Siciliano v. Capitol City Shows, Inc.

475 A.2d 19, 124 N.H. 719, 1984 N.H. LEXIS 347

• Court: Supreme Court of New Hampshire
• Decided: April 9, 1984
• Docket: No. 83-160
• Status: Published

Opinions

Batchelder, J.

The plaintiffs appeal from a decision of the superior court which dismissed their actions claiming damages for the parental loss of a child’s society, and their actions alleging strict liability against the defendant Capitol City Shows, Inc. We affirm.

These actions arose from an amusement ride accident which occurred on July 1, 1981, at a carnival in North Conway. The defendant Capitol City Shows, Inc. was the amusement ride operator, the defendant Empire Fire and Marine Insurance Company was the insurer of the ride, and the defendant Richard Tracy allegedly inspected the ride prior to the accident. As a result of the accident, Veronica Siciliano, a minor, sustained cerebral injury and Lisa Santuccio, also a minor, died.

Arnoldo Siciliano, as the father and next friend of Veronica Siciliano, and John Santuccio, as administrator of the estate of Lisa Santuccio, initiated actions seeking damages from all the defendants on the ground of negligence and against Capitol City Shows, Inc. on the additional ground of strict liability. Also, the parents of each minor child initiated their own lawsuit against all the defendants, claiming damages for the loss of society of the respective children.

The Superior Court (Wyman, J.), upon the recommendation of the Master (Charles T. Gallagher, Esq.), dismissed the strict liability counts against Capitol City Shows, Inc. Additionally, the court dismissed the counts seeking recovery by the Santuccios for the loss of society of their daughter and denied the Sicilianos’ motion to amend their complaint to recover for the loss of society of their daughter. The dismissals were based on the plaintiffs’ failure to state causes of action.

The plaintiffs first ask this court to create a cause of action for parental loss of society of a minor child injured or killed as a result of negligent conduct. They argue that recognition of such a cause of action is a natural extension of common law- and will reaffirm this State’s proclaimed interest in the preservation of the family relationship.

In the abstract, the plaintiffs’ claim carries enormous sympathetic appeal. No one can deny the loss a parent must feel when deprived, even temporarily, of the comfort and companionship of a child. Indeed, this court has recognized the importance of maintaining the integrity of the family relationship. See, e.g., State v. Robert H._, 118 N.H. 713, 715-16, 393 A.2d 1387, 1388-89 (1978). However, not every “foreseeable injury to a legally recognized relationship necessarily postulates a cause of action . ...” Borer v. American Airlines, Inc., 138 Cal. Rptr. 302, 305, 19 Cal. 3d 441, 446, 563 P.2d 858, 861 (1977).

In New Hampshire, two common-law causes of action arise when a minor child is injured by the negligent act of another: one by the child for personal injuries; another by a parent for pecuniary damages, such as loss of services and expenses caused by the injury to the child. Heath v. Seymour, 110 N.H. 425, 429, 270 A.2d 602, 605 (1970). A parent may recover for the loss of a child’s services because he or she is entitled to the services of a minor child. Beaudoin v. Beaudoin, 118 N.H. 325, 327, 386 A.2d 1261, 1263 (1978). This parental right grows out of the obligation of the parent to support and educate the child and is contingent upon the parent actually retaining custody of and supporting the child. Lessard v. Company, 83 N.H. 576, 578, 145 A. 782, 784 (1929); Hillsborough v. Deering, 4 N.H. 86, 95 (1827); see Hammond v. Corbett, 50 N.H. 501, 505, 507-08 (1871). This parental right has been compared to the right of a master to recover against anyone who interferes with the master-servant relationship. See Whitaker v. Warren, 60 N.H. 20, 26 (1880); see also Sargent v. Mathewson, 38 N.H. 54, 57-58 (1859); Campbell v. Cooper, 34 N.H. 49, 68 (1856) (both cases involve enticing and harboring-plaintiff’s servant); Davidson v. Goodall, 18 N.H. 423, 426 (1846) (seduction of plaintiff’s servant).

