Parental consortium: "Have you checked the children's claims?"(Florida law)

• Author: Alvarez, Richard C.

In the terrifying prologue of one of the 1970s' more controversial films, When a Stranger Calls, a babysitter is troubled by a caller who repeatedly asks, "Have you checked the children?" The ordinary troubles of having a crank caller soon become real terror once the calls are traced to an upstairs telephone. Unfortunately, the rest of the film disregards the promise of its opening in exchange for the wasteful complexity of a police drama.

Much of the same can be said of F.S. [sections] 768.0415.

F.S. [sections] 768.0415 is a little-known provision by which a child's right to parental consortium is established. Under [sections] 768.0415, "[a] person who, through negligence, causes significant permanent injury to the natural or adoptive parent of an unmarried dependent resulting in a permanent total disability [is] liable to the dependent for damages, including damages for permanent loss of services, comfort, companionship, and society."[1]

Many practitioners are unaware of this statute and its history. The legislature enacted [sections] 768.0415 after the Florida Supreme Court declined to create the right to parental consortium in Zorzos v. Rosen, 467 So. 2d 305 (Fla. 1985). In Zorzos, the Supreme Court was asked to decide whether Florida should recognize a cause of action for parental consortium when a parent is injured by the negligence of a third party.[2] The court responded somewhat ambivalently. It acknowledged that such a cause had been rejected previously by Florida's lower courts.[3] It then acknowledged that it could recognize the cause of action even though the legislature had not done so previously. In the end, the Florida Supreme Court decided that "it is wiser to leave it to the legislative branch[.]"[4]

In 1988, the Florida Legislature noted the Supreme Court's ambivalence in Zorzos and enacted F.S. [sections] 768.0415.[5] However, very few cases brought on behalf of an injured parent currently include the derivative claims of the parent's children.[6] Even fewer cases involving [sections] 768.0415 have been reported by Florida's courts. In fact, a search of the reporters produces only six cases even citing the statute.[7]

The promise of a statutory right to parental consortium apparently has been lost in the wasteful complexity of the statute's terms. As noted in the jury instructions on parental consortium, F.S. [sections] 768.0415 does not define "significant permanent injury," "dependent" or "permanent total disability."[8] The statute further refers only to "negligence" without distinguishing between common law negligence and "negligence...