High v. Howard

592 N.E.2d 818, 64 Ohio St. 3d 82

Opinions

Moyer, C.J.

In a recent decision of this court, we noted that it was not yet the propitious time to review the issue of whether a child may maintain a cause of action for loss of parental consortium against a tortfeasor who negligently or intentionally injures the child’s parent. Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 94, 585 N.E.2d 384, 393. Now is such time. Appellants urge us to recognize a cause of action for loss of parental consortium. We decline to create such a cause of action.

This court has previously refused to recognize a cause of action by a child for loss of parental consortium. In Kane v. Quigley (1964), 1 Ohio St.2d 1, 30 O.O.2d 1, 203 N.E.2d 338, this court stated that there is no common-law or statutory basis for a child’s claim for loss of parental consortium. Kane involved a claim by children that the defendant had induced their father to abandon his family. The court concluded that “[t]here is no legal right in a child to maintain * * * an action for alienation of affections since that cause of action is based upon the right of consortium.” Id. at 3, 30 O.O.2d at 2, 203 N.E.2d at 340. Kane has generally been followed by Ohio appellate courts. Masitto v. Robie (1985), 21 Ohio App.3d 170, 21 OBR 181, 486 N.E.2d 1258; Sanders v. Mt. Sinai Hospital (1985), 21 Ohio App.3d 249, 21 OBR 292, 487 N.E.2d 588; Viock v. Stowe-Woodward Co. (Mar. 14, 1986), Erie App. No. E-84-27, unreported, 1986 WL 3254; and Kukarola v. Gualtieri (Jan. 18, 1989), Summit App. No. 13637, unreported, 1989 WL 3904. See, also, Gibson v. Johnston (App.1956), 75 Ohio Law Abs. 413, 144 N.E.2d 310, appeal dismissed (1957), 166 Ohio St. 288, 2 O.O.2d 174, 141 N.E.2d 767. But, see, Farley v. Progressive Cas. Ins. Co. (Feb. 21, 1992), Lucas App. No. L-90-323, unreported, 1992 WL 32111.

Appellants contend that we should now recognize such a cause of action to eliminate the anomaly in the law that a child whose parent is killed by a tortfeasor is permitted to recover for his or her loss under the wrongful-death statute, whereas a child whose parent is severely injured but is not killed can recover nothing. Such an argument on its face is persuasive. However, it does not survive close analysis. Appellants’ claim is significantly different from a wrongful-death claim. A child’s claim for loss of companionship, love, association, moral support, and guidance (appellants’ claim) rests upon a moral obligation, not an obligation enforceable in law. As the court in Kane noted: “A child may indeed expect that his parent will have affection for him. This may be a moral obligation, but no legal obligation exists. The sole legal obligation imposed upon the parent is that of support.” Kane, supra, 1 Ohio St.2d at 3, 30 O.O.2d at 2, 203 N.E.2d at 339.

Moreover, unlike the case where a child’s parent is killed, appellants’ father is still living and can assert a claim of his own for his injuries. If a parent is compensated for loss of earnings and inability to care for his or her children, a child’s injury resulting from the parent’s duty to support the child will also be remedied. Where a parent does not survive an accident, the means by which a child can recover compensation for the loss of a parent’s support and services is through a wrongful-death action.

Appellants also urge us to recognize such a cause of action because courts in other states have done so. As noted in Bowen, supra, 63 Ohio St.3d at 94, 585 N.E.2d at 393, fns. 9 and 10, the highest courts of a number of states have recognized a cause of action for loss of parental consortium against a tortfeasor,¹ while a number have expressly declined to recognize such an action.² Numerous legal commentators have supported the recognition of this cause of action.³ However, we believe the view of a majority of states refusing to recognize such a cause of action in the absence of legislation is the better view and is consistent with the prior decision of this court in Kane.

There are a number of policy reasons for not creating a cause of action in a minor child for loss of consortium of a severely injured parent. The court in Kane, supra, at 3, 30 O.O.2d at 2, 203 N.E.2d at 339, noted the following: “Several reasons have been advanced as justifying the refusal to allow recovery by children, i.e., that this invades the province of the Legislature, that there is a danger of multiplicity of suits, that there is a possibility of fraud, and that it would place the love and affection of the parent on a commercial basis.” Other courts have emphasized additional reasons for not recognizing the cause of action. These include the absence of any enforceable claim on the child’s part to the parent’s services, the absence of precedent, the possible overlap with the parent’s recovery, the possibility of upsetting settlements between tortfeasors and parents, the increase of insurance costs, and the public policy expressed in some jurisdictions in the enactment of “heart balm” statutes. Clark v. Suncoast Hosp., Inc. (Fla.App.1976), 338 So.2d 1117, 1118-1119, citing Note (1956), 54 Mich.L.Rev. 1023, 1024-1025.

Finally, we decline to recognize a new cause of action for loss of parental consortium because we believe the responsibility for changing public policy to permit recovery for loss of parental consortium rests with the General Assembly, not this court. The General Assembly has provided for recovery upon proper proof for the loss of support, services, society, prospective inheritance and mental anguish in a wrongful-death action. R.C. 2125.02(B). Under its constitutional powers, 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.

Appellants also seek recovery for the emotional distress suffered by them as a result of their father’s injuries. In the absence of statutory provision therefor, Ohio courts have limited recovery for negligent infliction of emotional distress to such instances as where one was a bystander to an accident or was in fear of physical consequences to his own person. Paugh v. Hanks (1983), 6 Ohio St.3d 72, 6 OBR 114, 451 N.E.2d 759; Criswell v. Brentwood Hosp. (1989), 49 Ohio App.3d 163, 551 N.E.2d 1315. Therefore, because appellants’ claim does not arise out of such circumstances, they fail to state a claim for emotional distress under Ohio law.

