Brief Fact Summary. The Fifth District Court, Washington County (Utah) dismissed claims against Defendant doctors for negligent infliction of emotional distress and loss of filial consortium in relation to injuries sustained by Mr. and Ms. Bouchers’ son (Plaintiffs), Daniel Boucher, following surgery. Plaintiffs appealed.
Synopsis of Rule of Law.
Plaintiffs, who suffered emotional distress because of another’s negligence, though they do not suffer any physical impact, may recover damages only if they are placed in actual physical peril and fear for their own safety.
Loss of consortium claims are based on the recognition of a legally protected interest in personal relationships. Accordingly, if one member of the relationship is tortiously injured, the non-injured party has a cause of action to recover for damage to their relational interest, the loss of the injured party’s company, society, cooperation, and affection.
* Was the harm suffered by the parents of a severely injured child the type recognized so as to fulfill the elements of a claim for negligent infliction of emotional distress?
* May parents bring a cause of action for loss of consortium in connection with the tortious injury of their child?
Held. The decision of the lower court was affirmed. The court concluded that the parents did not allege sufficient facts to state a claim of negligent infliction of emotional distress as the claim was defined in Utah. The court declined to extend loss of consortium rights to parents of a tortiously injured child.
Dissent. The dissent takes issue with the majority’s rationale for precluding parent’s recovery on the theory of loss of consortium for tortious injury to their children. To adopt such a cause of action would open the floodgates of litigation. The dissent asserts,
“[t]he law protects all kinds of human values that cannot be measured by a slide rule, such as marital and filial consortium in wrongful death actions, reputation, privacy, and emotional security from outrageous conduct.” The dissent also describes the nexus between physical and emotional well-being: “[m]oreover, medical science and psychology have clearly established that a person’s physical health and emotional health are often closely related and that emotional and psychological trauma may have a cause and effect relationship on physical health. The loss of a child’s consortium may well affect the physical well-being of parents.” The dissent acknowledges the need for circumspection concerning the adoption of litigious redress for harm such as the type suffered in this case, concluding, “[c]ertainly, the law need not recognize causes of action for ephemeral injuries or for every form of personal distress that arises from living in a necessarily rough and tumble world. But that is no
t what this case is about. There is every reason to believe that the loss in this case is both permanent and profound.”
Courts almost universally permit a spouse to recover against a person who seriously injures the other spouse, usually known as a “loss of consortium” claim. Such claims were eventually extended to include recovery for more than the economic loss of the of the injured spouse’s household services. Loss of consortium claims presently allows a plaintiff to recover damages for such things as loss of companionship and other forms of emotional support. As the court in Boucher observed, “[a]t common law, the father of a tortiously injured child did have a cause of action to recover the value of the child’s loss of services and the medical expenses incurred on the child’s behalf.” The court drew a distinction as to basis for such recovery. “However, this action was based on a father’s right to his minor children’s services and a father’s obligation to pay his minor children’s medical expenses. This right of recovery, therefore, did not extend beyond these two elements of damages, nor did it ex
tend to injuries involving adult or emancipated children,” and, the court concluded, “no widely accepted development has occurred that allows recovery in cases involving adult children, nor has any widely accepted development occurred that allows recovery for the loss of a child’s society and affection.”
The issue surrounding the negligent infliction of emotional distress claim was more straightforward. The court applied the zone of danger test, i.e., allowing a claim only if the plaintiffs are placed in actual physical peril and fear for their own safety.