Gallimore v. Children's Hospital Medical Center

Wright, J.,

dissenting. In the Leviathan, Thomas Hobbes wrote that life is “solitary, poor, nasty, brutish, and short.” Id. at Pt. I, Ch.13. Although it has improved dramatically since 1651, life remains at times most difficult and bad things continue to happen to good people. Regardless of how hard the members of this court may try, we cannot change the reality that in life people suffer injuries that are manifestly irreparable — but we do not necessarily make life better by allowing people to seek financial compensation for every tragedy they suffer. One of the tragedies that money simply cannot cure is the emotional pain caused by an injury to one’s child. I speak from experience on this issue.

I disagree with the majority in four respects. First, I believe that the majority abused its role in our judicial system by overruling recent precedent. The majority compounds this error by doing so in dicta. Second, I believe that the majority is disingenuous when claiming that it is not creating a new right but is simply recognizing an existing one. Third, I believe that we should not now recognize a cause of action for loss of parental consortium. Fourth, although the majority indicates some unwillingness to extend its holding to other relatives of *259an injured child, it gives no reason or guidance for this limitation, and its reference to Gilbert and Sullivan is particularly unhelpful.

I

Today, the court has overruled a case decided but one year ago. See High v. Howard (1992), 64 Ohio St.3d 82, 592 N.E.2d 818. The principal reason that the court reaches a result different than it did last June is that the personnel of the court has changed. Of course the law must evolve and develop over time, but today’s decision is not a product of either evolution or development.

Predictability and consistency are highly valued in our judicial system. In making decisions regarding their affairs, both businesses and individuals rely on this court’s recent judgments and opinions as authoritative statements of the law. Many of our opinions are truly important in that they deal directly with the everyday activities of normal people. For example, our opinions have demarcated the line between free speech and libel, informed parties what sort of agreements cannot be enforced for public policy reasons, and, as in this case, made people (and their insurance carriers) aware of the extent to which they can be held liable for a negligent act. When we decide a case without even a bow toward precedent, we tell people that they cannot rely on our decisions because we may change our minds at any time and without warning. Not only does this prevent people from rationally planning their lives, but it seriously erodes the integrity of this court and the authority of our decisions.

There are certain times that precedent should be overruled, but not simply at the whim of an ever-changing court. In my view, precedent should be overruled in two situations. First, a decision should be overruled when the political, economic, or social assumptions upon which it was based have materially changed; prior decision may no longer be valid if those assumptions are no longer viable. Second, a decision announcing a particular rule, precept, or approach should be overruled if the court later finds that, when applied in the real world, that rule, precept, or approach is unworkable or leads to untoward results. Neither of these two circumstances has been suggested in this case. The assumptions upon which High was based have not changed in the one year since it was decided and it has not been argued that the rule of High is unworkable or has led to unintended results.

A related concern is that the validity of High was not actually presented to the court in this case. Indeed, the majority overrules High in dicta. The issue in High was whether a child could maintain a cause of action for loss of parental consortium. The issue in this case is whether a parent can maintain a cause of action for loss of filial consortium. While closely related, the issues are clearly different. By using this case to overrule High, the majority acts as a legislature *260rather than as a court. The General Assembly may act on any issue that concerns the peace, morals, health, or safety of the people of Ohio. This court, however, is constitutionally limited to deciding only issues directly presented by an individual case. The issue of whether a child can recover for loss of parental consortium is not presented by this case and should not have been reached by the majority.10

Finally, our system of government is designed to be responsive to court decisions that run contrary to the popular will. If a court’s interpretation of the law is perceived to be incorrect, the legislature is free to respond by changing the law. See, e.g., Civil Rights Act of 1991, 105 Stat. 1071, Pub.L. 102-166, Section 1981 note, Title 42, U.S.Code (overruling Wards Cove Packing Co. v. Atonio [1989], 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733).11

