MAINE REFUSES TO RECOGNIZE A
CAUSE OF ACTION FOR LOSS OF
PARENTAL CONSORTIUM: DUREPO V.
FISHMAN
I
In Durepo v.
Fishman,1
INTRODUCTION
two minor children2 filed suit to recover
for the loss of parental consortium- resulting from injuries allegedly
suffered by their mother when she was negligently treated by a physician.4 The defendant moved to dismiss the claim for failure to
state a claim upon which relief can be granted.' The trial court
granted the motion, and the plaintiffs appealed to the Supreme Judicial Court of Maine, sitting as the Law Court.
The case invited the Law Court to declare for the first time in
1.
533 A.2d 264 (Me. 1987).
2. The children, Chris and Travis, were represented by Patricia and Paul Durepo
as next friends and parents. Id. at 264.
3. Consortium is defined as the "conjugal fellowship of husband and wife, and the
right of each to the company, society, co-operation, affection, and aid of the other in
every conjugal relation." BLACK'S LAW DICTIONARY 280 (5th ed. 1979). For an excellent
analysis of loss of consortium as a cause of action, see Comment, Who Should Recover for Loss of Consortium?, 35 MAINE L RaV. 295 (1983).
Although historically consortium has usually been used as a concept in the spousal
context, "[i]t is useful to refer also to the parent-child relationship as constituting
consortium." H. CLARK. JR. THE LAW oF DoMEsTic RELATIONS INTHE UNITED STATES §
12.1, at 651 (2d ed. 1987). Professor Clark notes: "The important aspects of the parent-child relationship, apart from the parent's duty of support, are the intangibles
which follow from living together as a family, the affection, society, companionship,
the mutual learning, the moral support given and received." Id.
Parental consortium has received considerable scholarly discussion. See, e.g., Love,
Tortious Interference with the Parent-ChildRelationship: Loss of an Injured Person's Society and Companionship,51 IND. U. 590 (1976); Petrilli, A Child'sRight to
Collect for Parental Consortium Where Parent is Seriously Injured, 26 J. FAM. L
317 (1987-1988); Comment, Family Law-Child's Cause of Action for Loss of Parental Society and CompanionshipDue to a Negligently Caused Nonfatal Injury to a
Parent: Norwest v. Presbyterian Intercommunity Hospital, 652 P.2d 318 (Or. 1982),
17 SUFFOLK UL. REv. 776 (1983); Note, Child'sRight to Sue for Negligent Disruption
of ParentalConsortium, 22 WASHBURN L.J. 78 (1982); Note, Expanding Loss of Consortium in Vermont: Developing a New Doctrine, 12 VT. L Rav. 157 (1987); Note,
Minors Have Independent Cause of Action for Loss of ParentalConsortium Resulting from Injuries Inflicted Upon a Parent by Negligent Third Party. Hibpshman v.
Prudhoe Bay Supply, 734 P.2d 991 (Alaska 1987), 18 Cum&. L REv. 473 (1988). See
also Annotation, Child's Right of Action for Loss of Support, Training,ParentalAttention, or the Like Against a Third Person Negligently Injuring Parent, 11
A.LR.4TH 549 (1982).
4. The claims of Patricia Durepo and Paul Durepo for their injuries were the subject of an action filed simultaneously with this one in the superior court. Patricia
Durepo & Paul Durepo v. Eric Fishman, M.D., No. 85-256 (filed Oct. 23, 1985).
5. Durepo v. Fishman, 533 A.2d at 264 (citing M.R. Civ. P. 12(b)(6)).
MAINE LAW REVIEW
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Maine whether a minor child should possess an independent right of
action for loss of parental consortium against a third person who
negligently causes physical injury to a parent.6 The Law Court declined that invitation and deferred to the Legislature for consideration of the public policy issues involved in this proposed extension
of tort liability.7 The question now becomes: what should the Legis-
lature do?
This Note considers whether the Legislature should statutorily
adopt a right of action for loss of parental consortium. The Note
reviews the development of the claim for loss of consortium, tracing
it from its origin in the property rights of men to the modern view
which stresses relational interests in care, comfort, society, and companionship. Analysis of contemporary rulings and approaches with
respect to parental consortium demonstrates the growth of a small
but significant minority viewpoint recognizing the cause of action
denied by the Law Court in Durepo. After weighing the variety of
considerations on each side of the issue, this Note concludes that
the Maine Legislature should indeed exercise its lawmaking power
in order to create a right of action for loss of parental consortium.
II.
DEVELOPMENT OF THE
Loss
OF CONSORTIUM CAUSE OF ACTION
Courts have long recognized a husband's right to recover damages
for loss of consortium where a tortious injury to his wife resulted in
injury to the spousal relationship.8 The husband's interest in his relation with his wife first received recognition based on the value of
the services she could provide him." As observed by Professors Prosser and Keeton, the husband's interest eventually broadened into a
bundle of legal rights consisting of "the alliterative trio of the services, society, and sexual intercourse of the wife." 10 To these, modern law added a fourth, that of conjugal affection.1" In Maine, the
law has long provided a remedy for the husband's loss of his wife's
2
consortium.1
Since a woman could not bring a suit in her own name at common
law, the wife had no right to bring an action for interference with
6. Id.
7. Id. at 265.
8. Comment, Who Should Recover for Loss of Consortium?, 35 MAINE L. REV.
295, 295 (1983) (noting that the husband has been allowed recovery for loss of consortium "for more than three centuries").
9. W. PROSSER & W. KEETON, THE LAW OF TORTS, § 124, at 916 (5th ed. 1984).
10. Id.
11. Id.
12. See, e.g., Wood v. Maine Central R.R., 101 Me. 469, 479-80 (1906) (upholding
damages awarded to a husband for injuries to his wife and basing the computation of
those damages largely on the "expense to supplement the household duties which
could have been performed by his wife").
