; and (4) that the doctrine
of stare decisis should not commit this Court "to the sanctification of ancient
fallacy." Upon careful review, we agree with the plaintiff.
9
STARE DECISIS AND STATUTORY CONSTRUCTION
The defendant urges this Court to decline revisiting the issue of the
availability of consortium damages under Tenn. Code Ann. § 20-5-113 on the
basis of stare decisis. "Were we to rule upon precedent alone, were stability the
only reason for our being, we would have no trouble with this case. . . . In so
doing we would have vast support from the dusty books. But dust [from] the
decision would remain in our mouths through the years ahead, a reproach to law
and conscience alike. Our oath is to do justice, not to perpetuate error."
Montgomery v. Stephan, 101 N.W.2d 227, 229 (Mich. 1960).
The defendant asserts that any "change to the meaning of Tenn. Code
Ann. § 20-5-113 should be left to the legislature." The issue before us, however,
involves a matter of statutory interpretation and not the implementation of public
policy.
Next, the defendant argues that the wrongful death statute is in derogation
of the common law and, therefore, should be strictly construed. The defendant
maintains that interpreting the wrongful death statute to permit recovery of
"parental consortium claims . . . would be to afford the statute a liberal
construction."
Issues of statutory construction are questions of law and shall be
reviewed de novo without a presumption of correctness. Beare Co. v.
Tennessee Dep't of Revenue, 858 S.W.2d 906, 907 (Tenn. 1993); Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). Statutes in
derogation of the common law are generally strictly construed. The rule requiring
strict construction amounts to a recognition of a presumption against the
legislature's intention to change existing law. Stem. v Nashville Interurban Ry.,
10
221 S.W. 192, 195 (Tenn. 1920). Remedial statutes, however, generally reflect
a legislative intent to amend an area of the common law and shall be construed
liberally. Id.
This Court's role in statutory interpretation is to ascertain and to effectuate
the legislature's intent. State v. Sliger, 846 S.W.2d 262, 263 (Tenn. 1993).
Generally, legislative intent shall be derived from the plain and ordinary meaning
of the statutory language when a statute's language is unambiguous. Carson
Creek Vacation Resorts, Inc. v. Department of Revenue, 865 S.W.2d 1, 2 (Tenn.
1993). When a statute's language is ambiguous and the parties legitimately
derive different interpretations, we must look to the entire statutory scheme to
ascertain the legislative intent. Owens v. State, 908 S.W.2d 923, 926 (Tenn.
1995).
The defendant argues that this Court has previously held that Tenn. Code
Ann. § 20-5-113 is a survival statute and that survival statutes generally do not
permit recovery under consortium theories. While this Court in Jones v. Black,
539 S.W.2d 123 (Tenn. 1976), previously classified Tennessee's wrongful death
statute as a survival statute for purposes of limitations of action, we are not
confined to interpret the statute according to the strictures of a judicially imposed
classification when such an interpretation would ignore unambiguous statutory
language. Accordingly, our analysis of Tenn. Code Ann. § 20-5-113 shall focus
on the statute's language and not on what damages "survival" statutes in other
states generally permit. It must be remembered that, notwithstanding the
accurate, technical characterization of Tenn. Code Ann. § 20-5-113 as survival
legislation, the statute also provides for a cause of action that compensates
survivors for their losses.
11
Damages under our wrongful death statute can be delineated into two
distinct classifications. Thrailkill v. Patterson, 879 S.W.2d 836 (Tenn. 1994);
Davidson Benedict Co. v. Severson, 72 S.W.2d 967 (Tenn. 1903). The first
classification permits recovery for injuries sustained by the deceased from the
time of injury to the time of death. Damages under the first classification include
medical expenses, physical and mental pain and suffering, funeral expenses,
lost wages, and loss of earning capacity. See Tenn. Code Ann. § 20-5-113
("right to recover the mental and physical suffering, loss of time, and necessary
expenses resulting to the deceased from the personal injuries").
The second classification of damages permits recovery of incidental
damages suffered by the decedent's next of kin. See Tenn. Code Ann.
§ 20-5-113 ("and also the damages resulting to the parties for whose use and
benefit the right of action survives from the death consequent upon the injuries
received.") (emphasis added); see also Thrailkill, 879 S.W.2d at 841; Davidson
Benedict Co., 72 S.W. at 977.8 Incidental damages have been judicially defined
to include the pecuniary value of the decedent's life. Spencer v. A-1 Crane
Serv., Inc., 880 S.W.2d 938, 943 (Tenn. 1994). Pecuniary value has been
judicially defined to include "the expectancy of life, the age, condition of health
and strength, capacity for labor and earning money through skill, any art, trade,
profession and occupation or business, and personal habits as to sobriety and
industry." Id. Pecuniary value also takes into account the decedent's probable
living expenses had the decedent lived. Wallace v. Couch, 642 S.W.2d 141
(Tenn. 1982); Hutton v. City of Savannah, 968 S.W.2d 808, 811-12 (Tenn. Ct.
App. 1997).
8
"It is thus apparent from the authorities that there are ... two classes of damages
recoverable in the same a ction. First, damages purely for the injury to the deceased himself;
sec ond , the in cide ntal d am age s su ffere d by th e wid ow a nd ch ildren , or ne xt of k in, fro m h is
death." Davidson Benedict Co., 72 S.W. at 977.
12
The wrongful death statute neither explicitly precludes consortium
damages nor reflects an intention to preclude consortium damages. The
statute's language does not limit recovery to purely economic losses. To the
contrary, the statute's plain language appears to encompass consortium
damages.
Indeed, this Court has recognized that pecuniary value cannot be defined
to a mathematical certainty as such a definition "would overlook the value of the
[spouse's] personal interest in the affairs of the home and the economy incident
to [the spouse's] services." Thrailkill, 879 S.W .2d at 841. We further believe
that the pecuniary value of a human life is a compound of many elements. An
individual family member has value to others as part of a functioning social and
economic unit. This value necessarily includes the value of mutual society and
protection, i.e, human companionship. Human companionship has a definite,
substantial and ascertainable pecuniary value, and its loss forms a part of the
value of the life we seek to ascertain. While uncertainties may arise in proof
when defining the value of human companionship, the one committing the
wrongful act causing the death of a human being should not be permitted to seek
protection behind the uncertainties inherent in the very situation his wrongful act
has created. Moreover, it seems illogical and absurd to believe that the
legislature would intend the anomaly of permitting recovery of consortium losses
when a spouse is injured and survives but not when the very same act causes a
spouse's death.
We are constrained to interpret statutes so that no part or phrase of a
statute will be rendered inoperative, superfluous, void, or insignificant. Tidwell v.
Collins, 522 S.W.2d 674, 676 (Tenn. 1975). Accordingly, we reverse Davidson
Benedict v. Severson, 72 S.W.2d 967 (Tenn. 1902), to the extent that Davidson
13
Benedict prohibits consideration of spousal consortium losses when calculating
the pecuniary value of a deceased's life under the wrongful death statute.9
LOSS OF PARENTAL CONSORTIUM
The wrongful death statute precludes neither a minor child nor an adult
child from seeking compensation for the child’s consortium losses. Moreover,
Tenn. Code Ann. § 20-5-110 provides that "a suit for the wrongful killing of the
spouse may be brought in the name of the surviving spouse for the benefit of the
surviving spouse and the children of the deceased." This provision when read in
pari materia with Tenn. Code Ann. § 20-5-113 seemingly permits consideration
of parental consortium damages. See Foster v. Jeffers, 813 S.W.2d 449, 451
(Tenn. Ct. App. 1991) (holding all wrongful death statutes must be construed
with reference to one another).
A review of case law in other jurisdictions indicates a trend to expand
consortium claims to include the impairment of a child's relationship with a
parent. Comment, Belcher v. Goins: West Virginia Joins the Distinct Minority of
Jurisdiction in Recognizing a Claim for Loss of Parental Consortium, 94 W. Va.
L. Rev. 261, 262 (1991). In cases involving a parent's death, "[t]he general rule
. . . followed is that a child's loss of nurture, education and moral training which it
probably would have received from a parent wrongfully killed is a pecuniary loss
to be considered as an element of the damages suffered by the child." Recovery
for Wrongful Death at § 3:47 (listing thirty-four jurisdictions so holding). See also
94 Va. L. Rev. at 266 ("Most states . . . allow a surviving . . . child . . . to recover
for loss of consortium where a parent is tortiously killed."); Prosser, § 127, at 952
("Even jurisdictions that have rejected the loss of society or consortium claim, as
9
All cases precluding recovery of spousal conso rtium losses in wrongful death cases are
overruled to the extent they are inconsistent with this opinion.
14
such, have permitted one form of it, namely a loss of guidance and advice that
the decedent would have provided [to the child].").
A basis for placing an economic value on parental consortium is that the
education and training which a child may reasonably expect to receive from a
parent are of actual and commercial value to the child. Accordingly, a child
sustains a pecuniary injury for the loss of parental education and training when a
defendant tortiously causes the death of the child's parent. Moreover, we
recognize that:
"normal home life for a child consists of complex incidences in
which the sums constitute a nurturing environment. When 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.
Still by Erlandson v. Baptist Hosp., 755 S.W.2d 807, 812 (Tenn. App. 1988)
(quoting Hoffman v. Dautel, 368 P.2d 57, 59 (Kan. 1962)).
The additional considerations employed for spousal consortium may be
applicable to parental consortium claims. We agree with the observation of one
court that "companionship, comfort, society, guidance, solace, and protection . . .
go into the vase of family happiness [and] are the things for which a wrongdoer
must pay when he shatters the vase." Spangler v. Helm's New York-Pittsburgh
Motor Exp., 153 A.2d 490 (Penn. 1959).
Adult children may be too attenuated from their parents in some cases to
proffer sufficient evidence of consortium losses. Similarly, if the deceased did
not have a close relationship with any of the statutory beneficiaries, the statutory
beneficiaries will not likely sustain compensable consortium losses or their
consortium losses will be nominal. The age of the child does not, in and of itself,
15
preclude consideration of parental consortium damages. The adult child inquiry
shall take into consideration factors such as closeness of the relationship and
dependence (i.e., of a handicapped adult child, assistance with day care, etc.).
CONCLUSION
We hold that consortium-type damages may be considered when
calculating the pecuniary value of a deceased's life. This holding does not
create a new cause of action but merely refines the term "pecuniary value."
Consortium losses are not to limited to spousal claims but also necessarily
encompass a child's loss, whether minor or adult. Loss of consortium consists of
several elements, encompassing not only tangible services provided by a family
member, but also intangible benefits each family member receives from the
continued existence of other family members. Such benefits include attention,
guidance, care, protection, training, companionship, cooperation, affection, love,
and in the case of a spouse, sexual relations. Our holding conforms with the
plain language of the wrongful death statutes, the trend of modern authority, and
the social and economic reality of modern society.
The decision of the of the trial court granting the defendants' motion to
strike is reversed. Costs of this appeal shall be taxed to the defendants for
which execution may issue if necessary.
JANICE M. HOLDER, JUSTICE
Concurring:
Anderson, C.J.
Drowota, and Birch, J.J.
Russell, Sp.J.
16