Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD83-21622.
Kenneth W. Behrend, Pittsburgh, for appellants.
Jeffrey J. Leech, Pittsburgh, for appellee.
Cirillo, President Judge, and Brosky, Rowley, Wieand, Montemuro, Beck, Tamilia,*fn* Popovich and Johnson, JJ. Brosky, J., files a dissenting statement. Tamilia, J., did not participate in the decision of this case.
[ 358 Pa. Super. Page 507]
The sole issue raised in this appeal is whether Pennsylvania should recognize a cause of action by a child for loss of parental consortium when the parent is injured by a third-party tort-feasor's negligence. For the reasons set forth herein, we affirm the order of the trial court and refuse to recognize such a cause of action.
On December 29, 1981, the two minor appellants*fn1 were at home with their mother when someone broke into the house. Hearing the intruder's footsteps, the appellants' mother dialed the Bell Telephone Company's directory assistance number and was placed on hold twice by the operator before being connected with the police only seconds before the intruder interrupted her telephone call and raped her. The assailant was not apprehended. Because of the incident, appellants' mother is allegedly suffering emotional problems which are a contributing factor to the marital discord of appellants' parents.
The appellants sued Bell Telephone Company on the theory that it was liable to them for the injury to their "family relationship" resulting from their parents' marital breakdown caused by the criminal attack on their mother which could have been impeded had appellee not negligently handled their mother's telephone call. On March 16, 1984,
[ 358 Pa. Super. Page 508]
the trial court granted appellee's preliminary objections in the nature of a demurrer and dismissed appellants' complaint for failure to state a legally cognizable cause of action. Appellants filed a timely appeal from the order of March 16, 1984, and the case was certified to be argued before the court en banc.
On our review of an order sustaining preliminary objections, we must determine whether the facts averred are sufficient to establish a legal cause of action. Monti v. Pittsburgh, 26 Pa. Commw. 490, 364 A.2d 764 (1976). Only if it is clear and free from all doubt will we affirm the order sustaining the preliminary objections, and any doubt must be resolved in favor of overruling the preliminary objections. Zelik v. Daily News Publishing Co., 288 Pa. Super. 277, 431 A.2d 1046 (1981); Girard Trust Bank v. Life Insurance Co., 243 Pa. Super. 152, 364 A.2d 495 (1976).
The proposed cause of action for a child's loss of consortium has numerous elements. Those courts which have recognized the cause of action have included various items in their definition of consortium between a parent and child. In Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 413 N.E.2d 690, 696 (1980) the court held that "children have a viable claim for loss of parental society if they can show that they were minors dependent on the parent . . . [for] filial needs [of] closeness, guidance and nurture." In Hay v. Medical Center Hospital of Vermont, 145 Vt. 533, 496 A.2d 939, 492 (1985), the court noted that parental consortium included love, companionship, affection, society, comfort, services and solace. In Theama v. City of Kenosha, 117 Wis.2d 508, 344 N.W.2d 513 (1984), the court included care, guidance, love and protection as the elements which the children lost when their father was injured. And the courts in Ueland v. Reynolds Metals Co., 103 Wash.2d 131, 691 P.2d 190 (1984), Berger v. Weber, 82 Mich.App. 199, 267 N.W.2d 124 (1978) aff'd. 411 Mich. 1, 303 N.W.2d 424 (1981), and Reighley v. International Playtex, Inc., 604 F.Supp. 1078 (D.Colo.1985) have similarly defined parental consortium.
[ 358 Pa. Super. Page 509]
In the instant case, appellants in their brief have asserted that consortium includes society, association, companionship, comfort, affection, nurture, moral training, education, and guidance. Appellants' brief at 5-6. The amicus curiae, Pennsylvania Trial Lawyers Association,*fn2 limits its definition to aid, comfort and society. Brief of Amicus Curiae at 6. Neither party nor the amici curiae have questioned the sufficiency of the factual averments of loss of parental consortium in appellants' complaint, and therefore, this issue has not been addressed by the trial court. Assuming, without deciding, that the complaint in this case is sufficient we will address the only issue which the parties have raised, briefed and argued: whether to recognize a cause of action for a child for loss of parental consortium due to negligent injury of the parent.
The parties and amici curiae have presented numerous arguments setting forth the reasons why we should and why we should not recognize a cause of action for loss of parental consortium. Appellants' arguments and those of the Pennsylvania Trial Lawyers Association can be divided into two classes: those which affirmatively assert why we should recognize a child's cause of action and those which rebut the arguments against recognition of such a cause of action.
First, appellants assert that there is no Pennsylvania case law expressly denying a child's cause of action for loss of his parent's consortium, and it would be inconsistent with the existing law not to recognize such a cause of action. Pennsylvania not only recognizes that a husband has a cause of action for loss of his wife's consortium, but also permits a wife to seek damages for loss of consortium of her husband. Hopkins v. Blanco, 457 Pa. 90, 320 A.2d 139
[ 358 Pa. Super. Page 510]
(1974). Spousal consortium includes society, association, companionship, comfort and affection, 1 Speiser, Recovery for Wrongful Death 2d, § 3.49, and this consortium is very similar to that between a parent and child. Therefore, a child should be permitted to recover for loss of parental consortium. Also under Pennsylvania law, a child can recover in a wrongful death action for the loss of companionship, comfort, society and guidance of a parent. Spangler v. Helm's New York-Pittsburgh Motor Express, 396 Pa. 482, 153 A.2d 490 (1959); Pa.R.C.P. 2202. Because Pennsylvania allows a child who has been deprived of parental companionship, comfort, society, and guidance by the wrongful death of a parent to be compensated for those losses, so, too, should Pennsylvania allow children whose parents are injured to recover for the loss of those same elements of the parent-child relationship.
Carrying their affirmative argument one step further, appellants argue that denial of a child's cause of action for loss of a parent's consortium violates the equal protection clause of the United States Constitution. Appellants argue that whether one compares children of negligently injured parents and children of negligently deceased parents or children of accident victims and spouses of accident victims, there is no legitimate basis for denying only the children of injured parents the right to recover for loss of consortium.
In countering the traditional arguments made by those who would deny the existence of a child's cause of action for loss of a parent's consortium, appellants first assert that it is a poor excuse to refuse to acknowledge the cause of action based on the lack of precedent because the traditional common law view of a child as a chattel has eroded, Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971), and Pennsylvania does not bind itself to precedents of questionable validity. Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970) (abandoning the physical impact rule for tort damages); Griffith v. United Airlines, 416 Pa. 1, 203 A.2d 796 (1964) (abandoning lex loci delicto rule for choice of law); Olin Mathieson Corporation v. White Cross Stores,
[ 358 Pa. Super. Page 511414]
Pa. 95, 199 A.2d 266 (1964) (abandoning inter-spousal immunity).
Secondly, appellants assert that the argument that a child should be denied a cause of action for loss of parental consortium because a child has no legally enforceable right to the companionship of a parent is untenable. A spouse can sue a third party tort-feasor for loss of the other spouse's consortium even though neither spouse can obtain specific relief or monetary damages from the other spouse for failure to provide consortium. Therefore even though a child can not sue a parent for failure to provide consortium, he ought to be able to recover from a third party whose negligence interferes with the parent/child relationship. ...