1989]
PARENTAL CONSORTIUM
her relationship with her husband.'" With the adoption of the married women's acts 4 in the nineteenth century, the unity fiction of
husband and wife1 5 dissolved, and women acquired independent le-
gal stature. Some courts ruled that the abolition of the husband's
proprietary interest in the wife foreclosed him from maintaining an
action to recover for the loss of his wife's consortium.10 Most courts,
however, followed the lead of Hitaffer v. Argonne Co. 11 in which the
court held that the wife could finally maintain an action, independent from that of her husband, for lost consortium caused by negligent injury to her husband.1 8 Since the Hitaffer decision, at least
thirty-two jurisdictions have recognized the wife's right of action for
loss of consortium resulting from negligent injury to the husband."'
13. w. PROSSER & W. KEETON, supra note 9, § 124, at 916.
14. For a collection of early examples of the married women's acts, see 3 C.
VERmR, AmiucA FAMuLY LAWS § 167, at 171-85 (1935). These acts, adopted in the
mid-1800s, generally gave a woman the right to own and control property apart from
that of her husband and to sue and be sued without joinder of her husband. Id. at §
179 (discussing suits by and against the wife).
15. At common law, the husband and wife were regarded as one person, and that
person was the husband. See 1 W. BLACKSrONE, CoeatErwms 0442.
16. See, e.g., Marri v. Stamford St. R.R, 84 Conn. 9, 78 A. 582 (1911). This action
was brought to recover damages resulting from a collision between a trolley car operated by the defendant's servant and a horse-drawn carriage in which the plaintiff and
his wife were riding. Id. at 10, 78 A. at 582. The superior court awarded damages to
the plaintiff husband for the loss of his wife's consortium, distinguishing the right to
consortium from that to services. Id. at 11, 78 A. at 582. The appellate court reversed
the judgment, holding that the historic reasons for awarding damages based on the
wife's service were no longer valid. Id. at 24, 78 A. at 587.
See also Bolger v. Boston Elevated Ry., 205 Mass. 420, 91 N.E. 389 (1910) (holding
that a husband, when seeking damages for the negligent injury of his wife, can only
recover for the expenses to which he was put in her care, and can recover nothing for
loss of consortium).
17. 183 F.2d 811 (D.C. Cir. 1950), cert. denied, 340 U.S. 852 (1950), overruled on
other grounds, Smither & Co., Inc. v. Coles, 242 F.2d 220 (D.C. Cir. 1957), cert. denied, 354 U.S. 914 (1957). A wife brought this action against her husband's employer
to recover for loss of consortium due to severe and permanent injuries to her husband
caused by the employer's negligence. Id. at 812. The court of appeals held that a wife
has a cause of action for loss of consortium due to a negligent injury to her husband,
and that consortium includes not only marital services but also love, affection, companionship, and sexual relations. Id. at 819.
18. Id. at 816-17.
19. Note, Tort Law - Minors Have Independent Cause of Action for Loss of
Parental Consortium Resulting from Injuries Inflicted Upon a Parent by Negligent
Third Party- Hibpshman v. Prudhoe Bay Supply, 734 P.2d 991 (Alaska 1987), 18
Cuhm. L REv. 473, 480 n.51 (1988) (collecting cases). See Duffy v. Lipsman-Fulkerson
& Co., 200 F. Supp. 71 (D. Mont. 1961) (applying Montana law); Cooney v. Moomaw,
109 F. Supp. 448 (D. Neb. 1953); Schreiner v. Fruit, 519 P.2d 462 (Alaska 1974); City
of Glendale v. Bradshaw, 108 Ariz. 582, 503 P.2d 803 (1972); Missouri Pac. Transp.
Co. v. Miller, 227 Ark. 351, 299 S.W.2d 41 (1957); Crouch v. West, 29 Colo. App. 72,
477 P.2d 805 (1970); Yonner v. Adams, 167 A.2d 717 (Del. Super. Ct. 1961); Gates v.
Foley, 247 So. 2d 40 (Fla. 1971); Brown v. Georgia-Tennessee Coaches, Inc. 77 S.E.2d
24 (1953); Nichols v. Sonneman, 91 Idaho 199, 418 P.2d 562 (1966); Dini v. Naiditch,
MAINE LAW REVIEW
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Like many states, Maine statutorily established the wife's right to
recover for loss of consortium.2 0 In 1965, the Law Court refused to
recognize the wife's right in Potter v. Schafter,21 stating a refusal to
usurp legislative authority.2 2 Two years later, the Legislature responded to the Law Court's reticence and enacted a statute establishing the wife's right of action. 23 More recently, the Law Court
held in Sawyer v. Bailey 4 that a person engaged to be married had
no action for loss of consortium when his fiancee was injured. s
Although parental recovery for lost filial consortium has been
given less widespread recognition than the spousal right of action for
marital consortium, 26 some states have adopted statutes permitting
recovery for non-pecuniary losses resulting from negligent disruption of filial consortium.2 7 As explained below, the parental right to
recover for lost filial consortium has also been judicially recognized.
In 1975, the Wisconsin Supreme Court allowed parents to pursue
a claim for loss of filial consortium. In Shockley v. Prier,2 the court
20 Ill. 2d 406, 170 N.E.2d 881 (1960); Troue v. Marker, 253 Ind. 284, 252 N.E.2d 800
(1969); Acuff v. Schmit, 248 Iowa 272, 78 N.W.2d 480 (1956); Kotsiris v. Ling, 451
S.W.2d 411 (Ky. 1970); Deems v. Western Maryland Ry., 247 Md. 95, 231 A.2d 514
(1967); Diaz v. Eli Lilly & Co., 364 Mass. 153, 302 N.E.2d 555 (1973); Montgomery v.
Stephan, 101 N.W.2d 227 (1960); Thill v. Modern Erecting Co., 284 Minn. 508, 170
N.W.2d 865 (1969); Tribble v. Gregory, 288 So. 2d 13 (Miss. 1974); Novak v. Kansas
City Transit, Inc., 365 S.W.2d 539 (Mo. 1963) (applying Nebraska law); General Elec.
Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972); Bromfield v. Seybolt Motors, Inc., 109
N.H. 501, 256 A.2d 151 (1969); Ekalo v. Constructive Serv. Corp. of Am., 46 N.J. 82,
215 A.2d 1 (1965); Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 239
N.E.2d 897, 293 N.Y.S.2d 305 (1968); Clouston v. Remlinger Oldsmobile Cadillac,
Inc., 22 Ohio St. 2d 65, 258 N.E.2d 230 (1970); Smith v. Smith, 205 Or. 286, 287 P.2d
572 (1955); Hopkins v. Blanco, 224 Pa. Super. 116, 302 A.2d 855 (1973), afl'd, 457 Pa.
90, 320 A.2d 139 (1974); Hoekstra v. Helgeland, 78 S.D. 82, 98 N.W.2d 669 (1959);
Burroughs v. Jordan, 224 Tenn. 418, 456 S.W.2d 652 (1970); Guilmette v. Alexander,
128 Vt. 116, 259 A.2d 12 (1969); Lundgren v. Whitney's, Inc., 94 Wash. 2d 91, 614
P.2d 1272 (1980); Moran v. Quality Aluminum Casting Co., 34 Wis. 2d 542, 150
N.W.2d 137 (1967).
20. ME. REv. STAT. ANN. tit. 19, § 167-A (1981) ("A married woman may bring a
civil action in her own name for loss of consortium of her husband.").
21. 161 Me. 340, 211 A.2d 891 (1965).
22. Id. at 340, 211 A.2d at 893.
23.
P.L. 1967, ch. 13 (codified at ME. REV. STAT. ANN. tit. 19, § 167-A (1981)).
24. 413 A.2d 165 (Me. 1980).
25. Id. at 169. For a discussion of Sawyer v. Bailey, see Comment, Extending the
Rights to Unmarried Cohabitants, 129 U. PA. L. REV. 911, 919-21 (1981).
26. Comment, Child's Right to Sue for Negligent Disruption of ParentalConsortium, 22 WASH. L.J. 78, 84 (1982).
27. See IDAHO CODE § 5-310 (Supp. 1988) (as construed in Hayward v. Yost, 72
Idaho 415, 242 P.2d 971 (1952)); WASH. REv. CODE § 4.24.010 (1988).
28. 66 Wis. 2d 394, 225 N.W.2d 495 (1975) (overruling Callies v. Reliance Laundry
Co., 188 Wis. 376, 206 N.W. 198 (1925)). In Shockley v. Prier,the complaint alleged
that, due to the negligence of the defendants, premature infant Paul was given excessive amounts of oxygen which caused retrolental fibroplasia, resulting in total and
permanent blindness and disfigurement. The complaint set forth a cause of action for
1989]
PARENTAL CONSORTIUM
held that parents could sue two doctors and a hospital for injuries
sustained by their infant son resulting in the loss of the child's aid,
comfort, society, and companionship, provided that the parents'
cause of action was combined with that of the child for the child's
personal injuries.2 9 The court reasoned that the parents' requests for
damages for lost society and companionship of a child should be
sustained in negligence actions because the Wisconsin wrongful
death statute"0 contemplated lost society and companionship as an
element of damages.3 1 The court also noted that the significance of
children's relationships to the family had changed.32 The value of
children to their parents no longer lies in the economic assets they
provide, but in the emotional and sentimental needs they fulfill.s
Thus, the court concluded that the basis for a parent's action to recover lost filial consortium should be changed from loss of the
child's services to lost companionship and society.3' Arguments similar to those in Shockley have been advanced to support the child's
action for loss of parental consortium. 5
While no clear trend has emerged favoring the acceptance of a
damages sustained by the infant Paul and also a cause of action by Paul's father that
he was "deprived of his minor son's aid, comfort, society and companionship, and will
in the future continue to be deprived of the same, to which he is entitled." A similar
cause of action was set forth for Paul's mother. Id. at 395-96, 225 N.W.2d at 497.
29. Id. at 404, 225 N.W.2d at 501. See also Frank v. Superior Court, 150 Ariz. 228,
722 P.2d 955 (1986).
30. Wis. STAT. ANN. § 895.04(4) (Supp. 1988-1989). The statute provides:
Judgment for damages for pecuniary injury from wrongful death may be
awarded to any person entitled to bring a wrongful death action. Additional
damages not to exceed $50,000 for loss of society and companionship may
be awarded to the spouse ...
children
..
or parents of the deceased.
Id.
31. Shockley v. Prier, 66 Wis. 2d at 400, 225 N.W.2d at 499.
32. Id. at 401, 225 N.W.2d at 499.
33. Id.
34. Id.
35. See, e.g., Glicklich v. Spievack, 16 Mass. App. Ct 488, 452 N.E.2d 287, appeal
denied, 390 Mass. 1103, 454 N.E.2d 1276 (1983). In Glicklich v. Spievach, a mother
and her minor son sought recovery for lost consortium arising out of the alleged failure of the defendant physicians to diagnose and treat the mother's breast cancer. The
court ruled that the jury could properly award damages to the son for loss of parental
society and guidance. In so holding, the court explained that the plaintiffs need not
show that the parent was the principal wage earner in order for the child to recover
for loss of parental society. The court further explained that the claim was allowable
if the child was simply living in the injured parent's household and was dependent on
the parent for management of the child's needs and for emotional guidance and support. Id. at 496, 452 N.E.2d at 292. See also Theama v. City of Kenosha, 117 Wis. 2d
500, 344 N.W.2d 513 (1984) (holding that a minor child may recover for the loss of a
parent's society and companionship caused by negligent injury to the parent when his
motorcycle hit a pothole on an improperly lighted street). In City of Kenosha, the
court applied the Shockley rationale to the claim for loss of parental consortium. Id.
at 514, 344 N.W.2d at 515.
MAINE LAW REVIEW
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claim for loss of parental consortium, courts in at least seven states
(all in the 1980s) have recognized the cause of action: Alaska
(1987),11 Vermont (1985),sl Washington (1984),31 Wisconsin (1984),1,
Massachusetts (1983),40 Michigan (1981),"' and Iowa (1981). 4 2 De36. Hibpshman v. Prudhoe Bay Supply, 734 P.2d 991 (Alaska 1987) (holding that
minor children have an independent cause of action for loss of parental consortium
resulting from injuries tortiously inflicted on their parent by a third person). See
generally Note, Minors Have Independent Cause of Action for Loss of ParentalConsortium Resulting from InjuriesInflicted Upon a Parent by Negligent Third Party:
Hibpshman v. Prudhoe Bay Supply, 734 P.2d 991 (Alaska 1987), 18 CuMB. L. REv. 473
(1988).
