Sizemore v. Smock

422 N.W.2d 666, 430 Mich. 283

• Court: Michigan Supreme Court
• Decided: April 26, 1988
• Docket: 79826, (Calendar No. 6)
• Status: Published

Opinions

Riley, C.J.

In Berger v Weber, 411 Mich 1; 303 NW2d 424 (1981), this Court recognized a cause of action on the part of a child for loss of parental society and companionship when a parent is negligently injured. Today, we are asked to decide the related question whether the common law of this state shall recognize a parent’s cause of action for loss of a child’s society and companionship when the child has been negligently injured. We hold that the common law of this state does not recognize a parent’s action for loss of a child’s society and companionship and that any decision to further extend a negligent tortfeasor’s liability for consortium damages should be determined by the Legislature.

i

The facts of this case were concisely and accurately set forth by the Court of Appeals:

On October 28, 198[1], an automobile struck fifteen-year-old Valera Sizemore as she was riding her bicycle. The automobile was driven by defendant Smock and owned by defendant Peter Alumbaugh, Inc. Valera Sizemore sustained serious injuries as a result of the accident.

Valera subsequently filed suit in Genesee Circuit Court to recover for her injuries and her mother, Veda Sizemore, joined in the action. As relevant to this appeal, plaintiffs’ complaint made the following claim for damages against the defendants on behalf of Veda Sizemore:

"11. As a result of the above described accident, the Plaintiff, Veda K. Sizemore, sustained the loss of the companionship, society and protection of her daughter as well as the necessity to care for her daughter’s physical needs, and to provide medical care and treatment for her and parental concern regarding the serious injuries her daughter sustained.”

Defendants promptly moved for summary judgment pursuant to GCR 1963, 117.2(1) against Veda Sizemore, asserting that no Michigan statute or case recognizes a parent’s claim for loss of companionship and society when a child is negligently injured. As previously indicated, the trial court agreed and granted defendants’ motion. The court also determined that Veda did not have a cause of action for attending to her child’s medical needs, because she is compensated through the no-fault insurance act for such expenses, making a separate action unnecessary. Plaintiff Veda Sizemore now appeals as of right.[¹]

Relying on this Court’s decision in Berger, supra, the Court of Appeals reasoned that Michigan law sufficiently favored the parent-child relationship to allow a parent to recover for loss of companionship and society of a negligently injured child and reversed the trial court’s ruling. This Court granted defendants’ application for leave to appeal, limited to the issue whether the common law of this state should recognize a parent’s cause of action for loss of companionship and society of a negligently injured child.²

II

At early common law, all rights to recover damages stemming from injuries to family relational interests were held by the father under the doctrine of paterfamilias.³ The father’s rights were developed by analogy to the master-servant relationship and predicated on the archaic notion that family members were legally comparable to servants and that women retained no separate legal identity upon marriage.⁴ Recovery was initially limited to the pecuniary value of lost services and medical expenses.⁵ However, the action was eventually enlarged to allow the husband to recover loss of certain intangible elements, including the sentimental value of impaired sexual relations and loss of the wife’s society and affection.⁶

Recognition of the intangible aspects of the husband’s consortium action was initially limited to actions involving intentional interference with the marriage relationship, e.g., actions for enticement or harboring (inducing a wife to live apart from her husband), criminal conversation (adultery), and alienation of affections.⁷ The action was eventually extended to allow husbands to recover for loss of his wife’s consortium resulting from negligently inflicted injury as well.⁸

Under the common-law rule, the father was similarly entitled to compensation for the lost services of his children and medical expenses incurred as the result of tortious injury to them.⁹ However, the claim for loss of a child’s services did not expand to include the intangible aspects of the consortium claim as it did with regard to the wife.¹⁰

A few courts questioned survival of the husband’s consortium action with the passage of so-called married women’s acts which recognized the separate legal existence of married women and accorded them the right to retain their own earnings and property.¹¹ It was argued that if the husband’s action for pecuniary loss was eliminated, the sentimental aspects of the action should also fall.¹² However, notwithstanding the consortium action’s roots in the master-servant analogy, most courts rejected that contention and determined that the husband’s claim was primarily based on the marital society of his wife and continued to allow recovery for the intangible aspects of the consortium claim.¹³

The first significant extension of the consortium action occurred in 1950 in the landmark case of Hitaffer v Argonne Co.14 In that case, the United States Court of Appeals for the District of Columbia became the first court to recognize a wife’s action for loss of consortium when her husband was negligently injured by a third-party tortfeasor. Following the federal lead in Hitaffer, this Court, in a four-to-three decision, recognized the consortium action for both spouses in Montgomery v Stephan, 359 Mich 33; 101 NW2d 227 (1960). The Montgomery Court, over a strong dissent, rejected arguments that the consortium action should not be recognized because the damages were too remote and uncertain, because there was a danger of allowing double recovery, and because of the contention that various policy and procedural considerations made the determination one more appropriately left to the Legislature. As will be seen, these are among the same considerations confronted by other courts in deciding whether to extend the consortium action to the parent-child relationship.

