Loss of Affection and Companionship Damage In a Wrongful Death Action
In a wrongful death action in which the decedent was a minor child, the surviving parent, or parents, may recover for loss of affection and companionship that would have been derived from such child during its minority, in addition to all other elements of the damage usually recoverable in a wrongful death action.
In contrast to the holdings in Arizona and other states, the Supreme Court of Wisconsin noted that a minor is one whose relationship is most likely to be severely affected by a negligent injury to a parent. Theama v. City of Kenosha, 117 Wis. 2d 508, 344 N.W.2d 513 (1984):
Furthermore, while an adult is capable of seeking out new relationships in an attempt to fill in the void of his or her loss, a child may be virtually helpless in seeking out a new adult companion.
Therefore, compensation through the courts may be the child's only method of reducing his or her deprivation of the parent's society and companionship. See, 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).Id. at 516, 344 N.W.2d at 516.
However, contrary to the reasoning of the appellants and the reasoning of the Arizona Supreme Court in Frank v. Superior Court, there is a legitimate basis for limiting recovery for loss of parental consortium to minor or unemancipated children.
See also Belcher v. Goins, 184 W. Va. 395, 400 S.E.2d 830 (1990), in which West Virginia recognized that a minor or dependent child may have a claim for loss of parental consortium in a non-fatal injury case, but declined to extend the claim to a non-dependent adult child;
Mendillo v. Board of Education of the Town of East Haddam, 246 Conn. 456, 717 A.2d 1177 (1998), Pence v. Fox, 248 Mont. 521, 813 P.2d 429 (Mont. 1991), Nulle v. Gillette-Campbell County Joint Powers Fire Board, 797 P.2d 1171 (Wyo. 1990);
Hibpshman v. Prudhoe Bay Supply, Inc., 734 P.2d 991 (Alaska 1987);
Hay v. Medical Center Hospital of Vermont, 145 Vt. 533, 496 A.2d 939 (1985), which each limited common law loss of parental consortium claim to minors;
Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980), holding that "children have a viable claim for loss of parental society if they can show that they are minors dependent on the parent . . . . This dependence must be rooted not only in economic requirements, but also in filial needs for closeness, guidance, and nurture." Id. at 516, 413 N.E.2d at 696.