37. Hay v. Medical Center Hosp., 145 Vt. 533, 496 A.2d 939 (1985). In Hay, a
mother was injured while a patient at the defendant medical center, and as a result of
her injuries, she was rendered permanently comatose. Her husband filed a complaint
on behalf of his minor son for his loss of parental consortium resulting from the deprivation of his mother's "physical, moral, and intellectual training" as well as the
deprivation of her "affection, society, love, protection, and companionship." Id. at
535, 496 A.2d at 940. The Vermont Supreme Court concluded that a minor child
should have the right to sue for damages for loss of parental consortium when the
parent has been rendered permanently comatose. Id. at 545, 496 A.2d at 946. See
generally Note, Expanding Loss of Consortium in Vermont: Developing a New Doctrine, 12 VT. L. REV. 157 (1987).
38. Ueland v. Reynolds Metals Co., 103 Wash. 2d 131, 691 P.2d 190 (1984). In
Ueland, a father suffered severe and permanent mental and physical disabilities
when struck by a metal cable while employed as a lineman for Seattle City Light.
Two minor children sued in separate causes of action for loss of parental consortium.
Id. at 103, 691 P.2d at 191. The court held that the actions may be brought; however,
such an action must be joined with the parent's underlying claim unless the child can
show why joinder is not feasible. Id. at 140, 691 P.2d at 195.
39. Theama v. City of Kenosha, 117 Wis. 2d 508, 344 N.W.2d 513 (1984). In that
case, a father hit a pothole while riding his motorcycle, severely injuring his head and
internal organs. He suffered permanent brain damage and impairment of visual,
perceptual, motor, and speech functions, as well as other physical and emotional effects. He sued for his own damages, his wife sued for loss of consortium, and his
children sued for loss of care, companionship, society, protection, training, and guidance because of their father's extensive injuries. Id. at 509-10, 344 N.W.2d at 513.
The Wisconsin Supreme Court held that a "child may bring a cause of action for the
loss of a parent's society and companionship resulting from another's negligence." Id.
at 527, 344 N.W.2d at 522.
40. Glicklich v. Spievack, 16 Mass. App. 488, 452 N.E.2d 287, appeal denied, 390
Mass. 1103, 454 N.E.2d 1276 (1983); Ferriter v. Daniel O'Connell's Sons, Inc., 381
Mass. 507, 413 N.E.2d 690 (1980).
41. Berger v. Weber, 411 Mich. 1, 10-11, 303 N.W.2d 424, 427 (1981) (holding that
"a child may recover for loss of a parent's society and companionship caused by tortious injury to the parent.").
42. Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981). In Weitl v. Moes, a mother was
rendered blind and severely brain damaged as a result of the defendants' negligence.
Id. at 261. The Iowa Supreme Court held that a minor has an independent cause of
action in Iowa for loss of the society and companionship of a parent who is tortiously
injured by a third party so as to cause a significant disruption or diminution of the
parent-child relationship. Id. at 270.
Weitl v. Moes was overruled in part by Audubon-Exira Ready Mix, Inc. v. Illinois
Cent. Gulf R.R., 335 N.W.2d 148, 152 (Iowa 1983) (stating that "ftio the extent our
1989]
PARENTAL CONSORTIUM
spite a growing interest in the issue, however, the great majority of
states have not yet adopted a cause of action for loss of parental
consortium. 43 The Restatement (Second) of Torts also rejects the
cause of action.44 Although courts have acknowledged the natural
justice of a child's claim for loss of parental consortium' 5 and have
been aware of the extensive commentary favoring such claims,'0 the
claims have generally been denied. The following arguments are
most commonly advanced in opposition to the recognition of loss of
plurality opinion in Weitl (1) granted a child an independent right to bring such an
action and (2) to the extent that it interpreted section 613.15 to exclude intangible
consortium damages, and (3) to the extent it limited the period of damages to the
child's minority, it is overruled.").
43. The following states have rejected a cause of action for loss of parental consortium: Pleasant v. Washington Sand & Gravel Co., 262 F.2d 471 (D.C. Cir. 1958);
Green v. Hagglund & Soner, 634 F. Supp. 790 (D. Idaho 1986) (applying Idaho law);
Turner v. Atlantic Coast Line R.R., 159 F. Supp. 590 (N.D. Ga. 1958) (applying South
Carolina law); Jeune v. Del E. Webb Constr. Co., 77 Ariz. 226, 269 P.2d 723 (1954);
Gray v. Suggs, 292 Ark. 19, 728 S.W.2d 148 (1987); Ledger v. Tippitt, 164 Cal. App.
3d 625, 210 Cal. Rptr. 814 (1985); Zorzos v. Rosen, 467 So. 2d 305 (Fla. 1985); Halberg
App. 3d 1022, 507
v. Young, 41 Haw. 634 (1957); Hearn v. Beelman Truck Co., 154 Ill.
N.E.2d 1295 (App. Ct. 1987); Schmeck v. City of Shawnee, 231 Kan. 588, 647 P.2d
1263 (1982); Hickman v. Parish of E. Baton Rouge, 314 So. 2d 486 (La. Ct. App.
1975); Durepo v. Fishman, 533 A.2d 264 (Me. 1987); Salin v. Kloempken, 322 N.W.2d
736 (Minn. 1982); Bradford v. Union Elec. Co., 598 S.W.2d 149 (Mo. CL App. 1979);
General Elec. Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972); Russell v. Salem Transp.
Co., 61 N.J. 502, 295 A.2d 862 (1972); De Angelis v. Lutheran Medical Center, 58
N.Y.2d 1053, 449 N.E.2d 406, 462 N.Y.S.2d 626 (1983); Morgel v. Winger, 290 N.W.2d
266 (N.D. 1980); Masitto v. Robie, 21 Ohio App. 3d 170. 486 N.E.2d 1258 (CL App.
