Depouw v. Bichette

833 N.E.2d 744, 162 Ohio App. 3d 336, 2005 Ohio 3695

Opinions

Donovan, Judge.

{¶ 1} Jessica Bichette is appealing the judgment of the Montgomery County Common Pleas Court that allowed a jury award to the plaintiff, Megan Depouw, for her husband’s lost wages.

{¶ 2} Jessica Bichette and Megan Depouw were involved in a car accident in April 2001 in Kettering, Ohio. Mrs. Depouw was injured in the accident and was taken to the hospital. After an examination, Mrs. Depouw was released from the hospital with her left arm in a sling, her right arm in a cast, and a fractured collarbone. At the time of the accident, Mr. Depouw was at a hockey game. The police contacted him, and he left the game to go to the hospital. Over the next 11 days, Mr. Depouw took vacation leave from work in order to stay home with Mrs. Depouw and care for her. Mr. Depouw testified that he stayed home to care for Mrs. Depouw because she needed help bathing, going to the bathroom, and other tasks.

{¶ 3} Nearly two years after the accident, the Depouws filed a complaint against Bichette for negligence and loss of consortium due to the accident. Although Bichette admitted negligence, she did dispute the nature and extent of Mrs. Depouw’s injuries and whether her negligence was the proximate cause of those injuries. At trial, Mrs. Depouw sought as part of her damages her husband’s lost wages incurred as a result of his taking time off work to care for her. Mr. Depouw testified that he had missed 98 hours, the equivalent of approximately 12 days of work, because of the accident. As a result of those lost hours, Mr. Depouw testified, he lost wages of $2,787.12. Moreover, Mr. Depouw stated that his income is shared with his wife. Mrs. Depouw’s lost wages were not considered by the jury because she had already been compensated for her lost income by Bichette’s insurer.

{¶ 4} When the matter was submitted to the jury, the jury interrogatory for Mrs. Depouw’s claim contained a blank line captioned “Loss of Thomas Depouw’s Income.” Defense counsel repeatedly objected to the inclusion of this section in the jury interrogatory, but the trial court overruled the objections. The jury returned a verdict for Mrs. Depouw in the amount of $29,825.08 and $5,000 for Mr. Depouw’s loss-of-consortium claim. The jury interrogatory revealed that $2,500.08 of Mrs. Depouw’s damage award was for income lost as a result of Mr. Depouw’s taking time off work to care for his spouse.

{¶ 5} Bichette is now appealing the judgment of the trial court in overruling her objection and allowing the jury to consider as a part of Mrs. Depouw’s damages the lost income incurred by her husband. Bichette raises the following assignment of error.

{¶ 6} “The trial court erred in permitting the jury to consider a husband’s lost wages as a component of damages in his wife’s personal injury claim.”

{¶ 7} Bichette argues that Mrs. Depouw cannot recover for her husband’s lost wages, as they were not actually and personally incurred by her. We disagree.

{¶ 8} In Ohio, if one is injured due to another’s wrong, he should be compensated for all of the damages that he has suffered. Restatement of the Law 2d, Torts (1979), Section 920A, Comment b; Robinson v. Bates, 160 Ohio App.3d 668, 2005-Ohio-1879, 828 N.E.2d 657. “The jury may allow as damages such reasonable amount as it may find that the plaintiff lost, as earnings, as the direct and natural result of the defendant’s negligence, taking into consideration all the evidence concerning the plaintiffs age and physical condition before the injury, and the character of the plaintiffs employment.” 30 Ohio Jurisprudence 3d (2004), Damages, Section 40, citing Mikula v. Balogh (1965), 9 Ohio App.2d 250, 38 O.O.2d 311, 224 N.E.2d 148.