Therefore, at common law, based on the parental obligation to maintain a child, a parent could recover for pecuniary losses incurred as a result of a negligently inflicted injury to that child. A parent was not entitled to recover for his or her independent or intangible injuries resulting from the negligent injury to a child. See Courage v. Carleton, 96 N.H. 348, 350, 77 A.2d 111, 113 (1950). Thus, the common-law cause of action for loss of a child’s services does not argue for the expansion of liability flowing from a single tortious act.

Generally, at common law,

“negligence as a legal source of liability gives rise only to an obligation to compensate the person immediately injured, not anyone who predictably suffers loss in consequence of that injury, unless liability for that person’s consequential loss has a legal source besides its foreseeability.”

Norwest v. Presbyterian Intercommunity Hosp., 652 P.2d 318, 333 (Or. 1982). In this case, we are asked to extend the liability of a negligent tortfeasor to cover harm to a plaintiff which occurs as a consequence of an injury to a third party, when that harm is emotional and unrelated to any injury to the plaintiff’s physical person or tangible property.

The determination whether so to extend liability arising from a single tortious act must be based on public policy considerations, with reference to judicial and statutory precedent. See Corso v. Merrill, 119 N.H. 647, 654, 406 A.2d 300, 304-05 (1979); see also Baxter v. Superior Court of Los Angeles Cty., 138 Cal. Rptr. 315, 317, 19 Cal. 3d 461, 464, 563 P.2d 871, 873 (1977); DeAngelis v. Lutheran Medical Center, 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 627-28, 449 N.E.2d 406, 407-08 (1983).

Compelling public policy reasons militate against this court’s recognizing a cause of action allowing parents to recover for loss of a child’s society. Loss of a child’s society is an intangible, nonpecuniary loss which can never properly be compensated by money damages. The emotional nature of the loss makes defining and quantifying damages difficult, which may lead to disproportionate awards. We also note the probability of increased litigation and multiple claims, which will hinder settlements and increase expenses. See Curtis v. County of Cook, 109 Ill. App. 3d 400, 409, 440 N.E.2d 942, 948 (1982); Baxter v. Superior Court of Los Angeles Cty. supra. “Additionally, the social burden of providing damages for this loss will ultimately be borne by the public through increased insurance premiums or in the enhanced danger that accrues from the greater number of people who will choose to go without insurance.” Koskela v. Martin, 91 Ill. App. 3d 568, 572, 414 N.E.2d 1148, 1151 (1980); Borer v. American Airlines, Inc., 138 Cal. Rptr. 302, 306, 19 Cal. 3d 441, 447, 563 P.2d 858, 862 (1977).

However, this court has allowed recovery for some intangible losses suffered by the secondary victim. Therefore, it is necessary to examine those cases to determine if they support the recognition of a new cause of action regardless of public policy reasons against such a result.

An action for loss of spousal consortium during the survival of the injured spouse may be compared to the action the plaintiffs urge us to recognize. In New Hampshire, a husband had a common-law cause of action for loss of consortium caused by injuries inflicted upon his wife. Guevin v. Railway, 78 N.H. 289, 296, 99 A. 298, 302 (1916). The term “consortium” was used to describe the husband’s marital rights and included three elements — services, society and sexual rights. Id. at 294, 99 A. at 301. Because the cause of action was based on the marital relationship and not on a master-servant relationship, the husband could recover for loss of impairment to any element; it was not necessary for the husband first to prove loss of services in order to recover. Id. at 295, 99 A. at 302.

At common law, a wife had no marital rights and thus, in Snodgrass v. Cherry-Burrell Co., 103 N.H. 56, 164 A.2d 579 (1964), we held that she could not recover for negligent injury to the marital relationship. It was the legislature in 1967 which, seeking to provide equality between the sexes, conferred upon a wife the right to recover damages for loss or impairment of consortium. RSA 507:8-a; N.H.S. Jour. 626 (1967).