1985); Sanders v. Mt.Sinai Hosp., 21 Ohio App. 3d 249, 487 N.E.2d 588 (Ct. App.
1985); Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 652 P.2d 318
(1982), noted in 17 SUFFOLK U.L. REv. 776 (1983); Steiner v. Bell Tel. Co., 358 Pa.
Super. 505, 517 A.2d 1348 (Super. Ct 1986); Bennight v. Western Auto Supply Co.,
670 S.W.2d 373 (Tex Ct. App. 1984).
44. RESTATEMENT (SEcoND) OF TORTS § 707A (1977). The Restatement provides:
"One who by reason of his tortious conduct is liable to a parent for illness or other
bodily harm is not liable to a minor child for resulting loss of parental support and
care." Id.
45. See Borer v. American Airlines, Inc., 19 Cal. 3d 441, 453, 138 Cal. Rptr. 302,
310, 563 P.2d 858, 866 (1977) ("We are keenly aware of the need of children for the
love, affection, society and guidance of their parents; any injury which diminishes the
ability of a parent to meet these needs is plainly a family tragedy, harming all members of that community.").
46. Prosser and Keeton have noted:
[A]ble criticisms have been mounted against the traditional rule, and it
must now be recognized that the more liberal view may well gain further
adherents. In addition to this it must be said that a number of jurisdictions,
including some which deny the child's consortium claim, do recognize a
claim for emotional distress or at least psychic injury from such distress
when one family member is injured in the presence of another, or a nervous
shock to a family member has resulted from substantially contemporaneous
observance of an injury or death to another family member.
W. PROSSER & W. KEsToN,THE LAW OF ToRTS § 125, at 936 (5th ed. 1984).
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parental consortium as a cause of action: (1) lack of precedent; 47 (2)
more properly a legislative decision; 48 (3) difficulty in assessing damages; 49 (4) likelihood of multiple claims and increased litigation;10 (5)
potential for double recovery; 51 and (6) probable increased insurance
premiums and costs to society.2
III. THE Durepo DECISION
In Durepo v. Fishman,53 Patricia and Paul Durepo brought an action on behalf of their two minor children, Chris and Travis Durepo,
ages 4 and 11, for loss of parental consortium5 4 resulting from severe, permanent, and painful injury to Patricia's left leg, allegedly
caused by the negligent treatment of a physician. 55 After the supe47. See Jeune v. Del. E. Webb Constr. Co., 77 Ariz. 226, 269 P.2d 723 (1954)
(holding that there is no cause of action for mother or child because there has never
been one recognized under the common law). See also De Angelis v. Lutheran Medical Center, 58 N.Y.2d 1053, 449 N.E.2d 406, 462 N.Y.S.2d 626 (1983) (explaining that
there is no reason to grant a recovery not yet existing at common law and noting that
logic, science, and policy all interact to limit exposure to tort liability in order to draw
a line between granting recovery and extending liability).
48. See Zorzos v. Rosen, 467 So. 2d 305, 306-307 (Fla. 1985) (where a father was
injured in an auto accident and his children sued for the lost care, comfort, society,
parental companionship, instruction, and guidance of their injured father, the court
held that it was up to the Legislature to create an action for the loss of parental
consortium); Graham v. Ford Motor Co., 721 S.W.2d 554, 555 (Tex. Ct. App. 1986)
(where a father was seriously injured and his wife sued on behalf of their three minor
children for loss of "'society, companionship, nurture, moral support and parental
guidance,'" the court held that it was not for the intermediate court to create a new
cause of action since creating such an action was for the Legislature or Supreme
Court of Texas).
49. See Borer v. American Airlines, Inc., 19 Cal. 3d 441, 563 P.2d 858, 138 Cal.
Rptr. 302 (1977). In Borer, the court rejected nine children's claims for loss of parental consortium when their mother was injured. While sympathetic to the children's
need for love, affection, society, and guidance from a parent, the court concluded that
monetary compensation would inadequately alleviate the tragedy; that damages
would be difficult to measure; and that extended and disproportionate liability might
result. Id. at 447-49, 563 P.2d at 862-63, 138 Cal. Rptr. at 307-308.
50. See Mueller v. Hellrung Constr. Co., 107 Ill. App. 3d 337, 437 N.E.2d 789 (Ct.
App. 1982) (denying compensation for loss of parental consortium because of fear of
increased litigation and multiple claims and the possibility of greatly expanded
liability).
51. See Hoffman v. Dautel, 189 Kan. 165, 169, 368 P.2d 57, 60 (1962) (holding
that children should have no right to sue because of double recovery possibilities).
52. See Mueller v. Hellrung Constr. Co., 107 Ill. App. 3d 337, 437 N.E.2d 789 (Ct.
App. 1982) (denying the child's independent claim for loss of consortium when his
parent was injured because of the potential for burgeoning insurance, court and social
costs).
53. 533 A.2d 264 (Me. 1987).
54. Loss of parental consortium was defined by the court as loss of a parent's
"'love, society, companionship, guidance and care.'" Id. at 264.
55. Brief of Appellee at 1, Durepo v. Fishman, 533 A.2d 264 (Me. 1987) (No.
ARO-87-68).
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PARENTAL CONSORTIUM
rior court granted the defendant's motion to dismiss the complaint,
the plaintiffs appealed to the Maine Law Court, which affirmed the
dismissal, declining to recognize a child's independent right of action for the loss of parental consortium.
The plaintiffs advanced a variety of arguments on appeal in order
to establish that the action for loss of parental consortium possessed
"a sound basis in existing law." 5 They pointed analogically to
Maine's wrongful death statute which allows recovery "for the loss
of comfort, society and companionship of the deceased to the persons for whose benefit the action is brought," including minor children.57 They also quoted the opinion in Hay v. Medical Center Hospital, which stated that "it is inappropriate that a minor child may
recover such a loss if a parent is killed, but not if the parent is permanently comatose." 58
The plaintiffs asserted that the common law allowed compensation for injury to the parent-child relationship.0 They further ar56. Brief of Appellants at 5, Durepo v. Fishman, 533 A,2d 264 (Me. 1987) (No.