I believe that once a- court purports to settle a question of law, it is for the legislature, not this court, to change the law unless one of the two circumstances set forth above occurs. With regard to the question of whether loss-of-consortium damages are available, legislative action is particularly appropriate. The High majority wrote: “the General Assembly may create a new cause of action for loss of parental consortium in cases where a parent is injured but survives the negligent or intentional conduct of a third-party tortfeasor. There is no better example of an issue that should be determined by the legislative process where arguments in support of and opposed to the proposed remedy may be fully aired and debated.” High, supra, 64 Ohio St.3d at 85, 592 N.E.2d at 820. See, also, Powell v. Am. Motors Corp. (Mo.1992), 834 S.W.2d 184, 185 (“If Missouri is to recognize a cause of action for loss of consortium by the children or the parents of an injured party, the decision to do so should be made by the legislature and not by this Court.”). Given the complexity of this issue and the fact that our case law runs strongly against creation of a right to recover for loss of filial *261consortium, I firmly believe that the decision to recognize this cause of action should have been left to the General Assembly.

Today’s abrogation of legislative power solves little. As stated above, in High v. Howard we expressly extended to the General Assembly an invitation to address the issue of loss of consortium as between parents and children. With today’s decision we simply ignore the fact that the legislative body has chosen to take no action1. In our modern legal system, with all of its subtle nuances and fine lines, it is the legislature and not this court that is better equipped to make the decision as to whether new causes of action should be recognized. My hope is that the General Assembly will react to today’s classic example of judicial legislation.

II

I also must take strong exception to the majority’s unsupportable assertion that it is “not creating a new right” but rather “rediscovering a right that has apparently always existed but has never been given full life by this court.” First, I am not at all sure what a “full life” means. Second, the majority does not cite a single case from this court that has permitted a parent to recover for loss of filial consortium. Rather, the majority takes us on a twisting journey through our precedent, hoping, I suppose, that the reader will become too confused to question the majority’s ultimate conclusion.

In “rediscovering” the right to recover for loss of filial consortium, the majority cites five cases decided by this court. In Grindell v. Huber (1971), 28 Ohio St.2d 71, 57 O.O.2d 259, 275 N.E.2d 614, and Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 49 O.O.2d 435, 254 N.E.2d 10, we specifically held that when a minor child is injured by the negligence of another “that single wrong gives rise to two separate and distinct causes of action: an action by the minor child for his personal injuries and a derivative action in favor of the parents of the child for the loss of his services and his medical expenses.” (Emphasis added.) Whitehead supra, at paragraph three of the syllabus. See, also, Grindell, supra, paragraph one of the syllabus. Neither of these cases directly addressed the issue of whether a parent could recover for loss of filial consortium.12 However, the syllabus language of these cases appears to clearly indicate that the court believed the parent’s right to recovery to be limited to two areas: (1) loss of services, and (2) medical expenses.

*262Nor did Kane v. Quigley (1964), 1 Ohio St.2d 1, 30 O.O.2d 1, 203 N.E.2d 338, involve the question of whether a parent could recover for loss of filial consortium. The issue in Kane was whether a child could sue a female “enticer” for loss of the father’s consortium. Kane certainly did not suggest that a parent could seek loss-of-consortium damages. In fact, Kane broadly stated just the opposite: “No right of consortium exists between a parent and a child.” (Emphasis added.) Kane, supra, at 3, 30 O.O.2d at 2, 203 N.E.2d at 339.

In Keaton v. Ribbeck (1979), 58 Ohio St.2d 443, 12 O.O.3d 375, 391 N.E.2d 307, the issue was whether the term “pecuniary injury” in Ohio’s wrongful death statute included “loss of society, comfort and companionship of the decedent.” The court held that it did not. We also expressly observed that no decisions of this court had permitted a parent to seek damages for loss of a child’s society, companionship, or comfort. Id. at 445, 12 O.O.3d at 376, 391 N.E.2d at 309.

In reaching its conclusion, the majority relies on the ancient case of Clark v. Bayer (1877), 32 Ohio St. 299. It writes that a “careful reading of * * * Clark * * * reveals a recognition by this court * * * that such losses might constitute compensable elements of damage.” This suspiciously circumscribed description of Clark is quite misleading. What is true about Clark is, unlike the other Ohio Supreme Court cases the majority cites, it does not specifically reject damages for loss of filial consortium. The most relevant passage in Clark states:

“The right to the custody of the infants, and their services as an incident thereto, is the gravamen of the action. Actual loss of services is not an essential allegation to enable plaintiff to maintain his action.
“But whether damages, other than compensatory, may be recovered, we do not say, for the reason that such question is not necessarily before us now for determination.” (Emphasis added.) Id. at 312-313.

