Pierce v. Casas Adobes Baptist Church

OPINION

HOWARD, Presiding Judge.

The sole issue raised in this appeal is whether the trial court properly denied a motion for additur, reconsideration and/or new trial on the issue of loss of consortium.

James Anthony Pierce (Tony) was severely injured on June 15, 1984, in a motor vehicle accident while on a church-sponsored outing. At the time he was 17 years of age. He suffered a ruptured spleen, ruptured liver, a concussion, bruised heart and lungs and his back was broken in two places. After four days in the Gila General Hospital to stablize his internal injuries, he was evacuated by air to Tucson Medical Center where he remained hospitalized for another 24 days.

He was taken home by his parents on July 12, 1984, after being fitted with a fiberglass torso cast to support the weight of his upper body and receiving physical therapy to relearn to walk. When he was released from the hospital, he suffered from severe physical problems. He could not feed, bathe, dress or clean himself and required extensive care from his parents. Tony’s mother, a bank teller, took a leave of absence to care for him.

At present, he suffers from bladder incontinence and must catheterize himself four times a day. He still occasionally urinates on himself without realizing it. He also suffers from bowel incontinency. He has numbness in the area of his anus and diminished sensation in his penis. These conditions are permanent and may worsen. He has already been hospitalized once for complications with bladder infections. He cannot stoop, squat, bend, sit or stand for extended periods without discomfort. His spine has been fused from T8 through L5 by means of two 20-inch steel rods inserted and attached in his back parallel to his spine. He has flat back syndrome, meaning he walks with a rigidly straight back with his hips pushed forward resulting in permanent pain and discomfort. The steel rods are permanently in place.

Tony and his parents brought suit against the church and the driver of the vehicle. