High v. Howard - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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High, a Minor, et al., Appellants, v. Howard et al.,
Appellees.
[Cite as High v. Howard (1992), Ohio St.3d .]
Torts -- Child does not have a cause of action for loss of
consortium against a third-party tortfeasor who
negligently or intentionally injures the child's parent.
Under Ohio law, a child does not have a cause of action for
loss of consortium against a third-party tortfeasor who
negligently or intentionally injures the child's parent.
(No. 91-892 -- Submitted February 18, 1992 -- Decided June
24, 1992.)
Appeal from the Court of Appeals for Allen County, No.
1-90-39.
On January 9, 1989, Michael E. High was severely injured
in an automobile accident in Hardin County, Ohio. The driver
of the truck that collided with High's vehicle was Randall C.
Howard, an employee of Cal's Trucking, Inc.
High is the father of the appellants, Jason and Joshua
High, both minors. At the time of the accident, Michael High
shared joint custody of the boys with their mother, Sharon
High. As a result of the accident, Jason and Joshua, through
their mother as next friend, filed suit against Howard and his
employer to recover damages. In their complaint, the boys
alleged that "[a]s a result of the injuries sustained by
Michael E. High in the crash, *** [they] have lost the
companionship, love, association, moral support, guidance of
their father. *** [They] have also been deprived of their
expectancy of inheritance. *** [They] have also suffered
extreme emotional distress as a result of the injuries
inflicted on their father." When the suit was filed, Michael
High was a patient in a rehabilitation hospital, needing
around-the-clock supervision and care. Howard and Cal's
Trucking filed a motion to dismiss the appellants' action which
the trial court granted. The court of appeals affirmed.
The cause is now before this court pursuant to the
allowance of a motion to certify the record.

Siferd & Siferd and Richard E. Siferd, for appellants.
Isaac, Brant, Ledman & Becker, David G. Jennings and J.

Stephen Teetor, for appellees.

Moyer, C.J. In a recent decision of this court, we noted
that it was not yet the propitious time to review the issue of
whether a child may maintain a cause of action for loss of
parental consortium against a tortfeasor who negligently or
intentionally injures the child's parent. Bowen v. Kil-Kare,
Inc. (1992), 63 Ohio St.3d 84, 94, 585 N.E.2d 384, 393. Now is
such time. Appellants urge us to recognize a cause of action
for loss of parental consortium. We decline to create such a
cause of action.
This court has previously refused to recognize a cause of
action by a child for loss of parental consortium. In Kane v.
Quigley (1964), 1 Ohio St.2d 1, 30 O.O.2d 1, 203 N.E.2d 338,
this court stated that there is no common-law or statutory
basis for a child's claim for loss of parental consortium.
Kane involved a claim by children that the defendant had
induced their father to abandon his family. The court
concluded that "[t]here is no legal right in a child to
maintain *** an action for alienation of affections since that
cause of action is based upon the right of consortium." Id. at
3, 30 O.O.2d at 2, 203 N.E.2d at 340. Kane has generally been
followed by Ohio appellate courts. Masitto v. Robie (1985), 21
Ohio App.3d 170, 21 OBR 181, 486 N.E.2d 1258; Sanders v. Mt.
Sinai Hospital (1985), 21 Ohio App.3d 249, 21 OBR 292, 487
N.E.2d 588; Viock v. Stowe-Woodward Co. (Mar. 14, 1986), Erie
App. No. E-84-27, unreported; and Kukarola v. Gualtieri (Jan.
18, 1989), Summit App. No. 13637, unreported. See, also,
Gibson v. Johnston (App. 1956), 75 Ohio Law Abs. 413, 144
N.E.2d 310, appeal dismissed (1957), 166 Ohio St. 288, 2 O.O.2d
174, 141 N.E.2d 767. But, see, Farley v. Progressive Cas. Ins.
Co. (Feb. 21, 1992), Lucas App. No. L-90-323, unreported, 1992
WL 32111.
Appellants contend that we should now recognize such a
cause of action to eliminate the anomaly in the law that a
child whose parent is killed by a tortfeasor is permitted to
recover for his or her loss under the wrongful-death statute,
whereas a child whose parent is severely injured but is not
killed can recover nothing. Such an argument on its face is
persuasive. However, it does not survive close analysis.
Appellants' claim is significantly different from a
wrongful-death claim. A child's claim for loss of
companionship, love, association, moral support, and guidance
(appellants' claim) rests upon a moral obligation, not an
obligation enforceable in law. As the court in Kane noted: "A
child may indeed expect that his parent will have affection for
him. This may be a moral obligation, but no legal obligation
exists. The sole legal obligation imposed upon the parent is
that of support." Kane, supra, 1 Ohio St.2d at 3, 30 O.O.2d at
2, 203 N.E.2d at 339.
Moreover, unlike the case where a child's parent is
killed, appellants' father is still living and can assert a
claim of his own for his injuries. If a parent is compensated
for loss of earnings and inability to care for his or her
children, a child's injury resulting from the parent's duty to
support the child will also be remedied. Where a parent does
not survive an accident, the means by which a child can recover

compensation for the loss of a parent's support and services is
through a wrongful-death action.
Appellants also urge us to recognize such a cause of
action because courts in other states have done so. As noted
in Bowen, supra, at 94, 585 N.E.2d at 393, fns. 9 and 10, the
highest courts of a number of states have recognized a cause of
action for loss of parental consortium against a tortfeasor,1
while a number have expressly declined to recognize such an
action.2 Numerous legal commentators have supported the
recognition of this cause of action.3 However, we believe the
view of a majority of states refusing to recognize such a cause
of action in the absence of legislation is the better view and
is consistent with the prior decision of this court in Kane.
There are a number of policy reasons for not creating a
cause of action in a minor child for loss of consortium of a
severely injured parent. The court in Kane, supra, at 3, 30
O.O.2d at 2, 203 N.E.2d at 339, noted the following: "Several
reasons have been advanced as justifying the refusal to allow
recovery by children, i.e., that this invades the province of
the Legislature, that there is a danger of multiplicity of
suits, that there is a possibility of fraud, and that it would
place the love and affection of the parent on a commercial
basis." Other courts have emphasized additional reasons for
not recognizing the cause of action. These include the absence
of any enforceable claim on the child's part to the parent's
services, the absence of precedent, the possible overlap with
the parent's recovery, the possibility of upsetting settlements
between tortfeasors and parents, the increase of insurance
costs, and the public policy expressed in some jurisdictions in
the enactment of "heart balm" statutes. Clark v. Suncoast
Hosp., Inc. (Fla. App. 1976), 338 So.2d 1117, 1118-1119, citing
Note (1956), 54 Mich.L.Rev. 1023, 1024-1025.
Finally, we decline to recognize a new cause of action for
loss of parental consortium because we believe the
responsibility for changing public policy to permit recovery
for loss of parental consortium rests with the General
Assembly, not this court. The General Assembly has provided
for recovery upon proper proof for the loss of support,
services, society, prospective inheritance and mental anguish
in a wrongful-death action. R.C. 2125.02(B). Under its
constitutional powers, the General Assembly may create a new
cause of action for loss of parental consortium in cases where
a parent is injured but survives the negligent or intentional
conduct of a third-party tortfeasor. There is no better
example of an issue that should be determined by the
legislative process where arguments in support of and opposed
to the proposed remedy may be fully aired and debated.
Appellants also seek recovery for the emotional distress
suffered by them as a result of their father's injuries. In
the absence of statutory provision therefor, Ohio courts have
limited recovery for negligent infliction of emotional distress
to such instances as where one was a bystander to an accident
or was in fear of physical consequences to his own person.
Paugh v. Hanks (1983), 6 Ohio St.3d 72, 6 OBR 114, 451 N.E.2d
759; Criswell v. Brentwood Hosp. (1989), 49 Ohio App.3d 163,
551 N.E.2d 1315. Therefore, because appellants' claim does not
arise out of such circumstances, they fail to state a claim for

emotional distress under Ohio law.
For the foregoing reasons, we hold that under Ohio law, a
child does not have a cause of action for loss of consortium
against a third-party tortfeasor who negligently or
intentionally injures the child's parent.
Therefore, the judgment of the court of appeals is
affirmed.
Judgment affirmed.
Holmes, Wright and H. Brown, JJ., concur.
Sweeney, Douglas and Resnick, JJ., dissent.
FOOTNOTES:
1 See, e.g., Hibpshman v. Prudhoe Bay Supply, Inc.
(Alaska 1987), 734 P.2d 991; Villareal v. State Dept. of
Transp. (1989), 160 Ariz. 474, 774 P.2d 213; Ferriter v. Daniel
O'Connell's Sons, Inc. (1980), 381 Mass. 507, 413 N.E.2d 690;
Berger v. Weber (1981), 411 Mich. 1, 303 N.W.2d 424; Williams
v. Hook (Okla. 1990), 804 P.2d 1131; Reagan v. Vaughn (Tex.
1990), 804 S.W.2d 463; Hay v. Medical Ctr. Hosp. of Vermont
(1985), 145 Vt. 533, 496 A.2d 939; Ueland v. Reynolds Metals
Co. (1984), 103 Wash. 2d 131, 691 P.2d 190; Belcher v. Goins
(1990), 184 W.Va. 395, 400 S.E.2d 830; Theama v. Kenosha
(1984), 117 Wis. 2d 508, 344 N.W.2d 513: Nulle v.
Gillette-Campbell Cty. Joint Powers Fire Bd. (Wyo. 1990), 797
P.2d 1171. See, also, Higley v. Kramer (La.App. 1991), 581
So.2d 273, writ denied (1991), 583 So.2d 483; and Pence v. Fox
(1991), 248 Mont. 521, 813 P.2d 429.
2 See, e.g., Gray v. Suggs (1987), 292 Ark. 19, 728
S.W.2d 148; Lee v. Colorado Dept. of Health (Colo. 1986), 718
P.2d 221; Zorzos v. Rosen (Fla. 1985), 467 So.2d 305; Dearborn
Fabricating & Engineering Corp., Inc. v. Wickham (Ind. 1990),
551 N.E.2d 1135; Schmeck v. Shawnee (1982), 231 Kan. 588, 647
P.2d 1263; Durepo v. Fishman (Me. 1987), 533 A.2d 264; Salin v.
Kloempken (Minn. 1982), 322 N.W.2d 736; Russell v. Salem
Transp. Co., Inc. (1972), 61 N.J. 502, 295 A.2d 862; Vaughn v.
Clarkson (1989), 324 N.C. 108, 376 S.E.2d 236; Morgel v. Winger
(N.D. 1980), 290 N.W.2d 266; and Norwest v. Presbyterian
Intercommunity Hosp. (1982), 293 Ore. 543, 652 P.2d 318. See,
also, Borer v. American Airlines, Inc. (1977), 19 Cal.3d 441,
138 Cal. Rptr. 302, 563 P.2d 858; Hinde v. Butler (1979), 35
Conn. Supp. 292, 408 A.2d 668; Jones v. Lifespring, Inc.
(D.D.C. 1988), 713 F.Supp. 426; W.J. Bremer Co., Inc. v.
Graham (1983), 169 Ga.App. 115, 312 S.E.2d 806, writ denied
(1984), 252 Ga. 36, 312 S.E.2d 787; Green v. A.B. Hagglund &
Soner (D.Idaho 1986), 634 F.Supp. 790; Van de Veire v. Sears,
Roebuck & Co. (1989), 178 Ill.App.3d 794, 127 Ill.Dec. 912, 533
N.E.2d 994; Annis v. Butler Mfg. Co. (D.Kan. 1989), 715 F.Supp.
328; Gaver v. Harrant (1989), 316 Md. 17, 557 A.2d 210; Barbera
v. Brod-Dugan Co. (Mo.App. 1989), 770 S.W.2d 318; Hoesing v.
Sears, Roebuck & Co. (D.Neb. 1980), 484 F.Supp. 478; DeAngelis
v. Lutheran Med. Ctr. (1983), 58 N.Y.2d 1053, 462 N.Y.S.2d 626,
449 N.E.2d 406; Steiner v. Bell Tel. Co. (1986), 358 Pa.Super.
505, 517 A.2d 1348, affirmed (1988), 518 Pa. 57, 540 A.2d 266;
Still v. Baptist Hosp., Inc. (Tenn.App. 1988), 755 S.W.2d 807;
and Wollam v. Kennecott Corp. (D.Utah 1986), 648 F.Supp. 160.
3 Prosser & Keeton on Torts (5 Ed. 1984) 935-936,
Section 125; Comment, What About the Children? Toward an
Expansion of Loss of Consortium Recovery in the District of

Columbia (1991), 41 Am.U.L.Rev. 107; Note, Parental Consortium
in Florida: Our Children Have No Place to Turn (1988), 13 Nova
L.Rev. 295; Lambert, Damages: Loss of Parental Consortium
(1987), 30 ATLA L.Rep. 244, 253; Comment, Loss of Parental
Consortium: Why Children Should be Compensated (1986), 18
Pac.L.J. 233; Note, The Child's Cause of Action for Loss of
Consortium (1977), 5 San Fern.V.L.Rev. 449; Love, Tortious
Interference with the Parent-Child Relationship: Loss of an
Injured Person's Society and Companionship (1976), 51 Ind.L.J.
590; Note, The Child's Right to Sue for Loss of a Parent's
Love, Care, and Companionship Caused by Tortious Injury to the
Parent (1976), 56 B.U.L.Rev. 722; Comment, The Child's Claim
for Loss of Consortium Damages: A Logical and Sympathetic
Appeal (1975), 13 San Diego L.Rev. 231.
Alice Robie Resnick, J., dissenting. I must respectfully
dissent. A thorough examination of the issues will demonstrate
the following: (1) the majority's holding that Kane v. Quigley
(1964), 1 Ohio St.2d 1, 30 O.O.2d 1, 203 N.E.2d 338 controls
the disposition of this case is patently erroneous; and (2)
that case law from other jurisdictions represents a clear
progression in favor of allowing a child to recover for loss of
parental consortium.
