Opinion
No. CV 950148611S
May 9, 1997
MEMORANDUM DATED MAY 9, 1997
Once again a Connecticut superior court is called upon to strike the consortium claim of a parent whose minor child is said to have been injured by negligence.
Plaintiff minor, age 15 in 1993, asserts harm from sexual assault in an allegedly negligently supervised residential treatment center.
A review of the trial level cases has persuaded this court that the cause of action is properly cognizable. No appellate opinion squarely determines the question. Indeed, it has been specifically noted to be open.
In early 1996, Judge Moraghan collected the Superior Court cases and reported that 57 cases had been decided with a significant majority (45 to 12) disallowing claims for loss of "filial consortium." Flores v. Danbury Hospital, 1996 WL 88458, Conn. Super., No. 320203, Feb. 9, 1996.
Mahoney v. Lensink. 17 Conn. App. 130, 141, n. 7 (1988), affirmed in part, reversed in part, 213 Conn. 548 (1990). The language many of the superior court decisions for this proposition quote from the Mahoney footnote: "No appellate court case has yet addressed squarely the issue of whether, under any circumstances, a cause of action lies." It might be noted, however, that the language of the text preceding the footnote, ostensibly inclines against allowing such a cause. "Moreover, the plaintiff's consortium claim is said to arise out of the civil contract of marriage and as such, does not extend to the parent-child relationship. " The footnote's language appears to pull the topic back into a neutral zone. The Mahoney parent's claim failed under a different rationale, that plaintiff's did not fall within the class of persons to whom rights are afforded under C.G.S. §§ 17-206b, 17-206c, and 17-206K.
This conclusion is limited in at least three regards: the son or daughter of the parent claiming loss of consortium must have been a minor when the harm ensued; and, the parent's loss is compensable only throughout the duration of the injured child's minority; and the injury to the child must be serious.
A different conclusion might be appropriate where the child is the claimant pursuant to direct injury to the parent, for reasons it serves no gainful purpose to here set out. See, e.g. Borer v. American Airlines, Inc., 19 Cal. 441, 563 P.2d 858 (1977). Many more cases are collected in "Child's Action-Loss of Parental Attention," 11 A.L.R. 4th 549.
This court is well aware that expansions and contractions of the common law are singularly the work of our Supreme Court or the Appellate Court. A trial court is thus left to stare decisis alone or to a prospective determination of what the law of our state will be when the very case at bar is finally adjudged. It is the court's opinion that the line-drawing most likely to occur in this case would embrace the above limitations.
One begins with the appreciation that this door was opened, if today's result not foreordained, with the sound rationale of Hopson v. St. Mary's Hospital, 176 Conn. 485 (1979). There, it was held that "either spouse has a claim for loss of consortium shown to arise from a personal injury to the other spouse caused by the negligence of a third person . . ." Id. at 496.
A portion of Hopson's reasoning strikes one as especially compelling: "In short, the effect of . . . [ Marri v. Stamford Street R. Co., 84 Conn. 9 (1911)] (the case Hopson was to overrule) is to deny the existence of any harm where harm is most assuredly expected." Id. at 493. Upon noting that a tortfeasor takes his victim as he finds him, Hopson states: "Should the victim be married, it follows that the spouse may suffer personal and compensable, though not physical, injuries . . . and that such injuries should not go uncompensated." Id.
The quoted language shows the existence and clarity of the court's having been influenced by the likelihood, indeed, certainty of harm to the spouse. It seems as clear to this court that to injure a minor child is as foreseeably likely to wound the parent as would occur in the spouse-to-spouse context.
Certainty and/or likelihood aside, the magnitude of the injury also withstands comparison. In the Hopson language most frequently quoted, "the mental and emotional anguish caused by seeing a healthy, loving, companionable mate turn into a shell of a person is undeniably a real injury. Moreover, an injury to one's spouse may turn a happily married man or woman into a lifelong nurse and deprive him or her of an opportunity of having children and of raising a family." Id. The court finds it impossible, on a scale weighing gravity of harm, to see a parent's suffering as of lesser significance.
One judge refusing to strike a filial consortium claim was struck by the child-rearing reference in Hopson. "[T]his court cannot see any rational reason to distinguish between the right to have and raise a child as a component of spousal consortium, and a right to a claim for loss of filial consortium when a parent is deprived of the opportunity to have and raise that same child. The court finds this to be a compelling public policy argument for protecting the sanctity of the family." Condon v. Guardiani, 16 CONN. L. RPTR. No. 14, 466 (June 3. 1996) (Skolnick, J.).