{¶ 9} New cases in Ohio have dealt with the situation in which damages were sought by an injured family member who received gratuitous nursing care from another family member. Griffen v. Cincinnati Realty Co. (1913), 27 Ohio Dec. 585; Cincinnati Omnibus Co. v. Kuhnell (1884), 9 Ohio Dec.Rep. 197; Bowe v. Bowe (1903), 26 Ohio C.C. 409; Rouse v. Riverside Methodist Hosp. (1983), 9 Ohio App.3d 206, 9 OBR 355, 459 N.E.2d 593; Howard v. McKitrick (July 2, 1987), Franklin App. No. 87AP-148, 1987 WL 13837. In Griffen and Bowe, the courts found that the injured party could not recover for the nursing services provided by a family member or for family members’ lost earnings. However, in the Kuhnell decision, the court held that a mother could recover the value of the nursing care she provided to her injured son even though she could not recover the value of what she could have earned working outside the home.

{¶ 10} The position in Griffen and Bowe — that nothing may be recovered for the gratuitous nursing services of family members — has clearly been abandoned in favor of the Kuhnell determination that the wrongdoer should at least be required to compensate the injured party for the value of the nursing services even if they were provided without charge by family members. Rouse, supra; Howard, supra. Rouse examined a situation in which a mother rendered extraordinary nursing services to her daughter, who had been injured in an act of medical negligence. The appellate court determined after a review of several similar cases in other states that the majority of the jurisdictions have found that a parent may recover for the value of nursing services provided to an injured child. Id., at 211, 9 OBR 355, 459 N.E.2d 593. In particular, the Rouse court cited Scanlon v. Kansas City (1935), 336 Mo. 1058, 81 S.W.2d 939. The Scanlon court had determined that the “measure of his recovery is the reasonable value of the services rendered as care and nursing,” even if the family member lost no wages in caring for the injured party. Id. at 1068, 81 S.W.2d 939. The Rouse court found that Ohio courts should “allow a parent to recover from the wrongdoer the reasonable value of the care or attendance which he himself renders to his child as the result of a negligent injury.” Rouse, 9 Ohio App.3d at 212, 9 OBR 355, 459 N.E.2d 593. Nursing services rendered gratuitously by a family member are recoverable as a collateral source, just as the value of nursing services could be recovered if the injured party had health insurance that paid for the services. Howard, supra (finding that an adult child could recover from the wrongdoer for the value of the nursing care she received without charge from her mother).

{¶ 11} We recognize that a majority of state and federal courts that have addressed the situation in which a spouse provides nursing care for an injured plaintiff, often losing wages as a result, have determined that the value to be awarded as damages is the cost of hiring an outside nurse to render the care, not lost wages. Heritage v. Pioneer Brokerage & Sales, Inc. (Alaska 1979), 604 P.2d 1059; Rodriguez v. Bethlehem Steel Corp. (1974), 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669; Strand v. Grinnell Auto. Garage Co. (1907), 136 Iowa 68, 113 N.W. 488; W. Union Tel. Co. v. Morris (1900), 10 Kan.App. 61, 61 P. 972; Jackson v. United States (E.D.Ark.1981), 526 F.Supp. 1149; Redepenning v. Dore (1972), 56 Wis.2d 129, 201 N.W.2d 580; Adams v. Erickson (C.A.10, 1968), 394 F.2d 171; Beckert v. Doble (1926), 105 Conn. 88, 134 A. 154; Byrne v. Pilgrim Med. Group, Inc. (1982), 187 N.J.Super. 386, 454 A.2d 920; Van House v. Canadian N. Ry. Co. (1923), 155 Minn. 65, 192 N.W. 496; Kaiser v. St. Louis Transit Co. (1904), 108 Mo.App. 708, 84 S.W. 199; Salida v. McKinna (1891), 16 Colo. 523, 27 P. 810; Kotsiris v. Ling (Ky.1970), 451 S.W.2d 411; Britton v. Dube (1958), 154 Me. 319, 147 A.2d 452; Howells v. N. Am. Transp. & Trading Co. (1901), 24 Wash. 689, 694-695, 64 P. 786.

{¶ 12} However, a few courts have found that the value of wages lost by a spouse from caring for an injured party may be recoverable from the wrongdoer. Kerns v. Lewis (1929), 249 Mich. 27, 227 N.W. 727 (holding that husband could recover wages lost while caring for his injured wife for six months); Pullman Palace-Car Co. v. Smith (1890), 79 Tex. 468, 14 S.W. 993 (finding that a lower court did not err in awarding damages based on a husband’s lost salary while caring for his injured wife); Keeth v. State (La.App.1993), 618 So.2d 1154 (finding that a wife could recover loss of earnings suffered while caring for her injured spouse).

