The principal issues in this appeal are whether: (1) the named plaintiff, a high school principal who claims to have been wrongfully "constructively discharged" by the defendant board of education, was required to exhaust her administrative remedies under General Statutes (Rev. to 1991) § 10-151 (d),
In the original twelve count complaint,
Thereafter, the plaintiffs filed a substitute complaint reasserting the eight counts still in contention, namely, the four substantive counts by the plaintiff alleging
The defendants moved to dismiss the entire substitute complaint for lack of subject matter jurisdiction, on the grounds that: (1) the plaintiff had failed to exhaust her administrative remedies under § 10-151(d); (2) the plaintiff had failed to exhaust the grievance and arbitration procedures of an agreement between the board of education and the East Haddam Administrators' Association, of which the plaintiff had been a member (agreement); and (3) the claims for loss of consortium were merely derivative of the plaintiffs substantive claims. In connection with this motion to dismiss, the defendants filed an affidavit of Thompson, together with a copy of the agreement and excerpts
WRONGFUL CONSTRUCTIVE DISCHARGE
We first address the plaintiffs contention that the trial court had subject matter jurisdiction over her wrongful constructive discharge claim because under the circumstances of this case, she was not required to exhaust the administrative procedures of § 10-151 (d) or the grievance procedures of the agreement before asserting that claim. The plaintiff agrees that in the absence of an applicable exception to the exhaustion doctrine, the failure by a tenured teacher to invoke the administrative procedures of § 10-151 (d) deprives the court of jurisdiction over a claim of wrongful termination. School Administrators Assn. v. Dow, 200 Conn. 376, 384-85, 511 A.2d 1012 (1986); LaCroix v. Board of Education, 199 Conn. 70, 83-84, 505 A.2d 1233 (1986). The plaintiff argues, however, that a claim of constructive discharge comes within the exception to the exhaustion doctrine for cases in which recourse to the administrative remedy would be futile or inadequate. We conclude that the plaintiffs claim of constructive discharge, as alleged in her substitute complaint, falls within that exception to the exhaustion doctrine.
We note first that in deciding the defendants' motion to dismiss, the trial court did not purport to resolve what
The plaintiff alleged that Thompson became the superintendent of schools for the East Haddam school district on January 2, 1991, and at all relevant times he acted as the agent of the board of education. The plaintiff also alleged that since January, 1969, she had been a teacher, as defined in General Statutes (Rev. to 1991) § 10-151 (a) (2),
The plaintiff alleged further that on various dates between January 4, 1991, and November 4, 1991, Thompson "engaged in a deliberate effort to harass and torment the plaintiff ... making her continued
"The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency's findings and conclusions. Connecticut Life & Health Ins. Guaranty Assn.
"Despite the important public policy considerations underlying the exhaustion requirement, we have grudgingly carved several exceptions from the exhaustion doctrine. Cahill v. Board of Education, 198 Conn. 229, 241, 502 A.2d 410 (1985). We have recognized such exceptions, however, only infrequently and only for narrowly defined purposes. LaCroix v. Board of Education, [supra, 199 Conn. 79]; see also Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 561,630 A.2d 1304 (1993). One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile or inadequate. O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 429, 655 A.2d 1121 (1995); Labbe v. Pension Commission, [229 Conn. 801, 814, 643 A.2d 1268 (1994)]." (Internal quotation marks omitted.) Hunt v. Prior, 236 Conn. 421, 432, 673 A.2d 514 (1996). "An administrative remedy is futile or inadequate if the agency is without the authority to grant the requested relief." Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 628, 577 A.2d 1017 (1990). This exception applies to the facts of the present case because the issues in controversy between the plaintiff and the defendants are not the issues contemplated by a termination hearing held pursuant to § 10-151 (d).
As the pleadings indicate, the plaintiff claims that, although in form she submitted a letter of resignation, in substance she was forced to submit that letter by
The reciprocal purposes of the provisions of § 10-151 (d); see footnote 2 of this opinion; are (1) to provide both a substantive and procedural framework within which a board of education may terminate a teacher's contract notwithstanding the teacher's tenured status, and (2) to protect the teacher's right to due process of law. See LaCroix v. Board of Education, supra, 199 Conn. 85-86. Under § 10-151 (d), there are six potential grounds for termination of the contract of a tenured teacher: (1) inefficiency or incompetence; (2) insubordination; (3) moral misconduct; (4) medical disability; (5) elimination of the teacher's position; and (6) "other due and sufficient cause." If termination of a teacher's contract is contemplated, the superintendent must first give the teacher written notice "that termination of such teacher's contract is under consideration...." General Statutes (Rev. to 1991) § 10-151 (d). If the teacher then makes a timely written request, the superintendent must give the teacher a timely "statement in writing of the reasons" for the proposed termination, which must fall within one or more of the six grounds for termination. General Statutes (Rev. to 1991) § 10-151 (d). The teacher may respond by making a timely request for a hearing before the board of education. General Statutes (Rev. to 1991) § 10-151 (d). The function of the hearing is, in general, to resolve the question of whether any of the asserted grounds for termination is supported
To require the plaintiff, under the facts of the present case, to invoke the provisions of § 10-151 (d) would be to attempt to force the proverbial square peg into a round hole. The dispute between the parties is not whether the plaintiff has engaged in any of the six potential grounds for termination. The defendants do not claim that she has. The dispute is whether she resigned voluntarily or was forced to do so by the wrongful conduct of Thompson. That kind of factual dispute simply does not fit within either the purpose or the language of § 10-151 (d). The board of education would not have been empowered, under § 10-151 (d), to determine whether a constructive discharge took place because that question is not one of the statutorily defined subjects of a hearing under the statute. Recourse to the administrative remedy of § 10-151 (d) would, therefore, be futile because the board of education would have been without the authority to grant the relief requested by the plaintiff. Cannata v. Dept. of Environmental Protection, supra, 215 Conn. 628.