I
The majority holds that in Kane, supra, this court
"refused to recognize a cause of action by a child for loss of
parental consortium." However, on close analysis, Kane does
not stand for this proposition; rather, the facts in Kane are
markedly different from the facts currently before this court.
In Kane, the court was faced with a situation where minor
children, through their mother as next friend, filed a
complaint against an "enticer," id. at 4, 30 O.O.2d at 2, 203
N.E.2d at 340, alleging that she had "wrongfully induced their
father to abandon his family, and that, as a result thereof,
they were deprived of his affections." Id. at 2, 30 O.O.2d at
1, 203 N.E.2d at 338. Therefore, Kane involved the refusal to
recognize an amatory action, since the cause of action was one
for alienation of affections brought on behalf of a father's
minor children. Herein, this court is asked to determine
whether a child has a claim for loss of parental consortium
against a tortfeasor who causes personal injury to the child's
parent. On its face, Kane is factually distinguishable from
the present case.
In addition, because Kane only rejected an alienation of
affection claim, its holding is legally distinguishable from,
and has no application to, the issues now before this court.
In Berger v. Weber (1978), 82 Mich.App. 199, 267 N.W.2d 124,
affirmed (1981), 411 Mich. 1, 303 N.W. 2d 424, the Court of
Appeals of Michigan was asked to uphold a claim for loss of
parental consortium, even though Michigan had statutorily
disallowed such a cause of action in cases of alienation of
affections. Noting the different policy grounds for the two
causes of action, the court stated:
"*** First we note that the abolition of this action has
not been considered inconsistent with the child's right to
recover for the negligent death of a parent under the wrongful
death statute ***. Secondly, the abolition of the alienation
of affections action rests on different policy grounds. As

noted by one law review commentator, when a parent is enticed
from the home, the value of the parental love and companionship
is open to question. The action is grounded on the theory that
an innocent spouse or parent has been maliciously enticed from
the home by a seductive intruder. The modern scenario is more
likely to disclose a disappointed spouse who is as much the
pursuer as the pursued. ***" (Footnote omitted.) Id. at 211,
267 N.W.2d at 129-130.
Hence, there are differing policy grounds for a claim for
alienation of affections and a claim for loss of parental
consortium in a personal injury action. The former is
disallowed because there is a legitimate debate as to the value
of the parental love and companionship when a parent leaves the
home to pursue an illicit relationship. But this is not
necessarily true as to all claims for loss of parental
consortium, particularly when it is the negligence of a
third-party tortfeasor who separates a parent from the home or
otherwise injures the parent-child relationship.
From the above, it can readily be seen that Kane is
clearly distinguishable on its facts, on the legal holding,
and on the underlying policy grounds. Therefore, Kane does not
preclude this court from analyzing whether Ohio should
recognize a claim for loss of parental consortium in personal
injury cases. Based on the above, the majority's reliance on
Kane is misplaced. The majority is correct, however, in noting
that several appellate districts in Ohio have refused to
recognize a claim for loss of parental consortium, and have
cited Kane for this proposition. Yet, the Sixth District Court
of Appeals has recently recognized a claim for loss of parental
consortium. In Farley v. Progressive Cas. Ins. Co. (Feb. 21,
1992), Lucas App. No. L-90-323, unreported, the court found
that Kane was not controlling, and rejected the line of
appellate cases that applied Kane to claims for loss of
parental consortium as being either summary in nature or
outdated. Upon thoroughly tracing the treatment this issue has
received in Ohio appellate courts, and disapproving its own
prior decision which had cited Kane with approval, the Farley
court, with Judge James R. Sherck writing for a unanimous
court, cogently stated as follows:
"We decline to follow these appellate court decisions.
"In 1986, this court, in Viock v. Stowe-Woodward Company
(Mar. 14, 1986), Erie App. No. E-84-27, unreported, reversed a
trial court's award for damages to four minor children on a
loss of parental consortium claim in a personal injury case,
citing Kane v. Quigley, supra. This court is mindful of the
advisability of following the prior holdings of the court.
However, the law is not static, but ever evolving and we would
prefer to admit our reasoning on an earlier occasion was
deficient than to perpetuate error for the sake of mere
consistency. We agree with the remarks made by Justice Smith
of the Supreme Court of Michigan in Montgomery v. Stephan
(1960), 359 Mich. 33, 101 N.W.2d 227, where that court first
recognized the loss of consortium claim of a spouse:
"'Were we to rule upon precedent alone, were stability the
only reason for our being, we would have no trouble with this
case. We would simply tell the woman to begone, and to take
her shattered husband with her, that we need no longer be

affronted by a sight so repulsive. In doing so we would have
vast support from the dusty books. But dust [from] the
decision would remain in our mouths through the years ahead, a
reproach to law and conscience alike. Our oath is to do
justice, not perpetuate error.' Id. at 37-38, 101 N.W.2d at
229.