Significant distinctions may be drawn between loss of marital consortium and loss of a child’s society. First, many courts have been more willing to protect the relationship between husband and wife than that between parent and child. Brennan v. Biber, 93 N.J. Super. 351, 367, 225 A.2d 742, 751 (1966), aff'd, 99 N.J. Super. 247, 239 A.2d 261 (1968). Second, loss of marital consortium includes impairment of the sexual life of a married couple, which is not an element of the parent-child relationship. Guevin v. Railway supra; see also Koskela v. Martin, 91 Ill. App. 3d 568, 572, 414 N.E.2d 1148, 1151 (1980); Borer v. American Airlines, Inc., 138 Cal. Rptr. 302, 307, 19 Cal. 3d 441, 448, 563 P.2d 858, 863 (1977).

Our reasoning and holding in Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979), which we reaffirm today, also may be compared to the present case. In Corso, this court, based on traditional negligence principles, expanded recovery in actions based on negligent infliction of emotional distress to plaintiffs outside the zone of danger. Id. at 659, 406 A.2d at 308. We recognized that freedom from mental distress is an interest worthy of legal protection. Yet, before allowing recovery, this court examined public policy concerns of unlimited and burdensome liability and balanced these concerns against the interests of the plaintiff. Id. at 654, 406 A.2d at 305.

In Corso, we determined, based on California’s experience, that the expansion of recovery to plaintiffs outside the zone of danger would not lead to unlimited liability if well-defined foreseeability factors were adopted. Id. at 656, 406 A.2d at 306. These well-defined foreseeability factors include proximity of time, location and relationship, and allow recovery only to parents whose emotional distress results from a direct emotional impact upon them through their sensory perceptions contemporaneous with the accident. In the case before us, there are no such well-defined limiting factors. Additionally, the plaintiff in an action for negligent infliction of emotional distress must manifest physical symptoms, id., making damages easier to assess than when an injury is purely intangible, as in the instant cases.

In Plante v. Engel, 124 N.H. 213, 469 A.2d 1299 (1983), this court recognized intentional interference with parental custody as a new cause of action, and allowed compensation for the loss of a child’s services and care, comfort and companionship. However, Plante is distinguishable from this case.

The cause of action recognized in Plante is based on an intentional tort, and greater responsibility as to the consequences and damages is traditionally imposed on an individual who intended his or her conduct to do harm. See W. Prosser, Law of Torts § 7 (4th ed. 1971); Derosier v. Company, 81 N.H. 451, 463, 130 A. 145, 152 (1925) (“In determining how far the law will trace causation and afford a remedy, the facts as to the defendant’s intent are often taken into account”); see also Hogan v. Robert H. Irwin Motors, Inc., 121 N.H. 737, 742, 433 A.2d 1322, 1326 (1981) (in awarding damages in an action for malicious prosecution, the jury may take into account the anxiety and injury to feelings and reputation of the plaintiff); Lunt v. Philbrick, 59 N.H. 59, 60 (1879) (in the intentional tort of seduction of plaintiff’s daughter, plaintiff may recover for all natural and necessary consequences, including injury to wounded and mortified feelings on account of family disgrace).

Additionally, the tortious conduct alleged in Plante involved a deliberate interference with the family relationship and, thus, is a direct injury to the parent and his or her rights, rather than an injury to a secondary victim as in the instant case. Finally, the policy concerns in Plante weigh differently. The cause of action for intentional interference with parental custody involves a “relatively unusual tort that presents no danger of multiplication of claims or damages. [It], moreover, may serve to deter child stealing and similar antisocial conduct.” Borer v. American Airlines, Inc., 138 Cal. Rptr. 302, 309 n.3, 19 Cal. 3d 441, 451 n.3, 563 P.2d 858, 865 n.3 (1977).