This conclusion is buttressed by attempting to envision what would happen under the exhaustion scenario urged by the defendants. Under that scenario, although there had been no formal written notice of proposed termination as required by the statute, the defendants contend that such a notice was not necessary because the plaintiff, by her own allegations, already knew that she had been terminated. The defendants maintain that she then had the obligation to request a hearing before
The hearing, therefore, as framed by her request and Thompson's reply, would have been to resolve the question of whether Thompson had constructively discharged her or she had resigned. It would not have involved whether any of the six statutory grounds for termination had been proven. Thus, the hearing before the board of education would have borne neither substantive nor procedural resemblance to the kind of hearing contemplated by § 10-151 (d).
In this respect, the present case is analogous, as the plaintiff argues, to what we characterized in LaCroix v. Board of Education, supra, 199 Conn. 81, as the board of education's "total default" of its obligations under General Statutes (Rev. to 1972) § 10-151 (b), which in that case excused a teacher's failure to follow the administrative remedies under the statute. In the present case, assuming the plaintiffs allegations to be true, the defendants, by engaging in an intentionally harassing course of conduct that forced the plaintiff to submit her letter of resignation, also would have totally defaulted in their obligations under § 10-151 (d). That is because by doing so the defendants would have wholly
The same reasoning applies to the defendants' contention that the plaintiff also was required to exhaust the grievance and arbitration remedies provided by the agreement, because the agreement specifically links termination under the agreement to the provisions of the statute. Article one of the agreement provides that the board of education recognizes the East Haddam Administrators' Association "as the exclusive bargaining agent for those certified professional employees in the East Haddam School District who are employed in positions requiring an intermediate administrator or supervisory certificate, or the equivalent thereof, and who are not excluded" from the bargaining unit by certain statutory provisions. There is no dispute that the plaintiff was a member of the association and covered by the agreement. Article two, § 2.1.8 of the agreement provides that the board of education may "suspend or dismiss the administrators of the school in the manner provided by statute or ordinance...."
DEFAMATION AND INVASION OF PRIVACY BY FALSE LIGHT
The plaintiff claims that the trial court improperly dismissed her counts of defamation and invasion of privacy by false light, as alleged in her complaint, because one of the acts underlying those torts did not occur until after her employment by the board of education had terminated. Therefore, she argues, at that time she was no longer a member of the bargaining unit protected by the agreement, namely, administrative or supervisory employees of the school district, and could not have filed a grievance under the agreement. We agree.
In her defamation and invasion of privacy by false light counts, the plaintiff alleged that pursuant to General Statutes § 10-151c,
We agree with the plaintiff that at least to the extent that these counts rely on proof of improper dissemination of the written evaluation at a time when the plaintiff was no longer employed by the school district, she could no longer file a grievance based on that conduct by Thompson because she was no longer covered by the agreement.
They argue, instead, that the plaintiff has failed to exhaust her available contractual remedies insofar as she did not attempt to challenge the content of the written evaluation through the grievance procedure when, in 1991, Thompson wrote the evaluation. The
We note that despite this deposition testimony, the plaintiffs stated in their affidavits that written evaluations are not grievable matters. See footnote 7 of this opinion. It is not necessary for us to resolve this question, however.
First, in these two counts the plaintiff complains not only of what she characterizes as the false and misleading nature of the evaluation, but also of Thompson's improper dissemination of it. Second, at least one of those disseminations allegedly took place after her employment had terminated, removing her from the bargaining unit. In our view, the failure to file a grievance contesting the contents of an evaluation at its issuance does not destroy the right to challenge its unlawful dissemination after termination of employment. The doctrine of exhaustion of contractual remedies does not require such prescience. Therefore, even if we were to assume that the plaintiff could have contested the contents of her evaluation through the grievance procedure in 1991, her failure to do so does not deprive the trial court of jurisdiction over her defamation and invasion of privacy by false light claims.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The plaintiff asserts that the trial court improperly applied the doctrine of exhaustion of contractual remedies to her claim of intentional infliction of emotional
It is true that, as the defendants contend, most of the facts underlying this count are the same as those asserted in the wrongful constructive discharge count. Moreover, they are also the same facts that are alleged in the defamation count. In framing the count alleging intentional infliction of emotional distress, the plaintiff reasserted the essential allegations of both the wrongful constructive discharge count and the defamation count, and added the allegations that Thompson intended to inflict emotional distress on the plaintiff, or should have known that would be its likely result, and that his conduct was extreme and outrageous, causing the plaintiff severe emotional distress. It is also true that a "complaint sounding in tort will not in itself prevent [resort to contractual grievance procedures] if the underlying contract embraces the disputed matter...." (Internal quotation marks omitted.) School Administrators Assn. v. Dow, supra, 200 Conn. 383, quoting Legg, Mason & Co. v. Mackall & Coe, Inc., 351 F. Sup. 1367, 1370-71 (D.D.C. 1972).
It is not true, however, notwithstanding the defendants' contrary suggestion, that simply because the
In this case, article seven, § 7.2.1 of the agreement defines a "grievance" as "a complaint by an administrator or a group of administrators that there has been a violation, misinterpretation or misapplication of a specific provision or provisions of this contract to the detriment of the administrator or administrators concerned." We conclude that the plaintiffs claim that Thompson intentionally caused her emotional distress does not fall within that definition.
The defendants do not point to any "specific provision" of the agreement that would be violated, misinterpreted or misapplied by Thompson's alleged tortious conduct. Furthermore, our examination of the agreement does not disclose any such provision. The agreement covers, between the members of the bargaining unit and the board of education, what one would normally consider to be matters of compensation and conditions of employment,
LOSS OF PARENTAL CONSORTIUM
The minor plaintiffs contend that we should recognize a claim for loss of parental consortium by a minor child resulting from a serious injury to the child's parent. They argue, therefore, that the trial court, Gaffney, J., improperly struck counts thirteen, fifteen, sixteen and seventeen of the complaint, in which they had alleged such claims. We conclude, however, that the balance of reasons and public policies tips against the recognition of such a claim. We therefore decline to do so, and we affirm that part of the judgment of the trial court.