"In retrospect, we believe that our statement in Viock,
supra, that a loss of parental consortium claim in an injury
case is 'substantially similar' to a loss of parental
consortium claim in an alienation of affections case misses the
mark. We now believe the issue before us is more complex and
that we erred in dismissing the loss of parental consortium
claim in Viock with merely a reference to Kane v. Quigley and
no more. We believe this issue deserves a much greater and
more in-depth analysis than it was given in Viock; that
analysis follows." Id. at 7-8.
II
Since Kane is distinguishable and should not bind this
court's analysis, and since there is no controlling authority
from this court, other jurisdictions will be consulted for
guidance. As a preliminary matter, it should be noted that a
cause of action for loss of parental consortium "was unknown at
common law, and prior to 1980 no state had recognized such a
cause of action. Although a majority of states have refused to
recognize such a claim, a growing number of jurisdictions,
thirteen, have found sound reasons for extending this right to
children of injured parents." (Footnotes omitted.) Farley,
supra, at 9.
The thirteen states that have recognized a claim for loss
of parental consortium have done so in the following cases:
Hibpshman v. Prudhoe Bay Supply, Inc. (Alaska 1987), 734 P.2d
991; Villareal v. Arizona Dept. of Transp. (1989), 160 Ariz.
474, 774 P.2d 213; Weitl v. Moes (Iowa 1981), 311 N.W.2d 259;
Ferriter v. Daniel O'Connell's Sons, Inc. (1980), 381 Mass.
507, 413 N.E.2d 690; Berger v. Weber (1981), 411 Mich. 1, 303
N.W.2d 424; Pence v. Fox (1991), 248 Mont 521, 813 P.2d 429;
Williams v. Hook (Okla. 1990), 804 P.2d 1131; Reagan v. Vaughn
(Tex. 1990), 804 S.W.2d 463; Hay v. Medical Ctr. Hosp. of
Vermont (1985), 145 Vt. 533, 496 A.2d 939; Ueland v. Pengo
Hydra-Pull Corp. (1984), 103 Wash.2d 131, 691 P.2d 190; Belcher
v. Goins (W.Va. 1990), 400 S.E.2d 830; Theama v. Kenosha
(1984), 117 Wis.2d 508, 344 N.W.2d 513; and Nulle v.
Gillette-Campbell Cty. Joint Powers Fire Bd. (Wyo. 1990), 797
P.2d 1171. As of 1990, twenty-seven jurisdictions continued to
refuse to recognize this cause of action. See Reagan v.
Vaughn, supra, 804 S.W.2d 463, 477-478, Hecht, J., concurring
and dissenting, for a listing of these states. The
unmistakable trend, however, is toward recognition of this type
of claim. Moreover, with regard to assessing the number of
jurisdictions which have considered the issue at hand, the
wisdom of the Supreme Court of Alaska in Hibpshman v. Prudhoe
Bay Supply, Inc. (Alaska 1987), 734 P.2d 991, is particularly
instructive: "[W]e are not 'bound by the mere weight of
judicial precedent but rather by the rule which embodies the
more persuasive reasoning.'" Id. at 994, fn. 8, quoting Hebel
v. Hebel (Alaska 1967), 435 P.2d 8, 9.
A

The courts which have recognized a claim for loss of
parental consortium have delineated several reasons for
breaking with the majority view. Interestingly enough, the
United States District Court for the Southern District of Ohio
had occasion to address whether this very court would part from
the majority of states and recognize a claim for loss of
parental consortium. In Leach v. Newport Yellow Cab, Inc.
(S.D. Ohio 1985), 628 F.Supp. 293, the district court answered
this question in the affirmative, and held that this court
"would recognize the right of a child to recover for loss of
parental consortium caused by the negligence of some third
person." Id. at 303. In reaching this conclusion, the federal
court "analyzed the classic reasons advanced by defendants for
not recognizing a loss of parental consortium claim and
concluded that the Supreme Court of Ohio had rejected the same
arguments in different circumstances and was therefore not
likely to be persuaded by them in this situation." Farley,
supra, at 8.
The first argument in favor of recognizing this cause of
action is that it would be inconsistent to allow a child to
recover for loss of parental consortium when a parent is
killed, but not when a parent is severely injured. In other
words, because a child may now recover for loss of parental
consortium via a wrongful death action, R.C. 2125.02, it would
create an anomaly to disallow a claim for loss of parental
consortium in cases such as the one at hand, where the parent
is seriously injured but not killed. On this point, the court
in Farley, supra, stated the following:
"*** it would be inconsistent to allow recovery in one
situation but not in the other since '*** often death is
separated from severe injury by mere fortuity. *** Both may
cause a deleterious impact on the quality of consortium.'