{¶ 13} In the instant case, Bichette urges this court to align itself with the majority view that the injured party, Mrs. Depouw, cannot recover Mr. Depouw’s lost wages, but rather can recover only the amount it would have cost to hire a home health-care aide. Ohio courts in Rouse, Kuhnell, and Howard have stated that an injured child receiving care from his or her parent could receive as damages the value of the nursing services freely given by the parent. Although the amount the parties received in those cases was the value of the nursing services, not the amount of lost wages, the plaintiffs in Rouse and Howard did not make an argument for receiving the value of lost wages, and Kuhnell was decided long before women routinely worked outside of the home. Thus, Ohio has not firmly established itself with the majority position that the only permissible damage award for care provided by a family member is the cost of the nursing care as if provided by an outsider. A review of the factual situation in this case leads this court to the conclusion that the minority viewpoint is correct and that Mrs. Depouw should be able to recover for her husband’s lost wages.

{¶ 14} When an individual is injured by the negligence of another and requires assistance with basic daily functions, it is not unreasonable for a spouse to prefer the assistance of a loved one over a total stranger, especially for a brief period such as in this case. As a consequence of Bichette’s negligence, the marital income of the Depouws was reduced as a result of Mr. Depouw’s lost wages.

{¶ 15} Mrs. Depouw disputes Bichette’s claim that she did not personally incur a loss as a result of her husband’s providing care. Mrs. Depouw argues that her husband’s wages were joint income and thus her loss as well. R.C. 3103.03(A) provides that “[e]ach married person must support the person’s self and spouse out of the person’s property or by the person’s labor. If a married person is unable to do so, the spouse of the married person must assist in the support so far as the spouse is able.” This statute indicates that spouses in Ohio have a duty to financially support each other and share their income with each other. Therefore, in the instance of a married couple, the loss of one spouse’s wages due to care of an injured spouse is a financial loss to the injured spouse as well as the noninjured spouse. Mr. Depouw had a duty to use his salary to support Mrs. Depouw. Thus, Mrs. Depouw correctly asserts that when Mr. Depouw took off work to care for her, she, as his spouse, lost income for which she could be compensated. Although Mr. Depouw used vacation leave for the time he was away from work, this was still a loss of a financial benefit to the couple. We agree that family income was lost as a result of Mrs. Depouw’s care, and their financial resources clearly would have been reduced by compensating an outside nurse.

{¶ 16} The amount an injured party must spend for nursing care and services needed due to the injury is owed by the wrongdoer. If a family member chooses to render those services, the injured party should be reasonably compensated for those services to the extent that they reduce marital income. In this case, the evidence supports the jury’s determination that Mrs. Depouw required basic care. Mr. Depouw testified that she was unable to go to the bathroom, dress herself, or feed herself. Clearly, Mr. Depouw was entitled to provide the needed care for his wife. Moreover, Bichette as the wrongdoer should not be able to benefit from the fact that Mrs. Depouw had a spouse willing to provide the care to her. Bichette’s negligent actions caused Mrs. Depouw’s injuries and the need for nursing care. Therefore, she is responsible for the loss of income to the Depouws. We cannot agree with Bichette that Mr. Depouw could choose not to stay and care for his injured wife himself but had to hire an outsider to come in and care for her. In particular, in a situation such as this, where Mr. Depouw was absent from work for only 12 days, we cannot say that he was wrong to care for his spouse rather than hire a nurse. Considering the small amount of time Mr. Depouw was off work and the fact that Bichette was responsible for Mrs. Depouw’s injuries and her need for nursing care, we cannot say that the trial court erred in permitting the jury to consider Mr. Depouw’s lost wages without limiting the award to the cost of home health care. Bichette’s assignment of error is without merit and is overruled.

{¶ 17} The judgment of the trial court is affirmed.

Judgment affirmed.

Young, J., concurs. Grady, J., dissents. Frederick N. Young, J., retired, of the Second Appellate District, sitting by assignment.