We must consider also the policy of this State in compensating victims and their families for negligent infliction of injuries resulting in death. We begin our inquiry by noting that in thirty-five States, parents may recover in a wrongful death action for the loss of companionship and society of a child. See Sanchez v. Schindler, 651 S.W.2d 249, 252-53 (Tex. 1983). In fourteen of these jurisdictions, the judiciary has allowed recovery under statutes which traditionally had been interpreted as limiting recovery to pecuniary loss. Id. In the other twenty-one States, legislative enactments explicitly allow recovery; nine of these States amended their statutes after judicial interpretation of the existing statute permitted recovery for loss of society and companionship. Id.

However, the wrongful death statutes enacted in those thirty-five jurisdictions are the “loss-to-survivors” types, and damages are awarded based on the losses suffered by the victim’s survivors. See S. Speiser, Recovery for Wrongful Death § 3.1 (2d ed. 1975). By contrast, the New Hampshire legislature has enacted a statute which limits damages to the injuries suffered by the decedent and his or her estate. RSA 556:12. Damages are not assessed based on the loss suffered by surviving relatives. Carney v. Railway, 72 N.H. 364, 376, 57 A. 218, 224 (1903).

Thus, judicial and statutory precedent do not support an extension of liability in the instant case. In addition, public policy concerns weigh against expanding the scope of liability flowing from a single tortious act. Therefore, we decline to create a new cause of action allowing parents to recover for the loss of the society of their negligently injured or killed child.

Also, the great majority of jurisdictions have declined to expand their common-law cause of action for parental loss of services to include loss of society. See generally Annot., 69 A.L.R.3d 553 (1976); Love, Tortious Interference with the Parent-Child Relationship: Loss of an Injured Person’s Society and Companionship, 51 Ind. L.J. 590 (1976). Of the ten jurisdictions in which the courts have explicitly answered this question, nine have declined to expand the existing parental cause of action or create a new cause of action. See Baxter v. Superior Court of Los Angeles Cty., 138 Cal. Rptr. 315, 19 Cal. 3d 461, 563 P.2d 871 (1977); Curtis v. County of Cook, 109 Ill. App. 3d 400, 440 N.E.2d 942 (1982); Butler v. Chrestman, 264 So. 2d 812 (Miss. 1972); Brennan v. Biber, 93 N.J. Super. 351, 225 A.2d 742 (1966), aff’d, 99 N.J. Super. 247, 239 A.2d 261 (1968); Wilson v. Galt, 100 N.M. 227, 668 P.2d 1104 (1983); Gilbert v. Stanton Brewery, Inc., 295 N.Y. 270, 67 N.E.2d 155 (1946); Kalsow v. Grob, 61 N.D. 119, 237 N.W. 848 (1931); Quinn v. Pittsburgh, 243 Pa. 521, 90 A. 353 (1914); McGarr v. Nat. and Prov. Worsted Mills, 24 R.I. 447, 53 A. 320 (1902); but see Shockley v. Prier, 66 Wis. 2d 394, 225 N.W.2d 495 (1975) (parent may maintain action for loss of aid, comfort, society and companionship of an injured minor child against a negligent tortfeasor).

In the jurisdictions where the right of the parent to recover for negligent injuries to a child is statutory, three jurisdictions allow recovery for loss of a child’s society. See Idaho Code § 5-310 (1979) (interpreted in Hayward v. Yost, 72 Idaho 415, 242 P.2d 971 (1952) to include loss of protection, comfort, society and companionship); Iowa R. Civ. P. 8 (1983) (parent may sue for actual loss of services, companionship and society; amended to reflect the holding of Wardlow v. City of Keokuk, 190 N.W.2d 439 (Iowa 1971)); Wash. Rev. Code 4.24.010 (1983) (action for damages for loss of services, support, love and companionship, and injury to or destruction of the child-parent relationship; amended to reflect the holding of Lockhart v. Besel, 71 Wash. 2d 112, 426 P.2d 605 (1967)); but see Smith v. Richardson, 277 Ala. 389, 171 So. 2d 96 (1965) (Ala. Code § 6-5-390 (Supp. 1983) does not include recovery for loss of child’s society).