Villareal, supra, *** at 774 P.2d 218. It has further been
noted that '[s]urely the child's loss of the parent's love,
care, companionship, and guidance is nearly the same in both
situations.' Veland, supra, *** at 691 P.2d 192. One court
noted that the injury to the child may even be worse if the
parent is injured but does not die. 'Because a child has to
deal with the day-to-day realities of the disability of a
severely injured parent, the child may suffer more intense and
enduring mental anguish and suffering than would be the case if
the parent died.' Williams, supra, *** at 804 P.2d 1136. We
agree with these courts and find that since Ohio allows for
recovery for loss of parental consortium when a parent dies, it
is incongruent not to allow such a recovery when the parent is
injured." Farley, supra, at 9-10.
A common counterargument to this rationale for allowing
recovery in these situations is that there is no inconsistency
with the wrongful death statutes because an injured parent has
his or her own cause of action, and part of their recovery will
compensate the children for loss of consortium. The majority
relies on this counterargument in stating that "[i]f a parent
is compensated for loss of earnings and inability to care for
his or her children, a child's injury resulting from the
parent's duty to support the child will also be remedied."
What the majority fears is the possibility of double recovery.
Once again, the appellate court in Farley, supra, provides

insightful analysis of this issue:
"*** Appellee in this case alleges that allowing a
separate cause of action for the child's loss of parental
consortium when the parent does not die will result in double
recovery. The common argument is that 'juries already award
damages for loss or impairment of parental consortium in a
nonfatal injury case as an undisclosed part of the parent's
recovery of noneconomic damages.' [Emphasis sic.] Belcher,
supra, *** at 400 S.E.2d 838.
"However, many courts have rejected this argument. In
Williams v. Hook, supra, *** the Supreme Court of Oklahoma
stated:
"'Duplicity of recovery is probably the most touted reason
for denying recognition of the cause of action. However, it is
also the most easily disposed of once the nature of the cause
of action for loss of parental consortium is understood.
Pecuniary damages such as lost income which might be used for
the benefit of a child or for the cost of substitute child care
services are damages recoverable in the parent's action. The
entire sum which would have been available as a resource for
the parent to provide support and benefits to the child, be
they essential or recreational, is recovered by the parent. A
cause of action for loss of parental consortium is limited
primarily to an award based on the emotional suffering of the
child, and recovery is limited to loss of the parent's society
and companionship. *** There is no need for the child to
recover for economic disadvantages it might suffer due to the
parent's injury. That item is recoverable by the parent. A
proper jury instruction that the child's damages are separate
and distinct from the parent's injury will prevent double
recovery on items considered in the parent's award.' Id., at
804 P.2d 1135 (footnotes omitted)." (Footnote omitted.)
Farley, supra, at 10-11.
The Supreme Court of West Virginia has even suggested that
the possibility of double recovery is a reason for allowing a
minor child to recover for loss of parental consortium:
"*** This argument [double recovery], however, actually is
support for open recognition of the minor child's action. The
double recovery problem is easily eliminated by limiting the
injured parent's recovery in this area to the loss or
impairment of the parent's pecuniary ability to support the
child; similarly, the child's cause of action would be limited
to the loss of the parent's society, companionship and the
like. *** Rather than having juries make blind calculations of
the minor child's loss in determining an award to the parent,
the minor child's loss would be argued openly in court and the
jury would be instructed to consider the minor child's loss
separately.***" (Emphasis sic.) Belcher, supra, 184 W.Va. at
403, 400 S.E.2d 838.
Hence, the better-reasoned and more fundamentally sound
approach is to allow the child a separate cause of action, and
charge the jury accordingly. This will also ensure that the
jury is returning a well-reasoned award, which is fair to both
plaintiffs and defendants. Moreover, a separate recovery for
the child "guarantees that the award will be utilized for the
child's benefit and not by the parent for other purposes."
Theama, supra, 117 Wis.2d at 524, 344 N.W.2d at 520-521.

The second rationale in favor of recognizing an action
for loss of parental consortium is that since husbands and
wives can recover for loss of consortium when a spouse is
injured, Clouston v. Remlinger Oldsmobile Cadillac, Inc.