We have defined "consortium" in the spousal context "as encompassing the services of the [injured spouse], the financial support of the [injured spouse], and the variety of intangible relations which exist between spouses living together in marriage. Prosser, Torts (4th Ed. 1971) § 124, pp. 881-82. These intangible elements are generally described in terms of affection, society, companionship and sexual relations. Comment, `The Action for Loss of Consortium in New Mexico,' 2 N. Mex. L. Rev. 107,108 (1972). These intangibles have also been defined as the constellation of companionship,
The minor plaintiffs offer several arguments in favor of recognition of such a claim. First, they argue that the child who, through the defendant's tortious conduct, has been deprived of those aspects of the parent-child relationship, has suffered "a genuine injury, and a serious one." See R. Pound, supra, 14 Mich. L. Rev. 185 (A child "has an interest in the society and affection of the parent, at least while [the child] remains in the household. But the law has done little to secure these interests."). One of the amici curiae, the Connecticut Trial Lawyers Association (amicus), points out that we have recently reaffirmed that it is our state's public policy to promote the welfare of the family, and that the interest of children "in not being dislocated from the emotional attachments that derive from the intimacy of daily association, with the parent" has constitutional significance. (Internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 310, 709 A.2d 1089 (1998).
The minor plaintiffs also argue by analogy to our established recognition of a valid claim for loss of spousal consortium. See Hopson v. St. Mary's Hospital,
In addition, the minor plaintiffs argue by way of analogy to our decision in Clohessy v. Bachelor, 237 Conn. 31, 49, 675 A.2d 852 (1996), in which we recognized, for the first time and subject to certain limitations, that a parent and a sibling can recover damages for the emotional anguish they had sustained by witnessing the parent's other young child being fatally injured by the defendant's negligence. The minor plaintiffs assert: "Application of this court's logic in Clohessy to the question of whether a tortfeasor's liability should extend to ... loss of [parental] consortium properly instructs that the time is similarly ripe to recognize such cause of action in this state."
The minor plaintiffs argue further that permitting compensation for loss of parental consortium will enable the emotionally injured child to secure the therapy that will, in turn, help to heal the wounds caused by his or her loss. Thus, they contend, not only will the minor children benefit, "but society will also benefit if the child is able to function without emotional handicap. This may well offset any increase in insurance premiums."Berger v. Weber, 411 Mich. 1,15,303 N.W.2d 424 (1981).
The minor plaintiffs also point to what they characterize as "the emerging national trend recognizing such
Although we acknowledge that many of these contentions have considerable appeal, we conclude that on balance, the wiser judicial policy is not to recognize the claim for loss of consortium by a minor child. We note, as a preliminary matter, that the cause of action asserted is a form of third party liability of the defendants. That is, the minor plaintiffs seek to recover from the defendants, not for tortious harms that the defendants inflicted directly on them, but for emotional harms they suffered as a result of the defendants' tortious conduct committed against another with whom they have a close relationship, namely, their parent. Although we have never specifically said so, our cases suggest that the imposition of third party liability on a tortfeasor is an exception to the general rule of the scope of tort liability that requires satisfaction of a special policy inquiry.
Thus, we have held that, for reasons of public policy, a psychiatrist engaged to examine children for possible sexual abuse owed no duty of care to the children's father, who was the suspected abuser; Zamstein v. Marvasti, 240 Conn. 549, 559, 692 A.2d 781 (1997); a psychotherapist owed no duty of care to a third party injured by his psychiatric outpatient; Fraser v. United States, 236 Conn. 625, 632, 674 A.2d 811 (1996); a physician owed no duty of care to his patient's daughter, who suffered emotional distress from observing her mother's health deteriorate from the physician's substandard care; Maloney v. Conroy, 208 Conn. 392, 399, 545 A.2d 1059 (1988); and an attorney owed no duty of care to his client's intended beneficiaries for failing to arrange for timely execution of estate planning documents. Krawczyk v. Stingle, 208 Conn. 239, 244-46, 543 A.2d 733
On the other hand, very few decisions have extended a tortfeasor's liability to a third party, and those decisions have relied heavily upon policy considerations. The primary example, of course, is our recognition of the claim for loss of spousal consortium. Hopson v. St. Mary's Hospital, supra, 176 Conn. 496. In addition, we have also held that considerations of public policy justified extending a tortfeasor's liability to the emotional distress suffered by a bystander, where (1) the bystander was closely related to the injured victim, (2) the bystander's distress was caused by contemporaneous sensory perception of the event, (3) the victim was seriously injured, and (4) the bystander suffered serious emotional injury. Clohessy v. Bachelor, supra, 237 Conn. 52-54. Thus, it is fair to say that imposing third party
Our reluctance to recognize causes of action in tort based on third party liability, in the absence of satisfaction of a special policy inquiry, is based in part upon our realization that the scope of the tortfeasor's third party liability, measured only by "pure rules of foreseeability could lead to unlimited liability." Clohessy v. Bachelor, supra, 237 Conn. 50. That is because "[i]t is foreseeable that any injured person will be party to a number of relationships—with the members of his household (who may not form a traditional nuclear family), with relatives, with friends and neighbors, with employer, employees, or co-workers—and that the other party to the relationship will suffer losses, tangible and intangible, should the relationship be interrupted." Berger v. Weber, supra, 411 Mich. 29.