A further and perhaps more significant expansion of the consortium action occurred in 1975 when the Supreme Court of Wisconsin extended the action to parents to recover for their loss of society and companionship of a negligently injured child. Schockley v Prier, 66 Wis 2d 394; 225 NW2d 495 (1975). The Schockley court opined that the parent-child relationship could no longer be analogized to the master-servant relationship and that in modern society, children are no longer valued for their services or earning capacity, but rather for their society and companionship. Schockley was the seminal case in a slowly developing trend towards extending the consortium action to the parent-child relationship.

In Berger, supra, this Court similarly took the first step towards extending the consortium action to the parent-child relationship and recognized a child’s action for the loss of companionship and society of a negligently injured parent.

In deciding to recognize the child’s claim, the Berger Court rejected various arguments and policy considerations as valid reasons to decline to further extend the action. Among the arguments rejected was the contention that there are significant distinctions between the marital relationship and the parent-child relationship which call for different treatment. The Court concluded that although the sexual relations aspect of spousal consortium was absent in a child claim, "[t]he other elements — love, companionship, affection, society, comfort, services and solace — are similar in both relationships and in each are deserving of protection.” Id. at 14. Other policy considerations raised by the defendant, including the added burden on the court system by increased litigation, a multiplicity of actions arising out of a single tortious act, the increased economic burden to the public in general due to increased insurance premiums, the remoteness and speculative nature of the damages, were similarly discounted.

The dissent in Berger took cognizance of the legitimacy of the child’s interest in parental society and companionship, but nevertheless was persuaded that upon balancing the interest at stake against the various policy considerations implicated, the consortium action should not be extended beyond the marital relationship.

The matter before us today requires us to independently reexamine the various arguments and policy considerations which closely divided the Court in both Berger and Montgomery.

hi

The appellants in the instant case contend that in light of the consortium action’s dubious historical evolution it is an anomaly in the law and that recognition of a parent’s or child’s claim for loss of society and companionship resulting from negligent injury to another constitutes an unwarranted extension of tort liability. Appellants further stress the various public policy considerations raised by the dissent in Berger and maintain that the line of liability must be drawn at Berger, although they believe there is little justification to support the consortium action in any context.

The appellee and the dissent, on the other hand, argue that the Court of Appeals decision in the instant case, recognizing the parental consortium action, was a logical extension of Berger and that it is warranted by the need to protect the parent-child relationship and the reality of the genuine sentimental loss suffered by a parent when a child is tortiously injured. In his dissent, Justice Archer maintains that the lack of any meaningful distinction between the interests being protected by the cause of action recognized in Berger and the interests appellee seeks to have protected here, mandates recognition of the parental consortium action.¹⁵

The plaintiffs argument has compelling sympathetic and logical appeal. Justice Archer relies heavily on the reciprocal nature of the intangible elements protected by the consortium claim in the parent-child context in support of his position.¹⁶ We agree that any attempt to draw a meaningful distinction on the basis of the sentimental aspects of the consortium claim between the parties in the parent-child relationship would be specious' and unavoidably futile. Nevertheless, when this Court is confronted with the task of determining whether to expand the scope of a negligent defendant’s liability and the conditions of recovery, it must look beyond logical analogies and balance the arguments in support of recognizing a new cause of action against public policy considerations and the social consequences of imposing yet another level of liability.¹⁷

Similarly, Justice Boyle rests her argument in part on the unique value inherent in the parent-child relationship and the importance to society in protecting it. We do not in any way quarrel with this notion. However, we believe that there are compelling conceptual and public policy considerations that militate against this Court further extending a negligent tortfeasor’s liability by recognizing a parent’s action for loss of society and companionship of a negligently injured child. This determination is not in any way intended to denigrate the unique value inherent in protecting the parent-child relationship.