(1970), 22 Ohio St. 2d 65, 51 O.O.2d 96, 258 N.E.2d 230, and
since a parent can recover for loss of consortium when his or
her child is injured, Norvell v. Cuyahoga Cty. Hosp. (1983), 11
Ohio App.3d 70, 11 OBR 120, 463 N.E.2d 111, it is only logical
that children should be allowed to recover for similar injuries
when a parent is injured. California, like the majority of
this court, has rejected this argument. In Borer v. American
Airlines, Inc. (1977), 19 Cal.3d 441, 138 Cal.Rptr. 302, 563
P.2d 858, the court reasoned that a spouse's claim for loss of
consortium is different from that of a child in that spousal
consortium claims are grounded on loss of sexual services while
a child's claim for loss of parental consortium is not. This
position is invalid for two reasons. First, loss of spousal
consortium is not limited to sexual services but rather
consists of society, affection and companionship. The loss of
sexual services is but one part of a spouse's claim for loss of
consortium, and "permitting a husband or wife but not children
to recover for loss of consortium erroneously suggests that an
adult is more likely to suffer emotional injury than a child."
Ueland, supra, at 103 Wash.2d 134, 691 P.2d at 192. In
addition, the Supreme Court of Texas has stated that "[t]here
is no principled reason to accord the parental-child
relationship second class status ***. The obvious and
unquestionable significance of the parent-child relationship
compels our recognition of a cause of action for loss of
parental consortium." Reagan v. Vaughn, supra, 804 S.W.2d at
466.
But more important, the analysis of the Supreme Court of
California in Borer, supra, is completely stripped of all
credibility when it is realized that a parent can recover for
loss of services of a child, where there is no element of loss
of sexual services. In Norvell, supra, the Court of Appeals
for Cuyahoga County, in an opinion by Judge Richard Markus,
held that parents could recover for the loss of the services of
a child, and that this included loss of society, services,
companionship, comfort, love and solace. Id., 11 Ohio App.3d
at 72, 11 OBR at 123, 463 N.E.2d at 114. Therefore, the
difference in a spousal consortium action and a child's action
for loss of parental consortium, i.e., the lack of sexual
relations in the latter, does not warrant the conclusion that a
child's consortium action should be disallowed.
The third rationale for recognizing a child's action for
loss of parental consortium is that when a parent is injured,
the child suffers a real and debilitating loss which deserves
compensation. The Supreme Court of Iowa has echoed this
concern:
"*** [T]o recognize a right of recovery for a parent's
loss of a child's consortium, and not for a child's loss of a
parent's consortium, runs counter to the fact that in any
disruption of the parent-child relationship, it is probably the
child who suffers most.
"'Since the child in his formative years requires
emotional nurture to develop properly, the loss of love, care

and companionship is likely to have a more severe effect on him
than on an adult; and society has a strong interest in seeing
that the child's emotional development proceeds along healthy
lines. Moreover, an adult is in a better position than a child
to adjust to the loss of a family member's love, care and
companionship through his own resources. He is capable of
developing new relationships in the hope of replacing some of
the emotional warmth of which he has been deprived. A child,
however, is relatively powerless to initiate new relationships
that might mitigate the effect of his deprivation. Legal
redress may be the child's only means of mitigating the effect
of his loss.'" Weitl, supra, 311 N.W.2d at 269, quoting Note,
The Child's Right to Sue for Loss of Parental Love, Care and
Companionship Caused by Tortious Injury to the Parent (1976),
56 B.U.L.Rev. 722, 742.
Despite the acknowledgment of the loss to a child when a
parent is injured, arguments are raised that any award may be
speculative, or that it would place the love and affection of
the parent on a commercial basis. The appellate court in
Farley, supra, addressed this point:
"*** Obviously, monetary damages do not truly compensate
any physical or psychic injury, but money is the only
compensation available in cases where it is impossible to undo
the harm that has been done. Therefore, we cannot agree with
the Supreme Court of California, which stated:
"'[M]onetary compensation will not enable plaintiffs to
regain the companionship and guidance of a mother; it will
simply establish a fund so that upon reaching adulthood, when
plaintiffs will be less in need of maternal guidance, they will
be unusually wealthy men and women. To say that plaintiffs
have been "compensated" for their loss is superficial; in
reality they have suffered a loss for which they can never be
compensated; they have obtained, instead, a future benefit
essentially unrelated to that loss.' *** [Borer, supra, 563
P.2d] at 862.
"This seems to be an unnecessarily harsh viewpoint when
courts all across the country award money damages on a daily
basis to 'compensate' for the loss of a leg, the loss of sexual
services of a spouse, or even the loss of privacy." Farley,
supra, at 14.
I would reiterate the brutal harshness of the California
court's position by noting that when one spouse recovers for
loss of consortium, courts uniformly award money damages. How
is it that in that circumstance, the spouse who seeks damages
for loss of consortium has not also suffered a loss "for which
they can never be compensated"? Such a view is nothing short
of insensitive, and of tenuous legal significance. Instead, I
strongly believe Ohio should join those states which recognize
the legitimate and real loss to a child when a parent is
injured, and that this loss should be separately compensable by
a child's action for loss of parental consortium.