Moreover, where the primary victim of the tortious behavior recovers for her own injuries, those direct consequences of the wrongful conduct are compensated and the wrongdoer does not escape liability. Consequently, the fundamental policy purposes of the tort compensation system—compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct—are satisfied in large measure, and
Furthermore, as our cases reveal, imposing liability for consequential damages often creates significant risks of affecting conduct in ways that are undesirable as a matter of policy. Before imposing such liability, it is incumbent upon us to consider those risks. Thus, in Zamstein v. Marvasti, supra, 240 Conn. 560-61, our decision not to impose upon a psychiatrist a duty of care to a suspected child abuser was based largely on our recognition of "the impermissible risk of discouraging such professionals in the future from performing sexual abuse evaluations of children altogether...." Similarly, in Fraser v. United States, supra, 236 Conn. 634-35, our decision not to impose upon a psychotherapist a duty of care to a third party who was injured by the psychotherapist's outpatient was based partly on the risk of inhibiting the openness that is essential to the therapist-patient relationship and partly on the risk of over-encouraging involuntary hospitalization of the mentally ill.
Whether an additional policy consideration justifies, in any given case, the imposition of liability for consequential damages, such as those claimed by the minor plaintiffs, is determined through consideration of whether the tortfeasor owes a legal duty to the claimants. See Clohessy v. Bachelor, supra, 237 Conn. 46-47. "The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.... RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381,384,650 A.2d 153 (1994). We have stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general
We acknowledge that, as a general matter, it is foreseeable that causing serious injury to a parent may have deleterious effects on the parent's minor children. In a tort case involving a claim for consequential damages, however, "[a] simple conclusion that the harm to the plaintiff was foreseeable ... cannot by itself mandate a determination that a legal duty exists.... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.... While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree.... The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results.... RK Constructors, Inc. v. Fusco Corp., [supra, 231 Conn. 385-86]." (Internal quotation marks omitted.) Clohessy v. Bachelor, supra, 237 Conn. 45-46.
We conclude in the present case that the general rule of limiting the tortfeasor's liability to the person directly harmed should prevail. Although, in light of the minor plaintiffs' arguments, the question is a close one, the
First, if we were to recognize the claim as asserted by the minor plaintiffs—i.e., limited to loss of parental consortium suffered by minor plaintiffs resulting from serious injury to the parent—we would have to impose arbitrary limitations on the scope of the cause of action in order to avoid the creation of a practically unlimited class of potential plaintiffs. In the constellation of family relationships, there are other formally recognized relationships—e.g., siblings, grandparent and grandchild, and aunt or uncle and nephew or niece—and others, less formally recognized but nonetheless just as real in an emotional sense—e.g., stepsiblings, and stepchild and stepparent
It is true that we have, in at least one other circumstance, recognized a cause of action with arbitrary limits. In Clohessy, we required that the bystander seeking damages for emotional distress satisfy the following four conditions: (1) the bystander must be closely related to the victim; (2) the emotional injury must be the result of the contemporaneous sensory perception of the tortious event or conduct; (3) the victim's injury must be substantial, resulting in death or serious physical injury; and (4) the bystander's emotional injury must be serious. Clohessy v. Bachelor, supra, 237 Conn. 56. The fact that we have imposed arbitrary limits elsewhere, however, is not a persuasive argument for doing so in the present case.
Courts operating in the quintessential common-law context—that is, when they are asked to recognize a new common-law cause of action—function best, and command the most respect, when their decisions can be defended on grounds of reason and principle. Although courts are, like legislatures, often in the business of drawing lines, how we are expected to draw lines differs significantly from how the legislature is expected to draw lines. Whereas legislatures often must draw arbitrary lines, we are expected to draw lines based on reason and principle, and to rely on arbitrary limits only
Second, a sound analysis of whether, as a matter of public policy, this jurisdiction should recognize a new cause of action requires some consideration, not only of its benefits to those who will assert it, but its costs to those who will pay for it. It cannot be denied that recognition of this cause of action, although creating considerable value to the families of injured parents, "will impose an added economic burden upon society." Berger v. Weber, supra, 411 Mich. 38. Because "every serious injury to a parent would engender a claim for loss of consortium on behalf of each of his or her [minor] children, the expense of settling or litigating such claims would be sizable." (Internal quotation marks omitted.) Id., quoting Borer v. American Airlines, Inc., 19 Cal.3d 441, 447, 563 P.2d 858, 138 Cal.Rptr. 302 (1977). Unlike the claim for spousal consortium, which has a natural boundary of a single claim arising out of any tortious transaction, "the right here debated would entail adding as many companion claims as the injured parent had minor children, each such claim entitled to separate appraisal and award. The
In our view, the proposed offsetting value asserted by the minor plaintiffs—namely, that recovery will give the injured minor child the wherewithal to heal her wounds, thereby helping both her and society at large— is too conjectural, particularly when viewed against the more easily predicted economic cost of the claim, if recognized. Although such a personal and social benefit
Third, recognition of the claim would create a significant risk of double recovery. We do not doubt that under current law and practice, a parent would be entitled, as part of her own damages for loss of life's ordinary activities, to recover for her inability to care for her minor children. Indeed, in this case the plaintiff on her own behalf seeks compensation for having been deprived of the companionship of her children during the week. When a close relationship between two people is disrupted, it is difficult to differentiate between the loss suffered by each. Thus, to "permit a child to recover for loss of an injured parent's society and companionship while the parent is also compensated for injury to the relationship creates a substantial risk of double recovery because of the difficulty of distinguishing the respective losses of the parties." Id., 36.