Therefore, of the jurisdictions which have squarely met this issue, ten deny recovery for loss of a child’s society and four allow recovery. The other jurisdictions continue to allow recovery only for pecuniary losses in an action by parents for negligent injury to a child. But see Drayton v. Jiffee Chemical Corp., 395 F. Supp. 1081, 1097 (N.D. Ohio 1975) (by implication allowing recovery); Deems v. Western Md. Ry. Co., 247 Md. 95, 114, 231 A.2d 514, 525 (1967) (in dictum, denying recovery); Bias v. Ausbury, 369 Mich. 378, 380, 120 N.W.2d 233, 234-35 (1963) (Ohio law; by implication allowing recovery); Mich. Sanatorium v. Neal, 194 N.C. 401, 403, 139 S.E. 841, 842 (1927) (by implication denying recovery); but see also Yordon v. Savage, 279 So. 2d 844, 846 (Fla. 1973) (by implication allowing recovery) and City Stores Co. v. Langer, 308 So. 2d 621, 622 (Fla. App. 1975) (by implication denying recovery) (both cases citing Wilkie v. Roberts, 91 Fla. 1064, 1069, 109 So. 225, 227 (1926) (father can recover only his pecuniary losses — services, medical expenses)).

Turning to the second issue, the plaintiffs argue that the defendant Capitol City Shows, Inc. should be held strictly liable for any damages since Capitol City Shows, Inc. supplies a product to the general public which may endanger the public safety. The master dismissed the complaint in strict liability on the basis of Bolduc v. Herbert Schneider Corp., 117 N.H. 566, 374 A.2d 1187 (1977), which held that, because the operation of a ski tramway involved a nearly pure service transaction, the operator was not liable under strict liability.

The general rule is that the owner and operator of an amusement ride has a duty to exercise reasonable care. The owner or proprietor of a place of public amusement is not an insurer of the safety of the patrons; rather, he must exercise that degree of care which, under the same or similar circumstances, would be exercised by an ordinarily careful or prudent individual. Such care must .be proportionate to the danger known or reasonably apprehended and commensurate with the circumstances and risks of the situation. E.g., Hook v. Lakeside Park Co., 351 P.2d 261, 264-65 (Colo. 1960).

Notwithstanding this basic rule, the plaintiffs argue that New Hampshire’s doctrine of products liability applies to the present situation and subjects the defendant Capitol City Shows, Inc. to strict liability. The plaintiffs maintain that the defendant, by supplying amusement rides to the general public, is engaged in full-scale commerce.

It is necessary, however, to distinguish clearly between products and services. New Hampshire’s doctrine of products liability applies to persons engaged in the business of selling products for use or consumption. Buttrick v. Lessard, 110 N.H. 36, 260 A.2d 111 (1969). The defendant Capitol City Shows, Inc. does not sell or supply a product. It provides persons with a service; namely, a ride on a machine. The passenger is a licensee, with no property rights in the ride.

Perfection Paint and Color Company v. Konduris, 258 N.E.2d 681 (Ind. App. 1970), upon which the plaintiff relies, is not persuasive authority because the defendant therein supplied the plaintiff with a product (lacquer reducer), not with a service.

We hold that the master correctly relied on Bolduc v. Herbert Schneider Corp., 117 N.H. 566, 374 A.2d 1187 (1977), in denying the plaintiffs’ claim. In Bolduc, we affirmed the general rule that strict liability does not apply to a supplier of services. Id. at 569, 374 A.2d at 1189. As in Bolduc, the defendant here provided a service, not a product.

As we have noted before, we are not prone to extend strict liability in this jurisdiction. Id. at 569, 374 A.2d at 1190; cf. Moulton v. Groveton Papers Co., 112 N.H. 50, 54, 289 A.2d 68, 72 (1972). There is no indication that the plaintiffs suffer an unfair burden from the doctrine of strict liability not being applied in this case. The plaintiffs possess adequate protection through an action for negligence. We affirm the superior court’s decision dismissing the plaintiffs’ claim of strict liability against Capitol City Shows, Inc.

Affirmed.

Douglas, J., dissented; the others concurred.