B
The majority points to several policy reasons for
rejecting a claim for loss of parental consortium. For
example, the majority states that the possibility of fraud is a
concern. How is this any less a concern in a spousal
consortium action, or any civil cause of action for that

matter? The problem of double recovery with the injured
parent's cause of action has been addressed above; so too has
the issue of placing a dollar value on the love and affection
of a parent. On this claim, the Supreme Court of Alaska
stated: "We see no reason to consider the calculation of
damages for a child's loss of parental consortium any more
speculative or difficult than that necessary in any other
consortium, wrongful death, emotional distress, or pain and
suffering actions." Hibpshman, supra, 734 P.2d at 996. The
other reasons listed by the majority for denying a child's
claim for loss of parental consortium are likewise without
merit.
The only realistic concern expressed by the majority is
the problematic area regarding multiple suits. Yet, the Sixth
District Court of Appeals, in Farley, supra, considered this
question and reached a very coherent, sensible solution - one
that I recommend this court adopt. That court framed and
answered the issue as follows:
"*** R.C. 2305.16 tolls the statute of limitations for
minors until they reach the age of majority. Thus, a minor
would potentially have many years after the parent's injury to
bring a cause of action for loss of parental consortium. This
would impede settlement of the injured parent's claim and the
spouse of the injured parent's loss of consortium claim, since
a tortfeasor, or his insurance company, would be most likely to
resist settling a portion of the damages arising from one
injury without settling all of them. Further, if a case were
not settled, the injured parent and spouse could file their
lawsuit within two years from the date of injury and a separate
lawsuit could potentially be filed by each child many years
later.
"This problem has been dealt with in other jurisdictions
by requiring joinder of all minors' consortium claims with the
injured parent's claim whenever feasible. See, e.g.,
Hibpshman, supra, *** at 734 P.2d 997; Weitl, supra, *** at 311
N.W.2d 268; Ueland, supra, *** at 691 P.2d 194; and Hay, supra,
*** at 496 A.2d 943. We believe that this is a sensible
solution to the problem and hold that a child's loss of
parental consortium claim must be joined with the injured
parent's claim whenever feasible."
C
Lastly, I am compelled to comment on the majority's
conclusion to deny a cause of action for loss of parental
consortium "because we believe the responsibility for changing
public policy to permit recovery *** rests with the General
Assembly, not this court." It is the responsibility of this
court to see that justice and fairness are available to all. A
great injustice occurs when a child whose parent is killed by a
third-party tortfeasor is permitted to recover for loss of
consortium, but a child whose parent is catastrophically
injured is precluded from recovering for loss of consortium.
Often, in the latter instance, a child suffers more greatly and
the loss is more profound. The child must daily endure the
absence of companionship and guidance of the injured parent; at
the same time, the child must cope with the reality of the
parent's debilitating physical injury. A child is incapable
under these circumstances of ever filling the void that is left

because the parent is physically present, yet unable to fill
the role of protector, friend, and teacher. I agree with the
wisdom and words of the Supreme Court of Michigan when it
stated the following:
"*** [A]ctions by parents for loss of a child's services
and medical expenses and actions for loss of spousal consortium
were created and developed by the judiciary. At the present
time, children are prevented from recovering for loss of
parental consortium by judicial decision. The Court should
remove the obstacle. We do not regard the cause of action
contemplated here so complex that we should defer action to the
Legislature." Berger v. Weber (1981), 411 Mich. 1, 17, 303
N.W.2d 424, 427.
Conclusion
I firmly believe that none of the obstacles advanced by
the majority prevents this court from recognizing a child's
claim for loss of parental consortium. None of these perceived
impediments is so great that it cannot be dealt with and
overcome. Based on the case law and analysis in the preceding
discussion, I would adopt the holding of the appellate court in
Farley, supra, and find that a minor child may maintain a cause
of action for loss of parental consortium when a parent is
injured by a tortfeasor. Loss of parental consortium should be
defined as loss of society, affection, comfort, guidance, and
counsel. Loss of support is not an element of a claim for loss
of parental consortium, since the injured parent may recover
for his or her financial losses resulting from his or her
physical injuries directly from the tortfeasor. A proper jury
instruction will avoid any possibility of a double recovery.
I would also hold that a child's claim for loss of
parental consortium is derivative of the underlying claim of
the injured parent. Thus, the viability of the claim for loss
of parental consortium is wholly dependent upon the viability
of the injured parent's personal injury cause of action. This
holding should be applied prospectively, and only to the
instant case and to any actions arising on or after the date of
this decision.
For all of the reasons set forth above, I vigorously
dissent.
Sweeney and Douglas, JJ., concur in the foregoing
dissenting opinion.