It is true, as the minor plaintiffs argue, that we ordinarily leave such difficult questions of damages to the jury's ability to sort out the appropriate limits under proper instructions from the court. That willingness to countenance uncertainty in the calculation of damages for intangible losses is strongest in cases where the plaintiff is the primary victim of the tortious conduct, because it is there that the fundamental purposes of tort recovery—compensation, shifting or spreading of losses, and deterrence—must be vindicated. Where,
Fourth, the overwhelming weight of authority in the nation is against recognition of a cause of action for loss of parental consortium. Thus, we disagree with the minor plaintiffs that there is an "emerging national trend" in favor of such recognition. The following jurisdictions have declined to recognize the cause of action: DeLoach v. Companhia de Navegacao Lloyd Brasileiro, 782 F.2d 438 (3d Cir. 1986) (general maritime law); Pleasant v. Washington Sand & Gravel Co., 262 F.2d 471 (D.C. Cir. 1958); Green v. A.B. Hagglund & Soner, 634 F. Sup. 790 (D. Idaho 1986); Lewis v. Rowland, 287 Ark. 474, 701 S.W.2d 122 (1985); Borer v. American Airlines, Inc., supra, 19 Cal.3d 441; Lee v. Dept. of Health, 718 P.2d 221 (Colo. 1986); Zorzos v. Rosen, 467 So.2d 305 (Fla. 1985); W. J. Bremer Co. v. Graham, 169 Ga.App. 115, 312 S.E.2d 806 (1983), cert. denied, 252 Ga. 36, 312 S.E.2d 787 (1984); Halberg v. Young, 41 Haw. 634 (1957), implied overruling recognized by Marquardt v. United Airlines, Inc., 781 F. Sup. 1487 (D. Haw. 1992); Karagiannakos v. Gruber, 274 Ill.App.3d 155, 157, 653 N.E.2d 932, cert. denied, 164 Ill.2d 565, 660 N.E.2d 1271 (1995) (noting "[a] clear and consistent line of cases in the Illinois Appellate Court hold[ing] that a minor has no cause of action for loss of parental consortium when the parent survives"); Dearborn Fabricating & Engineering Corp., Inc. v. Wickham, 551 N.E.2d 1135 (Ind. 1990); Audubon-Exira Ready Mix, Inc. v. Illinois Central Gulf R. Co., 335 N.W.2d 148 (Iowa 1983) (denying common-law cause of action for
The fact that the minor plaintiffs have suffered a "genuine injury" is insufficient, at least in and of itself, to serve as a basis for imposing third party liability on the defendants. Such an injury is presumably present in all of the cases in which, for policy reasons, we have nonetheless declined to impose such liability. See, e.g., Zamstein v. Marvasti, supra, 240 Conn. 560-61 (plaintiff father of children harmed emotionally and in exercise of custodial rights as result of negligent evaluation by defendant psychiatrist); Fraser v. United States, supra, 236 Conn. 632-33 (plaintiff third party physically harmed by outpatient of negligent defendant psychiatrist); Moloney v. Conroy, supra, 208 Conn. 403 (plaintiff daughter emotionally harmed by witnessing results of defendant physicians' negligent treatment of mother); Krawczyk v. Stingle, supra, 208 Conn. 244-46 (plaintiff
Furthermore, although it may be appropriate, for purposes of determining the scope of tort liability, to assign some weight to the fact that the parent-child relationship is constitutionally protected, as the amicus suggests, the amount of that weight is limited. Not every constitutional right or relationship gives rise to tort liability for its violation. Compare, e.g., Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 627 A.2d 909 (1993) (no private cause of action based on violation of due process clause of state constitution, article first, § 8), with Binette v. Sabo, 244 Conn. 23, 710 A.2d 688 (1998) (private cause of action based on violation of search and seizure provisions of state constitution, article first, §§ 7 and 9). In addition, the fundamental purposes of tort liability; see Berger v. Weber, supra, 411 Mich. 36-37; are not ordinarily congruent with the purposes behind, or the appropriate analysis of, constitutional provisions.
Finally, although the analogy to Hopson has some appeal because the loss of spousal consortium bears some resemblance to the loss of parental consortium asserted in the present case, and because the parent-child relationship may well be as commanding of legal protection in many respects as the spousal relationship, there are also significant differences between the two. These differences arise out of the fact that the relationship between spouses is different in kind as well as source from the parent-child relationship. Marriage is a "unique human relationship"; Billington v. Billington, 220 Conn. 212, 221, 595 A.2d 1377 (1991); "the closest entity recognized by society"; Albert v. McGrath, 278 F.2d 16,
Moreover, when we decided Hopson, the judicial trend was in favor of a claim for spousal consortium. See Hopson v. St. Mary's Hospital, supra, 176 Conn. 494-95 (recognizing "the movement of the law in other jurisdictions where, since 1950, a growing majority of courts have come to recognize a right of action for loss of consortium in either spouse"). That is not, however, the case here.
In addition, in any given case there will be only one spousal consortium claim—even in a case in which the primary plaintiff may have married or remarried during the course of his injuries—because only the spouse at the time of the tort may sue for consortium. Gurliacci v. Mayer, supra, 218 Conn. 561-64. Indeed, the limitation to only one claim for loss of spousal consortium may be seen as resting partly on public policy reasons. See id., 564 n.28. By contrast, in any given case, there would be as many claims for loss of parental consortium as there are minor children. As we have noted, this contrast sets a natural boundary for the scope of the
The final weak link in the chain of analogy to Hopson is that a spouse can choose to bring or forego his derivative consortium claim and thereby subject himself or not to the necessary intrusion by the other side of the case into the details of the spousal relationship. By contrast, a minor child cannot make that choice; it would be made for him, ordinarily by the parent who brings the primary action. Furthermore, this intrusion is likely to be extensive.
We acknowledge that as in any case that involves the question of whether our public policy, as a matter of common law, should recognize a new cause of action, the ultimate decision comes down to a matter of judgment in balancing the competing interests involved. We conclude that the balance of interests lies in declining
The judgment is reversed in part and the case is remanded with direction to deny the defendants' motion to dismiss the substitute complaint of the plaintiffs and for further proceedings according to law on the substitute complaint; the judgment is affirmed with respect to the counts of the original complaint by the minor plaintiffs.
In this opinion CALLAHAN, C. J., and NORCOTT, KATZ, PALMER and MCDONALD, Js., concurred.