A fair reading of Clark merely reveals the common-law rule that a parent (or guardian) could recover for loss of a child’s services. The majority writes, however, that the view that parents could recover for loss of a child’s “services” is “stagnant and antiquated” and should be abandoned. Given this language, I find it curious indeed that the majority — right in the syllabus — permits parents to continue to recover for loss of a child’s services. If this view truely “harks back to the days when children were thought to have little or no social value other than as laborers and wage-earners,” I would expect the majority would be in a great hurry to abandon it.

I confess that I also do not understand the majority’s logic when it states that, in Clark, loss of “services” meant the same thing as loss of “consortium.” Clark does not say that at all: its plain language is clearly limited to recovery for loss of “services,” the word “consortium” had a specific and generally used meaning at *263the time Clark was decided,13 and the Clark court expressly stated that it did not reach the question of what damages were actually recoverable. In short, the Clark court did not hold that a parent could recover damages for loss of filial consortium; if it had meant so, it would have said so.

After reviewing these five decisions, the majority leads itself to the conclusion “that none of our cases has ever prohibited the parent of a non-fatally injured child from maintaining a derivative action against a third-party tortfeasor for the parent’s loss of filial society, comfort, companionship, etc.” This means, simply, that this, court has never recognized a right to recover for loss of filial consortium. But, not five sentences later, the majority somehow turns this non-recognition into an “apparently long-existing right.”

Ironically, the majority’s disposition of this case belies its claim that it is not creating a new right. It orders that its holdings be applied prospectively. Query whether a “long-existing” right should be recognized “only prospectively”?

The truth is that today, for the first time ever, this court recognizes a right to maintain a cause of action for loss of filial consortium. In doing so we depart from the clear direction of our precedent and the weight of authority from our sister states. If this is what the majority intends, so be it. It is unfortunate, however, that the majority misrepresents the state of the law, here and elsewhere, in an attempt to justify its position.

Ill

The majority attempts to quash potential dissent by using the rhetorical equivalent of a high, inside fastball to keep those who might disagree away from the plate. It describes the point of view it rejects as “anachronistic,” “sterile,” and “out of touch with the realities of our time.” This mean-spirited characterization would no doubt be resented by jurists on, for example, the California, Illinois, Missouri, and Michigan high courts who have adopted just that position.14 In fact, given the line-up of courts that has refused to recognize a filial consortium cause of action under the common law compared to the relatively few courts that have, I suggest that it may be the majority that is out of touch. Not only has it stepped out of the judicial mainstream, but it has paddled almost to *264the Pacific Rim to find the one recent state supreme court case supporting its view.15

Courts in other states have cited numerous persuasive reasons that a cause of action for loss of filial consortium should not be recognized. The major points were well summarized by the California Supreme Court in Baxter v. Superior Court of Los Angeles Cty. (1977), 19 Cal.3d 461, 464, 138 Cal.Rptr. 315, 317, 563 P.2d 871, 873: “The intangible character of the loss, which can never really be compensated by money damages; the difficulty of measuring damages; [and] the dangers of double recovery of multiple claims and of extensive liability.”

Realistically, all must acknowledge that an accurate calculation of damages for loss of filial consortium is next to impossible. See Sizemore v. Smock (1988), 430 Mich. 283, 294-295, 422 N.W.2d 666, 671-672. Jurors are unable to make the cold calculation of how many dollars a child’s love and companionship are worth to a parent. Moreover, in light of the intangible nature of the loss, it is unrealistic to expect a juror “to distinguish between the child’s claim, involving pain and suffering, and the legally distinct but factually similar claim by the parents for loss of the child’s society and companionship.” Dralle v. Ruder (1988), 124 Ill.2d 61, 70, 124 Ill.Dec. 389, 393, 529 N.E.2d 209, 213. Thus, I fear that juries will treat damages for loss of filial consortium as a form of punitive damages. Such damages simply will be used to punish unworthy or poorly represented defendants or to reward particularly sympathetic plaintiffs.