ARO-87-68).
57. Id. (quoting ME. REv. STAT. ANN. tit. 18-A, § 2-804(b) (Supp. 1988-1989)). The
Maine wrongful death statute provides:
Every such action shall be brought by and in the name of the personal representative of the deceased person, and the amount recovered in every such
action, except as otherwise provided, shall be for the exclusive benefit of
the surviving spouse, if no minor children, and of the children if no surviving spouse, and one-half for the exclusive benefit of the surviving spouse
and one-half for the exclusive benefit of the minor children to be divided
equally among them, if there are both surviving spouse and minor children,
and to the deceased's heirs to be distributed as provided in section 2-106, if
there is neither surviving spouse nor minor children. The jury may give
such damages as it shall deem a fair and just compensation with reference
to the pecuniary injuries resulting from such death to the persons for whose
benefit the action is brought, and in addition thereto shall give such damages as will compensate the estate of the deceased person for reasonable
expenses of medical, surgical and hospital care and treatment and for reasonable funeral expenses, and in addition thereto may give damages not
exceeding $50,000 for the loss of comfort, society and companionship of
the deceased to the persons for whose benefit the action is brought, provided that the action shall be commenced within 2 years after the decedent's death. If a claim under this section is settled without an action having been commenced, the amount paid in settlement shall be distributed as
provided in this subsection. No settlement on behalf of minor children shall
be valid unless approved by the court, as provided in Title 14, section 1605.
Ma. REV. STAT. ANN. tit. 18-A, § 2-804(b) (Supp. 1988-1989) (emphasis added).
58. Brief of Appellants at 5, Durepo v. Fishman, 533 A.2d 264 (Me. 1987) (No.
ARO-87-68) (quoting Hay v. Medical Center Hosp., 145 Vt. 533, 537, 496 A.2d 939,
941 (1985)).
59. Id. (stating that "the Massachusetts Supreme Judicial Court observed that
the actions of abduction and seduction protected the parent's sentiments by compensating tortious injury to the relationship with a child." (citing Ferriter v. Daniel
O'Connell's Sons, Inc., 381 Mass. 510-11 & 512-13 n.7, 413 N.E.2d 692-93 & 693-94
n.7 (1980))). The appellants also stated that an action for seduction had historically
MAINE LAW REVIEW
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gued that the child's loss of parental consortium is at least as deserving of judicial recognition as the spouse's loss of consortium,
citing the Hay court's insistence that the child is even more dependent on such a relationship than a spouse, and probably less likely
to be able to remedy a loss by independent action. 0
The plaintiffs recognized countervailing considerations such as the
possibility of increased litigation and the difficult task of measuring
monetary compensation for an intangible loss. But they also maintained that those concerns, if given determinative weight, would arbitrarily restrict the rights of a class of persons otherwise satisfying
the usual tests of foreseeability and causation."1 They urged the Law
Court not to leave the question to the Legislature, asserting that
"the Court's action in recognizing this claim would
. .
bring com-
mon law rights in line with contemporary conceptions of the family
'
unit and its internal relationships."62
The defendant, on appeal, argued that the Law Court had already
recognized that sound public policy required limitation of the right
of recovery for loss of consortium to those who are in a marital relationship at the time of the occurrence of the tortious conduct. 3 He
listed some of the policy considerations often cited in opposition to
the extension of liability for the loss of parental consortium: (1) loss
of consortium is an intangible, non-pecuniary loss, and monetary
compensation will not enable the plaintiffs to regain the companionship and guidance of their mother; (2) there is a dual threat of
double recovery by the child since juries may already compensate
the child for both loss of economic support and emotional loss by an
award to the parent; and (3) the social burden of providing damages
for loss of parental consortium is too high, including excessive insurance costs and social costs incurred by expending valuable judicial
resources to settle the claims that would clog the courts.0
Furthermore, he pointed to the inherent differences between an
action for loss of spousal consortium and an action for loss of parental consortium, focusing on the key issue of impairment or destruction of the sexual life of a couple in spousal consortium.6 5 The defendant also emphasized the potential for multiplication of actions
and damages if parental consortium claims are allowed, there being
been available under Maine law. Id. (citing Beaudette v. Gagne, 87 Me. 534, 93 A. 758
(1895)).
60. Brief of Appellants at 6, Durepo v. Fishman, 533 A.2d 264 (Me. 1987)
ARO-87-68) (citing Hay v. Medical Center Hosp., 145 Vt. at 537-38, 496 A.2d at
61. Brief of Appellants at 7, Durepo v. Fishman, 533 A.2d 264 (Me. 1987)
ARO-87-68).
62. Id. at 8.
63. Brief of Appellee at 4, Durepo v. Fishman, 533 A.2d 264 (Me. 1987)
ARO-87-68) (citing Sawyer v. Bailey, 413 A.2d 165, 168 (Me. 1980)).
64. Id. at 6-7.
65. Id. at 7.
(No.
942).
(No.
(No.
1989]
PARENTAL CONSORTIUM
only one spouse but potentially many children."' Finally, the defendant urged the Law Court to defer the question to the Legislature as the court had previously done7 with respect to the cause of
action for loss of spousal consortium.6
Citing Potter v. Schafter s and MacDonald v. MacDonald,0 the
Durepo court acknowledged that it "would not exceed the scope of
its powers as a common law court by newly creating for Maine a
child's cause of action for the loss of parental society and affection."' 0 Nevertheless, the court declined to expand the common law
in this area in which "judicial decree is no substitute for the exhaustive gathering of socio-economic facts and the public debate upon
the import of those facts that would occur before the Maine Legislature enacted so sweeping an embellishment on the existing tort law
of this state."' The court reasoned that the Legislature, and not the
judiciary, is institutionally equipped to gather information on such
questions as the following:
(i) whether there is any practical necessity for creating a separate
cause of action for a child whose parent has been negligently injured, (ii) what limiting principles as, for example, the age of the
child should circumscribe such a cause of action, (iii) what impact
would such a cause of action have on insurance rates and other
costs to the general public, and (iv) what, if any, limit on allowable
damages should be imposed as a matter of social policy.'