BERDON, J., with whom KATZ, J., joins, concurring in part and dissenting in part. I agree with and join in parts I, II and III of the majority opinion, but I disagree with part IV concerning the rejection of the claim for loss of consortium (sometimes referred to as the loss of society and companionship of a parent)
I predict that this court will soon look on the decision in this case as the 1979 Hopson
First, as an overview, the reasoning that led this court to adopt causes of action for spousal loss of consortium and bystander emotional distress has equal applicability to a cause of action for loss of parental consortium. In Hopson, this court concluded that "the effect of the Marri decision [denying the plaintiff husband's claim for loss of consortium] is to deny the existence of any harm where harm is most assuredly to be expected. It is a well-settled principle of law that a tortfeasor takes his victim as he finds him. Should the victim be married, it follows that the spouse may suffer personal and compensable, though not physical, injuries as a direct result of the defendant's negligence and that such injuries should not go uncompensated." (Emphasis added.) Hopson v. St. Mary's Hospital, supra, 176 Conn. 493. Likewise, because of the crucial role of the parent in a child's life, "[s]hould the victim be [a parent], it follows that the [child] may suffer personal and compensable, though not physical, injuries as a direct result of the defendant's negligence...." Id.; Villareal v. Dept. of Transportation, 160 Ariz. 474, 479, 774 P.2d 213 (1989) ("[F]oreseeability of harm to a victim's child is as equally foreseeable as harm to a victim's spouse. Because we have already recognized a cause of action for the victim's spouse, we reject this argument [which would deny compensation]...."); Hay v. Medical Center Hospital of Vermont, 145 Vt. 533, 539, 496 A.2d 939 (1985) ("we see little difference in terms of remoteness between the situation of a spouse seeking to recover for loss of consortium, and that of a minor child similarly seeking recovery for loss of consortium"); W.
Furthermore, the logical extension of Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996), would be to recognize the loss of parental consortium claim for a child. In Clohessy, we concluded that bystander emotional distress, the emotional anguish a person sustains by witnessing a parent or sibling being seriously injured as a result of an accident caused by the negligence of another, was compensable. Id., 46-47. Although the factual predicate in Clohessy was that of a mother witnessing a child fatally injured by a negligent driver, we adopted the rule affording a cause of action for bystander emotional distress for anyone "`closely related to the injury victim,'" including a child with respect to his or her parent. Id., 52. We reached this result after determining that the harm suffered by a close relative of an injured victim is "`as foreseeable as the injury itself, for few persons travel through life alone'"; id., 47; and that protection of the "personal emotional stability [of the injured victim's close relative] is worthy of legal protection against unreasonable conduct." (Internal quotation marks omitted.) Id., 46. Likewise, if the loss of spousal consortium and the emotional distress of a bystander are foreseeable, then logically, the severe emotional anguish a child will suffer as a result of the loss of his parent's consortium is just as foreseeable. Hoffman v. Dautel, 189 Kan. 165, 168, 368 P.2d 57 (1962) ("[i]t is common knowledge that a parent who suffers serious physical or mental injury is unable to give his minor children the parental care, training, love and companionship in the same degree as he might have but for the injury"). Moreover, as will be discussed herein, the child's interest in the parent's love, affection, care and guidance is just as
Despite the majority's concession that the specific harm alleged in loss of parental consortium actions is foreseeable, it rejects the cause of action on the basis of policy considerations. Upon review of the majority's arguments, it is clear that they, like the arguments rejected in Hopson for upholding the decision in Marri, are either without merit, without foundation or based upon exaggerated claims.
The majority first argues that the logic underlying our decision to adopt the cause of action for loss of spousal consortium in Hopson is not applicable to a parental consortium cause of action because the spousal relationship is different in source and kind from the parent-child relationship. According to the majority, the spousal relationship is different in kind from the parent-child relationship because it is a "`unique human relationship,' " and "`the closest entity recognized by society.' " I do not question this close bond between husband and wife, but I find the majority's distinction unpersuasive because the parent-child relationship is "the earliest and most hallowed of the ties that bind humanity...." (Internal quotation marks omitted.) Nulle v. Gillette-Campbell County Joint Powers Fire Board, 797 P.2d 1171, 1173 (Wyo. 1990). As a child gets older, of course, that relationship typically wanes, and, consequently, the damages to be awarded a child for loss of parental consortium decrease accordingly. Indeed, once a child has reached complete independence there generally would be no basis for a claim of loss of parental consortium.
The "parent-child relationship is ... the wellspring from which other family relationships derive...." Villareal v. Dept. of Transportation, supra, 160 Ariz. 478;
The majority argues that the spousal relationship is different in source from the parent-child relationship because it is based on notions of commitment, and because the protected rights of spouses that arise out of their marriage contract are similar to the elements of consortium. The public policy set forth by our statutes and case law demonstrate, however, that the parent-child relationship, like the spousal relationship, is based on the notion of commitment, and is the source of rights similar to the elements of spousal consortium—"the rights of the child to [the] support, aid, protection, affection and society of the parent...." Pence v. Fox, 248 Mont. 521, 526, 813 P.2d 429 (1991).
Moreover, decisions of the United States Supreme Court over the last thirty years reflect a growing awareness that the legal status of children has changed, like that of women, "from that of a chattel to that of a person entitled to legal redress for wrongs done to [the child]." Note, "The Child's Right to Sue for Loss of a Parent's Love, Care and Companionship Caused by Tortious Injury to the Parent," 56 B.U. L. Rev. 722, 742 (1976). For example, children are now recognized as
The majority asserts that this court should not adopt the loss of parental consortium cause of action because the weight of judicial authority is opposed to it. Contrary to the majority's assertion, there is an emerging national trend to recognize such claims by children. Before 1980, none of the jurisdictions accepted this claim;
The majority concludes that public policy does not support recognition of this cause of action because the costs of recognizing it—namely, (1) increased insurance premiums, (2) increased litigation expenses, and (3) double recovery of damages by the child—outweigh the benefits of recognizing it. I cannot accept these reasons because they are based on conjecture and irrelevant concerns.
