Parents Of Injured Children And Recovery Of Consortium Damages
Overview
In personal injury and wrongful death matters the kith and kin of the injured/deceased are normally compensated. Apart from the economic dependence, loss of love, affection, comfort, etc., human rights jurisprudence requires that the emotional trauma faced by those who lose their loved ones as well as those sustaining serious injuries and thereby denied the normal comforts of life need to be compensated. The loss of consortium action has its origin in early Roman law. Under the doctrine of paterfamilias, an injury against a man's wife, children, or slaves is an injury to the man. As such, loss of consortium damages are paid to the spouse whose partner is seriously injured as a result of some accident. Children are also entitled to such damages in the event of death or injury to parents. Damages for the loss of consortium to parents for the injury of their children can be viewed as an extended version of granting spousal consortium.
Filial Consortium Damages and Children
The underlying purpose of filial consortium damages is to compensate the parent for the loss of affection, love and companionship that results from a child's injury or death. In general, the recovery of spousal consortium damages or damages given to children for loss of parental consortium is hassle free as most states provide for recovery. However, when it comes to recovery of consortium by parents of injured children the law speaks a different language. The majority of states maintain the position that no filial consortium damages need to be paid for non-fatal injuries. In fact, state laws provide for consortium damages mainly in case of wrongful death of children. For instance, in 2003, the Texas Supreme Court declined to extend a claim for loss of consortium to the parents of a child with a non-fatal injury. In fact, Texas law is not in favor of granting consortium benefits even in the case of serious injuries. Declining to extend the sympathetic and logical extension of consortium rights of children as to parents, the Court stated that “Tort Law cannot remedy every wrong. Sound public policy requires an end at some point to the consequential damages that flow from a single negligent act.”
The main argument against granting filial consortium to parents is that recognition of such a cause of action will have a cascading effect leading to recognition of similar actions in favor of siblings, grandparents, close friends, and so on. Though the logic sounds strange, denial of filial consortium to parents is also based on the dependence theory. Consortium damages are generally paid to the dependant spouse and children of the person sustaining injuries or wrongful death. On the other hand, children require parents’ nurturing, guidance, and supervision for everything. So in economic terms, parents need not be compensated as they do not sustain any monetary loss due to the injury of their children. Parents are entitled to recover pecuniary damages that arise from an injury to their child caused by a tortfeasor’s negligence. Pecuniary damages are damages paid in monetary terms and include medical expenses, increased costs of caring for the injured child, the loss of the child’s prior earnings, and impaired earning capacity. But loss of consortium damages is non-pecuniary in nature.
Recovery Under State Laws
Some state statutes directly provide for recovery of filial consortium damages whereas in other states, the litigating parents have to rely on case laws and opinion of jurists to support their claim. The states that directly permit recovery of filial consortium by parents are Alaska, Arkansas, Arizona, Hawaii, Idaho, Iowa, Massachusetts, New Mexico, North Dakota, Ohio, and Washington. Normally, in those states permitting parents to recover loss of consortium for injuries suffered by their child, damages will probably be limited to those incurred before the child becomes an adult. Massachusetts, Florida and Arizona have offered solace to parents of injured children by interpreting the law in a human rights perspective. For instance, in United States v. Dempsey, 635 S2d 961 (1994), the Florida Supreme Court expressly ruled that a parent has a common law right to recover for loss of an injured child’s consortium. Giving recognition to the less tangible aspect of parent-child relationship, the court held that “Rather than being valued merely for their services or earning capacity, children are valued for the love, affection, companionship and society they offer their parents.”
Conclusion
Parents should be able to recover damages when the injuries are severe enough that they interfere with the normal relationship between parents and their children. It seems a strange logic that prevents the courts from extending the benefits available to the children to claim parental consortium to go vice versa. If a child is seriously injured and in a vegetative state is it not a loss of companionship, affection and love--the very same emotions on which the courts provide compensation in spousal/parental injury cases?