Maintaining that evaluation of the foregoing considerations was "essentially a political judgment," the court declined the plaintiff's invitation to recognize a right to recovery for lost parental
consortium. 7s
66. Id. at 7-8.
67. Id. at 9. See supra notes 20-23 and accompanying text.
68. 161 Me. 340, 342-43, 211 A.2d 891, 892-93 (1965) (explaining that the proposed creation of a new cause of action for a wife's loss of consortium occasioned by
her husband's injuries merited consideration by the Legislature rather than judicial
action).
69. 412 A.2d 71, 74 n.4 (Me. 1980) (noting that "the decision [in Potter v.
Schafter) was basically wrong in its intimations that action by the judiciary to change
the common law where there is involved a 'collision between the principle of stare
decisis and contemporary legal philosophy' is 'to usurp legislative authority.' ") (quoting Potter v. Schafter, 161 Me. 340, 342-43, 211 A.2d 891. 892-93 (1965)).
70. Durepo v. Fishman, 533 A.2d 264, 265 (Me. 1987).
71. Id.
72. Id.
73. Id. at 265-66. The court explained: "When as here that job depends so overwhelmingly on socioeconomic facts and questions of desirable social policy, rather
than on the application of established legal principles, the legislature, not the court,
should draw those lines." Id. at 266.
The court dismissed the analogy drawn by the appellants between Maine's wrongful death statute and the loss of parental consortium claim, pointing to the wrongful
death statute as an example of the sort of legislative decisionmaking that arguably is
warranted before creating a new torts claim. Id. at 265-66. See supra note 57 and
MAINE LAW REVIEW
[Vol. 41:165
Justice Nichols in dissent, joined by Justice Glassman, sharply
criticized the court's reticence and argued that the court should exercise its common law power and recognize the tort. He stressed the
guarantee made to Maine children by the Declaration of Rights in
the Maine Constitution: "Every person for an injury done him in his
person... shall have remedy by due course of law ....-7"He further noted that the Law Court had not hesitated to deal with questions of tort liability in the past and had courageously recognized
causes of action in prior decisions. 75 Believing that the court possessed a responsibility, to recognize the children's cause of action,
Justice Nichols maintained that "[t]o abrogate this responsibility today is to 'shirk [our] duty and retreat into the safe haven of deference to the legislature.' 1176
Justice Nichols asserted that the "right of these little children to
seek a remedy for their loss is one that should be judicially recognized now."'77 The dissent supported the latter assertion by advancing several convincing arguments. First, Justice Nichols maintained
that a remedy "should not be summarily dismissed because our
courts are already overcrowded or because it is possible insurance
costs may rise.'7 Second, he argued that recovery should not be denied simply because parental consortium damages may be speculative. He noted: "Patently, the damages for loss of parental consortium are no more speculative or difficult to calculate than damages
accompanying text.
74. Durepo v. Fishman, 533 A.2d at 266 (Nichols, J., dissenting) (quoting ME.
CONST. art. I, § 19). For discussion of section 19, see Comment, Article I, Section 19
of the Maine Constitution: The Forgotten Mandate, 21 MAINE L. REv. 83 (1969).
75. He stated specifically that the Law Court "historically has not hesitated to
deal with similar questions of tort liability and courageously has recognized causes of
action in areas where the law previously afforded no precedent." Durepo v. Fishman,
533 A.2d at 266 (Nichols, J., dissenting). As examples of the latter, he cited Davies v.
City of Bath, 364 A.2d 1269, 1273 (Me. 1976), in which the Law Court "abrogated the
doctrine of governmental immunity with all its economic consequences" and Estate of
Berthiaume v. Pratt, 365 A.2d 792, 794 (Me. 1976), in which "our Court did not hesitate to declare that a violation of one's right to privacy was an actionable tort, notwithstanding manifold questions of desirable social policy." Durepo v. Fishman, 533
A.2d at 266 (Nichols, J., dissenting). Justice Nichols also cited several instances in
which the Law Court had not deferred to legislative judgment in the family law
context:
Recovery for a husband's loss of consortium was judicially recognized without legislative action. Our Court also recognized a father's right to recover
damages resulting from the loss of services of an unemancipated minor
child. See, e.g., Emery v. Gowen, 4 Me. 33 (1826); Kennard v. Burton, 25
Me. 39 (1845); Beaudette v. Gagne, 87 Me. 534, 33 A. 23 (1895).
Id. at 268.
76. Id. (quoting Hay v. Medical Center Hosp., 145 Vt. 533, 543-44, 496 A.2d 939,
945 (1983)).
77. Id. at 267.
78. Id.
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PARENTAL CONSORTIUM
for the loss of spousal consortium, wrongful death, emotional distress or pain and suffering."" Justice Nichols also insisted that the
double recovery argument was similarly unpersuasive.80
The dissent agreed with the majority's statement that the Law
Court possessed sufficient judicial power to create a cause of action
for loss of parental consortium."1 Moreover, the dissent insisted that
the power should be exercised in this instance in order to remedy
incongruity in the law:
Adult children as well as minor children have a statutory right in
Maine to recover for the loss of comfort, society and companionship of a deceased parent. 18-A M.R.S.A. § 2-804(b) (Supp. 1986).
How anomalous it is to deny that relief to these minor children
when a parent may remain severely disabled or even comatose! A
child's loss is similar in both situations... . Whenever the injury
to the parent is relatively minor, the fact-finder can determine
what, if any, injury resulted to the child. As long as the injury is
severe enough to deprive the child of his parent's companionship
and guidance,
the parent should not have to die for the child to
82
gain relief.
Because of the evident anomaly resulting from denial of the claim,
Justice Nichols concluded his dissent by reiterating that the court
should "adapt[] the common law to meet new social demands...
[rather than] retreat into the safe haven of deference to the
legislature."' 3
IV. LEGISLATIVE RECOMMENDATIONS
While many commentators question the validity of leaving the decision concerning the creation of the loss of parental consortium
claim to legislatures,' there are some valid reasons that the Law
Court chose to proceed in this direction. In addition to the reasons
the court provided, two concerns suggest that the objectives of fairness and logical consistency in consortium recovery would be better
achieved through legislative action. 5 The first involves the fact that
the options available to the courts are arguably limited by existing
legislation. For example, the wife's right to recover for lost consor79. Id. at 268.