The majority provides nothing more than conjecture to support its argument that adoption of a cause of
Moreover, the majority's concern over the "`significant increases in insurance premiums'" that allegedly will result if we adopt this cause of action is misplaced. Insurance practices must adapt themselves to the law, and not the law to insurance practices. Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543, 552, 652 P.2d 318 (1982) ("[a] person's liability in our law still remains the same whether or not he has liability insurance; properly, the provision and cost of such insurance varies with potential liability under the law, not the law with the cost of insurance"); Ueland v. Pengo Hydra-Pull Corp., 103 Wn.2d 131, 140, 691 P.2d 190 (1984) ("[w]hen considering the recognition of a new cause of action, the specter of increased insurance rates is one of our least concerns"). The need to compensate children for their loss—indeed to cover the expenses arising out of psychological injuries the child experiences because of a loss of the society and companionship of the parent—outweighs any increase in the costs of insurance.
I also disagree with the majority's concern over increased litigation expenses. Even "if recognition of this cause of action causes more injured parties to seek redress in the courts, this does not argue against such recognition. It is the duty of the courts to redress injuries, and it is expected that injured parties should look to the courts for assistance." Kizina v. Minier, Superior Court, judicial district of Waterbury, Docket No. 099375 (January 24, 1992) (5 Conn. L. Rptr. 481), citing Hay v. Medical Center Hospital of Vermont, supra, 145 Vt. 533. Because the action for loss of parental consortium is derivative, the claims of the children, as in the present case, would be joined in one action at trial. Thus, no additional burden would be placed on our trial courts and insignificant increases in litigation costs would occur. Even if the children's action were brought separately, they certainly would be joined for trial purposes. Hopson v. St. Mary's Hospital, supra, 176 Conn. 494. "Moreover, because a consortium action is derivative of the injured spouse's cause of action, the consortium claim would be barred when the suit brought by the injured spouse has been terminated by settlement or by an adverse judgment on the merits." Id.
The majority also argues that recognition of this cause of action would create a significant risk of double recovery by the child—that is, damages awarded the parent and child would overlap. This precise argument was addressed and rejected in Hopson. By trying the underlying parent tort cases with that of the child's
Furthermore, by making this argument, the majority assumes that juries cannot distinguish between a child's claim for emotional damages and a parent's claim for pecuniary damages relating to support for the child. This assumption is contrary to the general practice of asking jurors to make fine distinctions in damage awards. I am confident that jurors who presently are asked to distinguish between the claims for damages of each spouse in a loss of spousal consortium action can do the same in a loss of parental consortium action. See W. Prosser, supra, § 125, pp. 896-97 ("[t]he obstacles in the way of satisfactory limitation of recovery [that is, preventing the double compensation of the child] are no greater than in the case of the [spouse]").
Finally, this alleged problem "may be easily cured by limiting the injured parent's recovery to the child's loss of the parent's pecuniary ability to support the child" and limiting the child's cause of action to the economic and noneconomic damages that arise from "the loss of the parent's society and companionship." Theama v. Kenosha, supra, 117 Wis.2d 526; see, e.g., Hibpshman v. Prudhoe Bay Supply, Inc., supra, 734 P.2d 995-96; Villareal v. Dept. of Transportation, supra, 160 Ariz. 480; Williams v. Hook, supra, 804 P.2d 1136-37; Hay v. Medical Center Hospital of Vermont, supra, 145 Vt. 541; Belcher v. Goins, supra, 184 W.Va. 403.
Despite these obvious facts, and the majority's own admission that the recovery of damages will provide some children with "the wherewithal to heal [their] wounds, thereby helping [them] and society at large," the majority incredibly concludes that the benefits of allowing children to recover damages for their injuries are too uncertain to warrant adoption of this cause of action. Clearly, damages awarded a child "might enable the family to obtain live-in help that could provide not only domestic services, but, incidentally, a measure of guidance and companionship. The child who has suffered an emotional maladjustment as a result of his deprivation would have funds available to pay for
Even if the majority were correct that the adoption of this cause of action, as defined by the plaintiff, would place an economic burden on society, we can circumscribe the action to lessen its burden, as we did in Clohessy, and thereby prevent its costs from exceeding its benefits. "[C]ourts throughout the country have imposed various limitations on a loss of [parental] consortium claim that might be appropriate. Thus the action [can be] limited to the time of the child's minority. Shockley v. Prier, [66 Wis.2d 394, 401, 225 N.W.2d 495 (1975)]; the jury can be told to consider the actual relationship between child and parent to determine whether it was a loving one, id., also see Dymek v. Nyquist, [128 Ill.App.3d 859, 868, 469 N.E.2d 659 (1984)]; courts have also required that the child be severely incapacitated before the action is allowed. Reben v. Ely, [146 Ariz. 309, 314, 705 P.2d 1360 (1985)]; Yordon v. Savage, 279 So.2d 844,845 (Fla. 1973); Shockley v. Prier, supra ." Falconieri v. Choquette, Superior Court, judicial district of New Haven, Docket No. CV960383034S (September 26, 1996) (17 Conn. L. Rptr. 658, 660).
The majority concludes that there is no reasoned or principled justification for this court to adopt a cause of action that is "arbitrarily" limited, "[i]n the constellation of family relationships," to children and parents.