For the foregoing reasons, we hold that under Ohio law, a child does not have a cause of action for loss of consortium against a third-party tortfeasor who negligently or intentionally injures the child’s parent.

Therefore, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Holmes, Wright and H. Brown, JJ., concur. Sweeney, Douglas and Resnick, JJ., dissent.

Footnotes

1

. See, e.g., Hibpshman v. Prudhoe Bay Supply, Inc. (Alaska 1987), 734 P.2d 991; Villareal v. State Dept. of Transp. (1989), 160 Ariz. 474, 774 P.2d 213; Ferriter v. Daniel O’Connell’s Sons, Inc. (1980), 381 Mass. 507, 413 N.E.2d 690; Berger v. Weber (1981), 411 Mich. 1, 303 N.W.2d 424; Williams v. Hook (Okla.1990), 804 P.2d 1131; Reagan v. Vaughn (Tex.1990), 804 S.W.2d 463; Hay v. Medical Ctr. Hosp. of Vermont (1985), 145 Vt. 533, 496 A.2d 939; Ueland v. Reynolds Metals Co. (1984), 103 Wash.2d 131, 691 P.2d 190; Belcher v. Goins (1990), 184 W.Va. 395, 400 S.E.2d 830; Theama v. Kenosha (1984), 117 Wis.2d 508, 344 N.W.2d 513; Nulle v. Gillette-Campbell Cty. Joint Powers Fire Bd. (Wyo.1990), 797 P.2d 1171. See, also, Higley v. Kramer (La.App.1991), 581 So.2d 273, writ denied (1991), 583 So.2d 483; and Pence v. Fox (1991), 248 Mont. 521, 813 P.2d 429.

2

. See, e.g., Gray v. Suggs (1987), 292 Ark. 19, 728 S.W.2d 148; Lee v. Colorado Dept. of Health (Colo.1986), 718 P.2d 221; Zorzos v. Rosen (Fla.1985), 467 So.2d 305; Dearborn Fabricating & Engineering Corp., Inc. v. Wickham (Ind.1990), 551 N.E.2d 1135; Schmeck v. Shawnee (1982), 231 Kan. 588, 647 P.2d 1263; Durepo v. Fishman (Me.1987), 533 A.2d 264; Salin v. Kloempken (Minn.1982), 322 N.W.2d 736; Russell v. Salem Transp. Co., Inc. (1972), 61 N.J. 502, 295 A.2d 862; Vaughn v. Clarkson (1989), 324 N.C. 108, 376 S.E.2d 236; Morgel v. Winger (N.D.1980), 290 N.W.2d 266; and Norwest v. Presbyterian Intercommunity Hosp. (1982), 293 Ore. 543, 652 P.2d 318. See, also, Borer v. American Airlines, Inc. (1977), 19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858; Hinde v. Butler (1979), 35 Conn.Supp. 292, 408 A.2d 668; Jones v. Lifespring, Inc. (D.D.C.1988), 713 F.Supp. 426; W.J. Bremer Co., Inc. v. Graham (1983), 169 Ga.App. 115, 312 S.E.2d 806, writ denied (1984), 252 Ga. 36, 312 S.E.2d 787; Green v. A.B. Hagglund & Soner (D.Idaho 1986), 634 F.Supp. 790; Van de Veire v. Sears, Roebuck & Co. (1989), 178 Ill.App.3d 794, 127 Ill.Dec. 912, 533 N.E.2d 994; Annis v. Butler Mfg. Co. (D.Kan.1989), 715 F.Supp. 328; Gaver v. Harrant (1989), 316 Md. 17, 557 A.2d 210; Barbera v. Brod-Dugan Co. (Mo.App.1989), 770 S.W.2d 318; Hoesing v. Sears, Roebuck & Co. (D.Neb. 1980), 484 F.Supp. 478; DeAngelis v. Lutheran Med. Ctr. (1983), 58 N.Y.2d 1053, 462 N.Y.S.2d 626, 449 N.E.2d 406; Steiner v. Bell Tel. Co. (1986), 358 Pa.Super. 505, 517 A.2d 1348, affirmed (1988), 518 Pa. 57, 540 A.2d 266; Still v. Baptist Hosp., Inc. (Tenn.App.1988), 755 S.W.2d 807; and Wollam v. Kennecott Corp. (D.Utah 1986), 648 F.Supp. 160.

3

. Prosser & Keeton on Torts (5 Ed.1984) 935-936, Section 125; Comment, What About the Children? Toward an Expansion of Loss of Consortium Recovery in the District of Columbia (1991), 41 Am.U.L.Rev. 107; Note, Parental Consortium in Florida: Our Children Have No Place to Turn (1988), 13 Nova L.Rev. 295; Lambert, Damages: Loss of Parental Consortium (1987), 30 ATLA L.Rep. 244, 253; Comment, Loss of Parental Consortium: Why Children Should be Compensated (1986), 18 Pac.LJ. 233; Note, The Child’s Cause of Action for Loss of Consortium (1977), 5 San Fem.V.L.Rev. 449; Love, Tortious Interference with the Parent-Child Relationship: Loss of an Injured Person’s Society and Companionship (1976), 51 Ind.LJ. 590; Note, The Child’s Right to Sue for Loss of a Parent’s Love, Care, and Companionship Caused by Tortious Injury to the Parent (1976), 56 B.U.L.Rev. 722; Comment, The Child’s Claim for Loss of Consortium Damages: A Logical and Sympathetic Appeal (1975), 13 San Diego L.Rev. 231.