I am also concerned that recognition of another tort will result in higher insurance costs being passed on to the public. “Realistically, the burden of payment for additional consortium awards will be borne by the general public through the assessment of increased insurance premiums * * Sizemore, supra, 430 Mich, at 295, 422 N.W.2d at 672. See, also, Borer v. Am. Airlines, Inc. (1977), 19 Cal.3d 441, 447, 138 Cal.Rptr. 302, 306, 563 P.2d 858, 862. While this reason alone is certainly not sufficient to decline to recognize a cause of action, combined with the other factors it further tips the scale against recognizing filial consortium damages.

Today’s decision also arbitrarily extends loss of consortium from spouses to parents and children. Other relatives of a child may have the same close relationship that a parent has with a child; it is simply a matter of proof. “Grandparents, siblings, and others with close emotional ties to a negligently injured plaintiff undoubtedly would be able to posit an argument just as logical and sympathetic as the parent or child for protection of their consortium interests *265by recognition of similar action in their favor.” Sizemore, supra, 430 Mich, at 296, 422 N.W.2d at 672.

My final, and deepest, objection to recognizing a cause of action for loss of filial consortium is that it “impose[s] higher costs without actually remedying the loss.” Prosser & Keeton on Torts (5 Ed.1984) 934. As a father, I know how much an injury to a child can hurt a loving parent. No amount of money could stop or even reduce that pain. It saddens me that as a society we often believe that money can make everything better. By recognizing this cause of action, my colleagues turn personal tragedy into a stroke of financial good-fortune for a grieving parent and, of course, his or her counsel. But courts — merely instruments of government — have no mystical, divine, or other-worldly ability to alleviate a parent’s grief. The majority writes that allowing a parent to seek monetary damages is the best we can do. I think not, as there is really nothing we can, or indeed should, do.

Accordingly, I respectfully dissent.

. It is notable that the majority dismisses the holding of Kane v. Quigley (1964), 1 Ohio St.2d 1, 30 O.O.2d 1, 203 N.E.2d 338, as having “no precedential value in cases such as the one now before us” because it involved a child seeking damages for loss of parental consortium. The majority thus recognizes that the question of loss of parental consortium and the loss of filial consortium are distinguishable. Why it chooses to ignore its own observation and overrule High, which also involved loss of parental — not filial — consortium, is simply beyond me.

. The Massachusetts legislature, for example, responded to a Massachusetts Supreme Judicial Court ruling that parents could not seek damages for loss of filial consortium by enacting a statute specifically allowing such a cause of action. See Mass.G.L. c. 231, Section 85X (overruling Norman v. Massachusetts Bay Transp. Auth. [1988], 403 Mass. 303, 529 N.E.2d 139). In addition to Massachusetts, other state legislatures have enacted statutes specifically allowing a parent to recover consortium damages for negligent injury to a child. See Idaho Code 5-310; Iowa Code Ann., Rules of Civil Procedure, Rule 8; Wash.Rev.Code 4.24.010.

. Whitehead concerned the question whether a child was collaterally estopped from bringing an action against a defendant his parent had already sued. Grindell concerned whether a defendant could be held liable to a parent for the child’s medical expenses if it is found that the defendant is not liable for the child’s injuries.

. The term “consortium,” as distinguished from “services,” was well known to the judges who decided Clark. One year after Clark v. Bayer was decided, this court discussed at length and in detail the nature of a common-law action for loss of consortium. Westlake v. Westlake (1878), 34 Ohio St. 621. It is notable that Clark v. Bayer was not cited even once in the Westlake opinion’s discussion of loss of consortium.

. Baxter v. Superior Court of Los Angeles Cty. (1977), 19 Cal.3d 461, 138 Cal.Rptr. 315, 563 P.2d 871; Dralle v. Ruder (1988), 124 Ill.2d 61, 124 Ill.Dec. 389, 529 N.E.2d 209; Powell v. Am. Motors Corp. (Mo.1992), 834 S.W.2d 184; Sizemore v. Smock (1988), 430 Mich. 283, 422 N.W.2d 666.

. See majority opinion at fn. 9 (citing Masaki v. Gen. Motors Corp. [1989], 71 Haw. 1, 780 P.2d 566).