Finally, when determining whether our public policy should recognize a duty for loss of parental consortium, we must view the practical aspects of this injury. I posit this situation. Should not the drunken driver who causes serious injury to the parent of a child of tender
Because the recognition of the cause of action for loss of parental consortium: (1) is logically consistent with our prior holdings in Hopson v. St. Mary's Hospital, supra, 176 Conn. 485, and Clohessy v. Bachelor, supra, 237 Conn. 31; (2) is consistent with our legislature's and this court's acknowledgment that a child's interest in the love, affection, care and guidance of his or her parent must be protected; (3) would create important direct benefits for the child, and indirect benefits for society; and (4) would not require arbitrary limitations; this court should adopt it. Dean Pound recognized as early as 1916 that even though, "[a]s against the world at large a child has an interest ... in the society and affection of the parent ... the law has done little to secure these interests." R. Pound, "Individual Interests in the Domestic Relations," 14 Mich. L. Rev. 177, 185 (1916). Nevertheless, today, the majority concludes, for public policy reasons, that this court should not do anything to protect a child's interests in the most important relationship in our society—that of the parent and child.
Accordingly, I dissent.
Hereafter, unless otherwise indicated, all references in this opinion are to the 1991 revision of § 10-151 (d).
We note, however, that the minor plaintiffs purport to sue in their own names, rather than by way of claims on their behalf by a parent or next friend. Neither they nor the plaintiff seek to explain why they are not governed by the general rule that minor children may only sue by way of a parent or next friend. Cottrell v. Connecticut Bank & Trust Co., 175 Conn. 257, 264, 398 A.2d 307 (1978); Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970). Because this question was not raised in the trial court or this court, however, we decide the validity of their derivative claims on the basis on which it was litigated in the trial court and argued in this court. Petco Insulation Co. v. Crystal, 231 Conn. 315, 320 n.9, 649 A.2d 790 (1994); McLaughlin v. Bronson, 206 Conn. 267, 276, 537 A.2d 1004 (1988).
In addition, the defendants submitted excerpts from the plaintiffs deposition. In the excerpted portions of that deposition, the plaintiff testified that, in 1991, when Thompson had issued his written evaluation of her, the contractual grievance procedure was in place to challenge the evaluation but that, for various reasons, she had not invoked it.
In his affidavit, the plaintiffs husband asserted that, as a former field representative of the Connecticut Education Association, he was familiar with the requirements of the act. On the basis of that familiarity, he corroborated the plaintiffs assertions regarding the alleged deprivation of her rights under the act, and her assertion that an end of the year evaluation of an administrator is not grievable under the agreement.
Instead of the facts in the present case, assume these facts: As a result of another driver's negligent operation of his automobile, a mother is paralyzed and suffers severe brain injuries resulting in the impairment of her visual and speech functions. At the time of the accident, she has two children, ages two and six. The mother has an action based upon negligence against the driver; and the father has a cause of action against the driver for the loss of spousal consortium; Hopson v. St. Mary's Hospital, 176 Conn. 485, 496, 408 A.2d 260 (1979); but, according to the majority, the children would not. That is simply not logical. It would seem to me that the children in this scenario, who are deprived of their mother's care, guidance, love and affection, suffered serious foreseeable damages and the policy of our law should permit them to recover against the negligent driver.
Those states that have adopted a cause of action for parents for the loss of a child's consortium include the following in reverse chronological order. United States v. Dempsey, 635 So.2d 961 (Fla. 1994); Jameson v. Hawthorne, 635 A.2d 1167 (R.I. 1994); Enochs v. Brown, 872 S.W.2d 312 (Tex. App. 1994); Pino v. Gather, 633 So.2d 638 (La. App. 1993); Gallimore v. Children's Hospital Medical Center, supra, 67 Ohio St.3d 244; Gillispie v. Beta Construction Co., 842 P.2d 1272 (Alaska 1992); Masaki v. General Motors, 71 Haw. 1, 780 P.2d 566 (1989); Davis v. Elizabeth General Medical Center, 228 N.J.Super. 17, 548 A.2d 528 (1988); Jacobs v. Anderson Building Co., 430 N.W.2d 558 (N.D. 1988); Frank, M.C., P.C. v. Superior Court, 150 Ariz. 228, 722 P.2d 955 (1986); Shockley v. Prier, 66 Wis.2d 394, 225 N.W.2d 495 (1975); Hayward v. Yost, 72 Idaho 415, 242 P.2d 971 (1952); see also Mass. Ann. Laws ch. 231, § 85X (Law. Co-op. Sup. 1994); Wash. Rev. Code Ann. § 4.24.010 (West 1988). The courts in Illinois are divided: compare Barkei v. Delnor Hospital, 176 Ill.App.3d 681, 531 N.E.2d 413 (1988) (no cause of action) with Dymek v. Nyquist, 128 Ill.App.3d 859, 469 N.E.2d 659 (1984) (recognizing cause of action).
The following treatises criticize states for refusing to extend a tortfeasor's liability to children of accident victims: H. Clark, Domestic Relations (1968) § 10.6, p. 279 ("[i]f the argument for recognizing the wife's claim for loss of consortium is convincing, it should be equally so with respect to the child's claim"); W. Prosser, supra, § 125, p. 896 ("[i]t is not easy to understand and appreciate this reluctance to compensate the child who has been deprived of the care, companionship and education of his mother, or for that matter his father, through the defendant's negligence").
Other jurisdictions deny recovery for loss of parental consortium based on the misguided belief that damages are too uncertain and the child's injury is of a noncompensatory nature. See, e.g., Hoesing v. Sears, Roebuck & Co., 484 F. Sup. 478, 480 (D. Neb. 1980); Borer v. American Airlines, Inc., 19 Cal.3d 441, 449, 563 P.2d 858, 138 Cal.Rptr. 302 (1977). This argument lacks merit because juries in our state are able to assess the appropriate award in cases in which damages, such as recovery of pain and suffering, are just as intangible as those of the loss of a parent's consortium. Furthermore, even though money is "a poor substitute for the loss of a parent's society and companionship, it is the only workable way that our legal system has found to ease the party's tragic loss." Theama v. Kenosha, supra, 117 Wis.2d 523.