The consortium action is somewhat of an anomaly in the law of tort in that it is generally the rule that a negligent tortfeasor’s liability only extends to an obligation to compensate the person directly injured.¹⁸ Although it is eminently foreseeable that a negligent injury to one party will result in adverse consequences that affect others to one degree or another, the law cannot redress every injury, and the determination of where to draw the line of liability is essentially a question of policy. Having extended the scope of liability in Berger, supra, to cover the intangible loss suffered by a child whose parent has been negligently injúred, we are now asked to extend it one more step to redress the parent’s similar loss when the child is negligently injured.

Foreseeability of injury alone does not mandate recognition of a cause of action.¹⁹ Social policy must intervene at some point to limit the extent of one’s liability.²⁰ In Borer v American Airlines, Inc, 19 Cal 3d 441, 446; 138 Cal Rptr 302; 563 P2d 858 (1977), the California Supreme Court, en route to refusing to recognize a child’s consortium action, observed:

As stated by Judge Breitel in Tobin v Grossman (1969) 24 NY2d 609, 619 [301 NYS2d 554, 249 NE2d 419]; "Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree.”

We believe that important public policy considerations weigh heavily against any further extension of the consortium action by this Court. Initially, we question the wisdom of awarding monetary damages to compensate one for a loss of the intangible and sentimental elements of the consortium claim. The efficacy of such an award to either deter negligent conduct or adequately redress the loss suffered is highly questionable. To the extent that the system of tort liability is designed to make one more socially responsible vis-á-vis their relationship with others, it is unlikely that any secondary liability imposed beyond the liability exposure to the primary victim of an injury will do anything to further that objective. Moreover, monetary compensation will not enable the parents to replace the loss they have suffered. Although tort law permits recovery for other intangible injuries, e.g., pain and suffering of the primary injured party, the wisdom of compensating one for such injuries is less compelling when the injury is remote, the loss is intangible, and the liability is secondary.

The intangible character of the loss also raises difficulty with the proper measurement of damages²¹ and creates an unwarranted risk of allowing double recovery. As noted by the dissent in Berger, supra, the primary victim of a negligent injury can recover for a broad range of intangible losses which includes losses to the family relational interest.²² The Berger dissent further noted:

When a close link between two persons is disrupted, it is difficult to distinguish the injury suffered by each. As the California Supreme Court noted: "[T]o ask the jury, even under carefully drafted instructions, to distinguish the loss to the mother from her inability to care for her children from the loss to the children from the mother’s inability to care for them may be asking too much.” To permit a child to recover for loss of an injured parent’s society and companionship while the parent is also compensated for injury to the relationship creates a substantial risk of double recovery because of the difficulty of distinguishing the respective losses of the parties. [Berger, supra at 36 (dissent of Levin, J.).]

We believe this observation is equally applicable to the parent’s claim and that it similarly creates a significant risk of double recovery.

The social consequences and economic burdens resulting to the public from recognition of an additional cause of action also persuade us that the line of liability should not be éxtended any further. Realistically, the burden of payment for additional consortium awards will be borne by the general public through the assessment of increased insurance premiums which in turn creates the danger that many persons may choose to go uninsured. The Berger, supra, dissent relevantly noted:

There is a limit to the range of injuries and the dollar amount of recovery which can be spread across society through the interaction of the tort litigation and insurance systems. Increasing the load on the reparation system by recognizing causes of action in secondary tort victims in addition to the primary victim’s action must increase insurance premiums, decrease participation in the system by marginal insureds, and perhaps decrease the amount that an insurer will willingly pay to the primary victim, thereby increasing litigation. [Id. at 41.]

The cost of administering the system to determine and pay additional consortium awards will also undoubtedly be increased by the multiplication of claims as will the expense of settling or litigating them.

In his dissent, Justice Archer acknowledges that a "very difficult policy question” is presented here (post, p 306), and suggests that there is a better point at which the line of liability for consortium damages should be drawn (post, p 306). However, the dissent fails to suggest where that point should lie on the continuum of liability. We similarly fail to see where such a point of demarcation should more logically begin. Grandparents, siblings, and others with close emotional ties to a negligently injured plaintiff undoubtedly would be able to posit an argument just as logical and sympathetic as the parent or child for protection of their consortium interests by recognition of similar action in their favor.²³ However, for the policy considerations we discuss here, we believe the limit of one’s liability should not be extended any further.