80. Id.
81. Id.
82. Id. at 268-69 (citations omitted).
83. Id. at 269. Compare supra note 76 and accompanying text.
84. See, e.g., Petrilli, A Child's Right to Collect for ParentalConsortium Where
Parent is Seriously Injured, 26 J. FAms L 317, 346-47 (1987-1988). See also Comment, Family Law-Child's Cause of Action for Loss of ParentalSociety and Companionship Due to a Negligently Caused Nonfatal Injury to a Parent: Normest v.
Presbyterian Intercommunity Hospital, 652 P.2d 318 (Or. 1982), 17 Sun'oLK U.L.
Rav. 776, 788 (1983).
85. Comment, supra note 8, at 311.
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tium in Maine was established by statute86 and the courts therefore
may not be free to expand such recovery judicially. 7 A second, related concern is the unlikelihood that a single case would present all
the issues with which a comprehensive solution should be
concerned."8
Despite such countervailing considerations, the Maine Legislature
should act to create a child's right to bring an action for loss of parental consortium. As observed by Justice Nichols, a variety of arguments warrant adoption of the cause of action.8 9 One argument is
most persuasive: the claim should be extended beyond the spousal
relationship in order to recognize the vital importance of other relationships within the family. Although the family unit may be a singular concept, it consists of various members. Incongruity results
when recovery is restricted to the husband and wife.
The family his been cited as perhaps this country's "most deeply
rooted social institution." 90 The United States Supreme Court has
repeatedly recognized the integrity of the family unit and afforded it
constitutional protection. 1 In order to safeguard family autonomy,
natural parents possess a fourteenth amendment liberty interest in
the care and custody of their children.92 Although there was once
some doubt about whether children had constitutional rights of
their own, it is now well established that the Constitution affords
protection to children independent of the protection it affords to
parents. 3 The change in the legal status of children has come even
more slowly than that of women, with many of the rights of minors
86. See supra notes 20-23 and accompanying text.
87. Comment, supra note 8,at 311.
88. Id. at 312.
89. See supra notes 74-83 and accompanying text.
90. Note, In Re Misty Lee H.: Application of the Best Interests Standard in Parental Rights Terminations,40 MAiNE L. REV. 157, 157 (1988). See Moore v. City of
E. Cleveland, 431 U.S. 494 (1977) (plurality opinion). Justice Powell explained: "Our
decisions establish that the Constitution protects the sanctity of the family precisely
because the institution of the family is deeply rooted in this Nation's history and
tradition." Id. at 503 (emphasis added).
91. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651 (1972) (explaining that the right
of a man "in the children he has sired and raised, undeniably warrants deference and,
absent a powerful countervailing interest, protection."); Prince v. Massachusetts, 321
U.S. 158, 166 (1944) ("It is cardinal with us that the custody, care and nurture of the
child reside first in the parents."); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (right
"to marry, establish a home and bring up children").
92. Santosky v. Kramer, 455 U.S. 745, 753 (1982) (parents have fundamental lib.
erty interest in care, custody, and management of their children). The fourteenth
amendment provides in relevant part: "No State shall ...deprive any person of life,
liberty or property without due process of law ... " U.S. CONsT. amend, XIV, § 1.
See also ME.CONsT. art I, § 6-A.
93. Comment, Developments in the Law - The Constitution and the Family, 93
HARV. L. REV. 1156, 1358 (1980).
19891
PARENTAL CONSORTIUM
being recognized only recently." Nevertheless, the trend seems
clear. Just as the married women's acts afforded women the opportunity to bring causes of action independent of their husbands,9 the
expansion of children's rights in recent years, coupled with the legal
recognition of the importance of the parent-child relationship, suggests that children should be afforded the right to bring an independent cause of action for the loss of parental consortium.
By leaving the decision about the establishment of an action for
loss of parental consortium to the Legislature, the Law Court has
provided the Legislature with an opportunity to take a comprehensive look at familial interests generally, and to make some determinations about whose interests should be protected and to what extent. Unlike the courts, which can only rule on the narrow facts
presented in a particular case, the Legislature can explore the nature of family relationships on a broader basis. Not only may the
Legislature examine the traditional nuclear family, but also nontraditional contexts such as single-parent households and heterosexual and homosexual relationships in which the partners are not legally married. The Legislature could settle the questions concerning
what constitutes a family unit and how close a familial relationship
must be to warrant a claim for loss of consortium.
The Legislature could also determine the limits of liability and
how the statute of limitations should govern the cause of action,
thus quieting some of the concerns expressed about soaring insurance rates, increased litigation, and multiple claims. More importantly, however, the public debate preceding the passage of legislation that would allow recovery to family members for lost
consortium could air issues concerning Maine's public policy of protecting children's rights and family relationships, as well as determine the probable effects on insurance rates.96 Rather than permitting loss of consortium to continue to develop in a piecemeal
fashion, Maine could take the lead in declaring a consistent, comprehensive plan aimed at the protection of all recognized relational
interests.
Legislation affecting consortium recovery has been prompted
more than once in the past by judicial reticence. 7 The Legislature
should seize the opportunity afforded by the court's decision in
94. See, e.g., Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503,
505-506 (1969) (holding that minors are afforded the protection of the free speech
clause of the first amendment and the due process clause of the fourteenth amendment); Brown v. Board of Educ., 347 U.S. 483 (1954) (extending equal protection to
black children).
95. See supra note 14.
96. For a discussion of liability insurance issues, see Petrilli, supra note 76, at
342-43.
97. Comment, supra note 8, at 312 n.74. See also supra notes 20-23 and accompa-
nying text.
180
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Durepo to establish consistency in the law by means of statutory
enactment. Failing to assume this responsibility will merely deflect
decisions about consortium and familial relations back to the Law
Court where progress is slow and comprehensiveness impossible.
Nancy Wanderer Mackenzie