Another Superior Court opinion holding filial consortium claims cognizable espoused the notion that the parent-child relationship holds an equally esteemed position as that between spouses, such as that parental interests and rights as to children are of constitutional dimension, albeit in other contexts. Sliney v. Denisanko, 9 CONN. L. RPTR. 537, 8 CSCR 887, Judicial district of New Haven, Docket No. 334928 (August 9, 1993) (Gordon, J,).
Judge Gordon cited Buchholz's Appeal from Probate, 9 Conn. App. 413 (1987) which stated: "Our conclusion that the interest of a parent in the welfare of his child is significantly different from the interest of any other family member is suggested by the fact that only the relationship between parent and child is constitutionally protected." Id. at 419 (emphasis added). Buchholz in turn cited McGaffin v. Roberts, 193 Conn. 393, 400 (1984) ("There can be no lingering doubts that the family unit, including the rights of parent and child, is accorded constitutional protection"); see, also Quilloin v. Walcott, 434 U.S. 246 (1978); Stanley v. Illinois, 405 U.S. 645 (1972); Weinburger v. Weisenfeld, 420 U.S. 636.
It is inexorably so that our society and public policy now clearly honor and protect the parent-child relationship as fully, if not more so, than the interspousal one. As obviously, the nurturance of children approaches or rises to the level of marital bliss as the essence of family life.
There is little conceptual space above parent-child level into which one might elevate society's concern with interspousal interests in this era of no-fault divorce.
While some of the Superior Court cases to the contrary rely on erstwhile necessity of a marriage to a consortium claim, the various elements of consortium, save one, conjugal relations, are present, too, between parent and child. The Hopson court noted that "these intangible elements" include "affection, society, companionship and sexual relations," and "dependence, reliance, affection sharing and aid." 176 Conn. at 478. Perhaps this notion was best put by Judge Corradino when he wrote "the reasoning Hopson relied upon makes it difficult to see how our state can logically recognize claims of loss of spousal consortium but not of parental loss of filial consortium." Scalise v. Bristol Hospital, Docket No. 93-0525217, 14 CONN. L. RPTR. 534 (July 6, 1995) (Corradino, J.).
To be sure, one can find sources which include financial support as a loss potential in consortium. This is problematic (and thus, not listed above as a traditional element) because the "directly" injured person would presumably be entitled to recover economic losses and, as before, pass them to the consortium claimant.
Each of the Superior Court cases so far cited preceded the Supreme Court's holding in Clohessy v. Bachelor, 237 Conn. 31 (1996). This court therefore felt it necessary to determine whether the Clohessy result undercut the notion that filial consortium must be cognizable in Connecticut.
The Clohessy decision permits a bystander, if a parent or sibling, to recover of a tortfeasor for negligent infliction of emotional distress arising out of the fatal injuries suffered by the parent's other child. The court set several limitations into place, the first of which is germane here.
The remaining three restrictions: the bystander's emotional injury must be caused by the contemporary sensory perception of the event producing harm; the victim's injury must result in death or serious physical injury; and, the bystander's emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response. Id. at 56.
This court has determined that there is more consistency than contradiction in the co-existence. To rule that Clohessy bars today's LeBlanc prospective result would be to suggest that a sibling has greater general recovery rights than a parent, simply because the sibling was a direct sensory witness and the parent was not. Additionally, the allowance of the sibling into the circle bespeaks an intention in our Supreme Court to expand, with restrictions, the rights of the indirect, but seriously harmed victim.
This tendency might also have been displayed by the legislature when Public Act 89-148, now C.G.S. § 52-555a was enacted, allowing post-mortem spousal consortium claims.
Finally, as to Clohessy, the court perceived the duty owed to certain bystanders regarding their emotional distress because of the reasonable foreseeability thereof. This court feels that the consortium harm a parent will suffer due to the serious injury of a minor child is even more, or at least as clearly, foreseeable as the serious bystander emotional injury required by Clohessy.
The Clohessy bystander distress holding, therefore, poses no obstruction to this result but rather lights its way. The filial consortium injury is sufficiently different in nature that they should each reside in our law.
This opinion leaves open the prospective result should the loss of filial consortium be claimed where the child has suffered CT Page 5016 wrongful death. In this area, a legislative response may be necessary, as wrongful death claims are statutory rather than common law in nature. See Ladd v. Douglas Trucking Co., 203 Conn. 187 (1987). Thus, C.G.S. § 52-555a now permits spousal consortium claims, post-mortem, in wrongful death cases, an act subsequent to the Ladd decision.
Finally, this court feels that with this particular claim, the interests of judicial economy suggest that this claim go to trial and then to its Appellate fate. Likely but a single witness or two would address this claim. A jury rejection likely ends that aspect. Striking this claim now would require a new trial before a new jury were this claim to be honored only after appeal.
The motion to strike is denied.
NADEAU, J.