Flawed Justice: Limitation of Parental Remedies for the Loss of Consortium of Adult Children

Publication year2004
CitationVol. 27 No. 03



Flawed Justice: Limitation of Parental Remedies for the Loss of Consortium of Adult Children

William S. Bailey(fn*)

I have often thought that if one of my children were to die, I would collapse from the pain.(fn1)

Media sage Marshall McLuhan observed in 1967 that our society is irretrievably mired in the past:The past went that-a-way. When faced with a totally new situation, we tend always to attach ourselves to the objects, to the flavor of the most recent past. We look at the present through a rear-view mirror. We march backwards into the future.(fn2)

Both statutory and common law chronically lags behind contemporary social conditions. While this promotes a certain level of stability in that unrest may result if the law is too far ahead of a comfortable majority,(fn3) this delay has the potential to unfairly disenfranchise others.

Justice is an abstract concept that can be difficult to achieve in real life. As observed by the Arizona Supreme Court, human relationships cannot be neatly boxed.(fn4) The ultimate goal of our legal system should be to study relationships with care, turning the knowledge gained into sound rules of law. Under the best of circumstances, "[t]he law does not fly in the face of nature, but rather acts in harmony with it."(fn5)

Intelligently defining the common law is not only the right, but also the obligation of the Judiciary.(fn6) The common law should be dynamic, undergoing a regular re-examination of the soundness of its precedents: The nature of the common law requires that each time a rule of law is applied, it be carefully scrutinized to make sure that the conditions and needs of the times have not so changed as to make further application of it the instrument of injustice. . . . Although the Legislature may of course speak to the subject, in the common law system the primary instruments of the evolution are the courts, adjudicating on a regular basis the rich variety of individual cases brought before them.(fn7)

A "rear-view mirror" approach does just the opposite, blindly following established precedent and wholly failing to question its application in light of societal changes or the unique facts of a particular case. Nowhere is the "rear-view mirror" orientation of the law more pronounced than in its approach to the right of parents to recover loss of consortium damages for serious injury to or the death of an adult child. Despite a substantial body of research and legal commentary over the last twenty-five years supporting an expansion of existing remedies to encompass the loss of an adult child,(fn8) the majority rule in American jurisprudence remains that parents cannot bring such a claim.(fn9) The majority rule of placing age limitations on common law parental remedies is largely based on two factors: the centuries-old view of children as property interests,(fn10) and Baker v. Bolton, an early 19th Century English case that has been criticized as fundamentally unsound for decades.(fn11)

Despite the intervening 130 years since the advent of child labor laws and mandatory education in the late 19th Century, the majority rule still adheres to the view of children as it was in Charles Dickens' time. The changed character of the parent-child relationship in 21st Century America has been studiously ignored. With an improved standard of living and reduced infant mortality that became the norm in America in the mid-20th Century, the view of children under the age of majority has shifted to objects of adoration rather than objects of economic value. This is particularly true after the Second World War ended and the "baby boom" began,(fn12) continuing on into the present.

Given this shift, it is not surprising that an impressive body of clinical research has developed over the last decade, demonstrating just how complex and multifaceted the emotional ties of the parent-child relationship are and how these ties continue to evolve and deepen over a life span.(fn13) The loss of or serious injury to a child at any age comes at an enormous emotional cost to parents, and social scientists have learned precisely how profound this nightmare is.(fn14) The rear-view mirror approach of the common law presumes a difference to these parents based on the age of the child that does not exist. It has now been conclusively shown that all such unfortunate parents go through a process of profound mental distress, grief, and depression for the rest of their lives.(fn15)

A new twist in the traditional economic loss analysis has also emerged, based on recent studies of caregiving by adult children to their aging parents. Due to an increased standard of living and more sophisticated medical care, Americans are living longer than ever.(fn16) When any child is killed, adult or minor, parents suffer a very real economic loss of a caretaker in their later years of physical infirmity.(fn17) Contrary to popular belief, adult children, not the government, provide a substantial amount of the care required by their infirm parents.(fn18) The loss of an adult child reduces the care options of such parents. As a result, the parents will likely have to purchase services that otherwise would have been provided by their wrongfully injured or killed adult child. Eliminating such caregivers for infirm parents who otherwise cannot afford to pay for them has the potential to shift a very real economic burden onto the taxpayers.

This article presents the inherent contradiction between a parent-child relationship that has steadily evolved from the early 20th Century to the present and the multitude of court decisions on damages that remain studiously ignorant of this shift. Part I of the article will set forth the common law origins of restrictions on recovery for wrongful death within the context of a shifting view of children from economic units to objects of adoration. Part II will examine the devastating impact that the loss of an adult child has on parents both from their perspectives and from now existing research. In the context of this body of evidence, and society's changed view of children, Part III will examine the inadequate development of wrongful death law since its common law origins. While a few forward thinking state supreme courts have taken a realistic look at this archaic and wrongful denial of loss of consortium damages to parents for their adult children,(fn19) these cases are beacons of rationality in a stare decisis wasteland. Only these few courts have seen all too clearly that the emperor of Baker v. Bolton has no clothes. Ultimately, the denial of any common law remedy for the parental loss of consortium of adult children is based on neither a correct reading of the law, nor on sound social policy. The unthinking embrace of Baker v. Bolton must, at long last, yield to the realities of the modern parent-child relationship in fashioning fair and just remedies for loss of consortium.

I. Historical Context

The common law view of children only in terms of their economic contributions to the family has endured for centuries, based on a way of life radically different from the present. In Leviathan, Thomas Hobbes wrote that 17th Century life was "solitary, poor[], nasty, brutish, and short."(fn20) This was especially true for children because most families made their living in agricultural pursuits, forcing them to put their children to work as soon as possible as a matter of economic necessity. Their only value was seen in what services they could perform for their parents and, consequently, the social values of that distant time only reflected concern for purely pecuniary losses. The common law protected property rights, but there was no recognition of any modern right to recovery for the loss of intangibles, such as love, companionship, or family ties.(fn21) A master had a cause of action when his servant's services were lost due to the negligence of a third party.(fn22) This cause of action later extended to husbands for the loss of services of a wife due to a tortfeasor's negligence.(fn23)

The economic value of children shifted in the industrial revolution of the 18th Century, both in the United States and Europe, when many were removed from farms to an urban life as wage earners in mills and factories.(fn24) Many of the first factory hands were women and children. When Samuel Slater opened his first mill in Pawtucket, Rhode Island in 1790, his work force consisted of seven boys and two girls, aged seven to eleven.(fn25)

The miserable plight of such factory children in the 19th Century was most effectively publicized by Charles Dickens, not only one of the greatest authors of all time, but a relentless social reformer.(fn26) When Dickens was given a report of the Children's Employment Commission by Dr. Southwood Smith, he learned of the hideous conditions to which even small children were subjected-e.g., seven-year-olds chained to loaded carts in dark tunnels, girls in ragged trousers working in the dark, often up to their knees in water, carrying heavy loads of coal, and deformed boys working fourteen hours a day in steel mills, struck with bars and burned by showers of sparks.(fn27) The fate of American children in the 19th Century was scarcely better than their English counterparts. The miseries of immigrant life in urban centers such as New York and Chicago...

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