Durepo v. Fishman

533 A.2d 264, 1987 Me. LEXIS 817

• Court: Supreme Judicial Court of Maine
• Decided: October 28, 1987
• Status: Published

Opinions

McKUSICK, Chief Justice.

This case invites us to declare for the first time that in Maine a minor child has an independent right of action for loss of parental consortium against a third person who negligently causes physical injury to his mother. We decline that invitation.

Acting solely on behalf of their minor children Chris and Travis, Patricia Durepo and her husband sued defendant Eric Fish-man, a practicing physician, for the children’s loss of their mother’s “love, society, companionship, guidance and care” by reason of physical injuries suffered by the mother from defendant’s alleged medical malpractice. The Superior Court (Aroos-took County) dismissed the children’s complaint, pursuant to M.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted. We affirm.

“Two characteristics of the claim at issue here are that the injury to the plaintiff [children] occurs as a consequence of an injury to another person, and that this consequential injury is to plaintiffs’] psychic interests rather than to [their] physical person or tangible property.” Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 548, 652 P.2d 318, 321 (1982). In other jurisdictions the majority rule by a wide margin is that stated in Restatement (Second) of Torts § 707A (1977) rejecting a child’s independent cause of action for that indirect injury to his psychic interests. 59 Am.Jur.2d Parent and Child § 96 (1987). See also Sawyer v. Bailey, 413 A.2d 165, 168 (Me.1980) (dictum); Kershner v. Beloit Corp., 611 F.Supp. 943, 946-47 (D.Me.1985). Although some recent cases have departed from the Restatement rule,¹ we do not find any compelling legal principles sweeping us along to permit in Maine a child’s independent recovery in these circumstances. On the contrary, respect for the differing functions and capabilities of the legislative and judicial branches impel us to conclude that on this particular issue we should stay our hand and defer to the legislature’s consideration of the public policy issues involved in the proposed extension of tort liability.

It is true of course that this court would not exceed the scope of its powers as a common law court by newly creating for Maine a child’s cause of action for the loss of parental society and affection. See Potter v. Schafter, 161 Me. 340, 341, 211 A.2d 891, 892 (1965). See also MacDonald v. MacDonald, 412 A.2d 71, 74 n. 4 (Me.1980). But the possession of power does not by itself justify its use. Cf. DeAngelis v. Lutheran Medical Center, 84 A.D.2d 17, 24, 445 N.Y.S.2d 188, 194 (1981), aff'd, 58 N.Y. 2d 1053, 462 N.Y.S.2d 626, 449 N.E.2d 406 (1983). We decline to expand dramatically the common law of Maine in this area in which judicial decree is no substitute for the exhaustive gathering of socio-economic facts and the public debate upon the import of those facts that would occur before the Maine Legislature enacted so sweeping an embellishment on the existing tort law of this state.

As appellants themselves accurately point out, “[a]t its heart, this case involves a question of public policy.” Resolution of that question — whether existing tort liability should be extended to indemnify children for the psychic harm suffered when their parents are negligently injured— turns on a number of policy judgments that can be soundly made only after full consideration of legislative or nonadjudicative facts. Those judgments the elected legislature, directly accountable to the citizens of Maine, is far better situated to make than is the unelected judiciary. As the Supreme Court of Oregon observed in an opinion refusing to recognize the cause of action for loss of parental consortium:

There is another reason not to explain the court’s understanding of the existing state of the law by the court’s views of desirable social policy. Legislators, unlike judges, may change the law at any time ... simply upon changes in personnel and in the political agenda. That is what elections and legislative debates are for.... [Proponents or opponents of a social policy ... should be free to debate the merits untrammeled by a court’s arguments why its view of the existing law represents the better policy.

Norwest v. Presbyterian Intercommunity Hospital, 293 Or. at 553, 652 P.2d at 323-24. The legislature, unlike this court, is institutionally equipped to gather information on the many relevant questions as, for example, (i) whether there is any practical necessity for creating a separate cause of action for a child whose parent has been negligently injured, (ii) what limiting principles as, for example, the age of the child should circumscribe such a cause of action, (iii) what impact would such a cause of action have on insurance rates and other costs to the general public, and (iv) what, if any, limit on allowable damages should be imposed as a matter of social policy. Once the legislature has assembled the answers to these questions, along with all other relevant legislative facts, and has publicly debated the ultimate issue, it can render what is essentially a political judgment: Should Maine have a cause of action of the sort urged here by the appellant plaintiffs and, if so, what should be its contours?

Some proponents of this cause of action argue that it would be anomalous for us to decline to expand the common law to permit a child to recover for loss of consortium when his injured parent remains alive, considering the fact that our Maine wrongful death statute² provides a certain amount of recovery of that same nature if the injured parent dies. Rather than creating an anomaly, the existence of the wrongful death statute as a result of careful legislative decision-making in original enactment and subsequent amendment³ demonstrates the practical wisdom of leaving to the legislature the line-drawing job of defining the scope of tort liability in this area. When as here that job depends so overwhelmingly on socio-economic facts and questions of desirable social policy, rather than on the application of established legal principles, the legislature, not the court, should draw those lines.

The entry is:

Judgment affirmed.

SCOLNIK and CLIFFORD, JJ., concur.

1 . See Hibpshman v. Prudhoe Bay Supply, Inc., 734 P.2d 991 (Alaska 1987); Ferriter v. Daniel O’Connell’s Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980); Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (1981); Hay v. Medical Center Hosp., 145 Vt. 533, 496 A.2d 939 (1985); Ueland v. Reynolds Metals Co., 103 Wash.2d 131, 691 P.2d 190 (1984); Theama v. City of Kenosha, 117 Wis.2d 508, 344 N.W.2d 513 (1984).

2 . To the extent pertinent to this discussion, the Maine wrongful death statute, 18-A M.R.S.A. § 2-804(b) (Supp.1986), provides as follows:

The jury may give such damages as it shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death to the persons for whose benefit the action is brought, and in addition thereto shall give such damages as will compensate the estate of the deceased person for reasonable expenses of medical, surgical and hospital care and treatment and for reasonable funeral expenses, and in addition thereto may give damages not exceeding $50,000 for the loss of comfort, society and companionship of the deceased to the persons for whose benefit the action is brought....

(Emphasis added) The "persons for whose benefit the [wrongful death] action is brought” include a class as broad as heirs of the decedent in absence of a surviving spouse and minor children. Id.

3 . The Maine wrongful death statute contained no provision for the recovery of damages “for the loss of comfort, society and companionship of the deceased" until P.L.1967, ch. 369, which even then did not include a child in the class of its beneficiaries and which limited aggregate recovery to $5,000. The legislature increased that aggregate limit to $10,000 in P.L.1969, ch. 266. Not until P.L.1977, ch. 192, did the legislature adopt the forerunner of our present 18-A M.R.S.A. § 2-804 (quoted in part in note 2), which for the first time permitted damages for psychic loss by children in a wrongful death action; but under that 1977 enactment any recovery for the psychic harm suffered by all beneficiaries of the deceased was limited to $10,000 in the aggregate. The legislature in P.L.1981, ch. 213, raised the ceiling on that aggregate recovery to the present $50,000.

It is also significant that the legislature in the wrongful death statute has provided that every action thereunder shall be brought by the personal representative of the deceased, thereby preventing any tolling of the statute of limitations under 14 M.R.S.A. § 853 (Supp.1986) even though the beneficiaries of any claim for loss of parental consortium are minors. No comparable device for avoiding stale claims by a child after coming of age is available on a court-created cause of action.