Plaintiff and the dissent also contend that the allowance of filial consortium damages under this state’s wrongful death act, MCL 600.2922; MSA 27A.2922, requires similar recognition of such damages when the negligently inflicted injury is less than fatal and that it would be anomalous to do otherwise.²⁴ However, as the dissent in Berger explained, the rationale for allowing such damages in a wrongful death context is based on historical and policy considerations that are not applicable to negligence claims involving a less grievous injury:

Whether or not it was an accurate historical statement, Lord Ellenborough’s famous dictum that "[i]n a civil court, the death of a human being could not be complained of as an injury” was accepted as declaratory of the common law. The harshness of this rule and its apparent incentive to inflict death rather than injury inspired legislatures to create statutory remedies for "the most grievous of all injuries.” Allowing recovery for the lost affection and society of a fatally injured person assures that a meaningful remedy will be available in every case without regard to whether that person was a wage earner or contributed to the support of the spouse, parent or child in whose interest the action is maintained. "Recovery for loss of affection and society in a wrongful death action thus fulfills a deeply felt social belief that a tortfeasor who negligently kills someone should not escape liability completely, no matter how unproductive his victim.”

But where the parent injured by the tortfeasor’s conduct survives, so does the parent’s cause of action for the injuries inflicted. If the primary victim of the accident may bring an action, there is no need to permit other family members to recover in order to provide some compensation for the family and to prevent the tortfeasor from escaping liability altogether.

Further, where the parent survives the injury, certain aspects of the child’s loss, e.g., impairment of the parent’s ability properly to care and provide for his children, can be compensated in the parent’s own action. But where the parent dies, compensation for loss of parental care and services can be recovered only through a wrongful death action. Whether or not this compensation encompasses recovery for the child’s loss of society and companionship in addition to more pecuniary items such as lost wages from which support would have been furnished, the availability of some reparation for disadvantage to the child and to the victim’s family furnishes a sufficient basis for allowing the child to recover for lost society and companionship in the case of a parent’s death but not in the case of parental injury. [Berger, supra at 47-48 (dissent by Levin, J.). See also Borer v American Airlines, Inc, supra at 451.]

Although the above comments were made when the question presented concerned recognition of the child’s consortium claim, the reasoning is equally applicable to the question presented here.

We also note that other jurisdictions are evenly split in terms of recognizing the parent’s consortium action as a matter of common law since Wisconsin became the first jurisdiction to do so in Schockley, supra.25 However, we find it significant that among those jurisdictions which have declined to recognize the parent’s action since Schockley, all have based their decisions on the same or similar policy considerations which impel us to the result we reach in this case.²⁶

IV

It is clear to us that further extension of a negligent tortfeasor’s liability involves a variety of complex social policy considerations.²⁷ In light of these concerns, we believe that the determination of whether this state should further extend a negligent tortfeasor’s liability for consortium damages should be deferred to legislative action rather than being resolved by judicial fiat. Therefore, we reverse the decision of the Court of Appeals.

Levin, Brickley, Cavanagh, and Griffin, JJ., concurred with Riley, C.J.

1 Sizemore v Smock, 155 Mich App 745, 746-747; 400 NW2d 706 (1986).

2 Sizemore v Smock, 428 Mich 873 (1987).

3 See Williams, The child’s action for loss of society and companionship: The next logical step, 62 Chicago-Kent L R 55, 56 (1985).

4 Id. See also Prosser & Keeton, Torts (5th ed), § 125, p 931, and Montgomery v Stephan, 359 Mich 33, 38-39; 101 NW2d 227 (1960).

5 Prosser & Keeton, n 4 supra.

6 Id. Presently consortium is defined as love, companionship, affection, society, comfort, sexual relations, services, solace, and more. Berger, supra at 13, n 5.

7 Berger, supra at 25 (dissenting opinion of Levin, J.). See also Popescul, Action per quod consortium amisit, 43 Sask LR 27, 28-33 (1979).

8 Id.

9 Prosser & Keeton, n 4 supra at 934.

¹⁰

11 Following passage of the married women’s act in Michigan, this Court held that neither spouse could maintain an action for loss of consortium. See Blair v Seitner Dry Goods Co, 184 Mich 304, 313-314; 151 NW 724 (1915).

12 Harper, James & Gray, Torts (2d ed), § 8.9, p 551.

¹³

14 Hitaffer v Argonne Co, 87 US App DC 57; 183 F2d 811 (1950), rev’d in part on other grounds sub nom Smither & Co, Inc v Coles, 100 US App DC 68; 242 F2d 220 (1957), cert den 354 US 914 (1957).

15 Although Justice Archer acknowledges that Berger does not directly bind this Court to recognize the parental consortium claim, he nevertheless seems to suggest that our failure to recognize the parent’s claim somehow constitutes a departure from our obligation to adhere to the doctrine of stare decisis (post, p 300, n 1, pp 307-308). However, the doctrine of stare decisis, as it relates to Berger, has no bearing on the Court’s decision in this case. The question presented here, although closely related to the question decided in Berger, is clearly not the same one. Here, we must consider whether to recognize an entirely new cause of action that was not considered by the Berger Court and will result in imposing an additional level of liability on negligent tortfeasors beyond that recognized in Berger.

16 Justice Archer maintains that in order to decline to recognize the parental consortium action, this Court must either overrule Berger or distinguish between the rights of a child to parental consortium and those of a parent to filial consortium. There is no authoritative basis for this assertion. Indeed, this Court would be remiss if it neglected to consider the various policy considerations implicated by the question presented in reaching our decision. See Berger, supra at 23 (dissenting opinion of Levin, J.).

¹⁷

18 See Siciliano v Capitol City Shows, Inc, 124 NH 719, 724-725; 475 A2d 19 (1984).

19 See Berger, supra at 28-29 (dissenting opinion of Levin, J.).

20 Borer v American Airlines, Inc, 19 Cal 3d 441, 445-446; 138 Cal Rptr 302; 563 P2d 858 (1977).

21 See Berger, supra at 35-36 (dissenting opinion of Levin, J.).

22 Id. at 37-38.

23 Justice Archer suggests, without explanation, that this " 'slippery slope’ argument has never been less applicable than in relation to this cause of action” (post, p 306, n 4). We fail to see the logic of such reasoning and firmly believe that a sibling, grandparent, or others with close emotional ties to a negligently injured plaintiff may share the same intangible interests to the same degree as the parent. Indeed, the dissent itself seems to already be slipping further down the slope of consortium liability by implying that siblings should also be entitled to maintain a separate consortium action. ("There is a clear qualitative distinction between the nuclear family and all other interpersonal relationships.” Post, p 306, n 4.)

Furthermore, we similarly do not fear that lower courts will “inadvertently” be led to recognize additional consortium actions if we recognize the parent’s claim (see id.). However, they may indeed be inclined to do so by employing the same reasoning posited by the dissent in support of its position in this matter.

24 Under Michigan’s wrongful death act, MCL 600.2922; MSA 27A.2922, parents may recover for the loss of society and companionship of their child when the child dies as the result of negligent injury.

25 In addition to Wisconsin, the following jurisdictions also recognize the parent’s consortium action as a matter of common law. Dralle v Ruder, 148 Ill App 3d 961; 500 NE2d 514 (1986); Norvell v Cuyahoga Co Hosp, 11 Ohio App 3d 70; 463 NE2d 111 (1983); Reben v Ely, 146 Ariz 309; 705 P2d 1360 (1985).

Three jurisdictions also allow the parent to recover consortium damages for negligent injury to the child by statute. See Idaho Code 5-310 (interpreted in Hayward v Yost, 72 Idaho 415; 242 P2d 971 [1952] to include loss of protection, comfort, society, and companionship), Iowa Code Ann, Rules of Civil Procedure 8, and Wash Rev Code Ann 4.24.010.

The following jurisdictions have declined, since Schockley, to recognize the parent’s action. See Baxter v Superior Court of Los Angeles, 19 Cal 3d 461; 138 Cal Rptr 315; 563 P2d 871 (1977); Wilson v Galt, 100 NM 227; 668 P2d 1104 (1983); Siciliano v Capitol City Shows, Inc, n 18 supra.

26 Justice Archer criticizes our reliance on the pertinent policy considerations in reaching our result because they are "relevant to every cause of action in tort.” (Post, p 307, n 5.) Whether or not this is so, what makes them particularly relevant to this cause of action is that these considerations loom larger when we must determine whether to impose additional levels of liability on a negligent tortfeasor and the incremental effect on these considerations as they relate to the tort system of recovery.

27 In her dissent, Justice Boyle concludes that "[t]he majority opinion amounts to a statement that if damage to the family cannot be measured in dollars, it should not be recognized.” However, the difficulty inherent in assessing damages incurred from injury to the intangible interests at stake is but one of the various economic considerations which leads us to conclude that the decision to recognize a parental consortium action is more appropriately left to the Legislature.