Nanke v. Napier

WOLLE, Justice

(dissenting).

I dissent, agreeing rather with those courts that would decide the damage issue here presented not as a policy-based question of black-letter law but rather as a question of fact — whether a plaintiff has proved an allegation of damages. Little more need be said in support of my view than what was said in two cases decided this past year.

In Hartke v. McKelway, 707 F.2d 1544 (D.C.Cir.1983), the court succinctly explained why it believes “the course of greater justice” is to allow a parent to prove that raising an unplanned child constituted compensable damages to that parent:

Usually, of course, it is true that the birth of a healthy child confers so substantial a benefit on its parents as to outweigh the physical, emotional, and financial burdens of bearing and raising it; “else, presumably, people would not choose to multiply so freely,” Troppi 31 Mich.App. at 254, 187 N.W.2d at 517. But when a couple has chosen not to have children, or not to have any more children, the suggestion arises that for them, at least, the birth of a child would not be a net benefit. That is their choice *524and the courts are required to respect it. Cf. Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 726-727, 35 L.Ed.2d 147 (1973) (woman’s right to abortion: “Maternity, or additional offspring, may force upon the woman a distressful life and future.”); Griswold v. Connecticut, 381 U.S. 479, 485-86, 85 S.Ct. 1678, 1682, 1683, 14 L.Ed.2d 510 (1965) (couple’s right to use contraceptives).

707 F.2d at 1552-53.

In University of Arizona v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983), the court decided that in each case the trier of fact should decide whether and to what extent a parent has sustained a net economic loss caused by negligence resulting in the unplanned birth of a child. The court explained:

In reaching our decision, we are influenced greatly by what we perceive to be the uniform rules of damages for all tort cases. . One of the basic principles of damage law is the concept that a wrongdoer may be held liable for all damages which he may have caused and all costs which the victim may sustain as a result of the wrong. Sherlock v. Stillwater Clinic, 260 N.W.2d at 174; Cockrum v. Baumgartner, 95 Ill.2d at 206-07, 69 Ill.Dec. at 175, 447 N.E.2d at 392 (Clark, J. dissenting)_
We see no reason why ordinary damage rules, applicable to all other tort cases, should not be applicable to this situation. By allowing the jury to consider the future costs, both pecuniary and non-pecuniary, of rearing and educating the child, we permit it to consider all the elements of damage on which the parents may present evidence. By permitting the jury to consider the reason for the procedure and to assess and offset the pecuniary and non-pecuniary benefits which will inure to the parents by reason of their relationship to the child, we allow the jury to discount those damages, thus reducing speculation and permitting the verdict to be based upon the facts as they actually exist in each of the unforeseeable variety of situations which may come before the court.

136 Ariz. at 585-86, 667 P.2d at 1300-01.

The majority opinion of this court forecloses the plaintiff from moving beyond the bare allegations of her petition and proving such relevant facts on this issue of damages as her own unique socio-economic circumstances and the reasons why she wished to delay her raising of a child. We have heretofore recognized the unique character of each parent-child relationship that may be involved in the assessment of damages to a parent:

This is a highly personal relationship which must of necessity be decided on a case-by-case basis. When it relates to a parent and child, it depends on all the circumstances important in the lives of a particular parent and a particular child.
[[Image here]]
The assessment of damages is traditionally a jury function. Its decision should be disturbed only for the most compelling reasons.

Pagitt v. City of Keokuk, 206 N.W.2d 700, 703-04 (Iowa 1973) (emphasis in original) (upholding jury’s award to parent in wrongful death action arising from death of two sons).

Because I believe traditional principles of tort law are adequate to the task of instructing a jury on how to reach a fair verdict on the damage issue here presented, I would reverse.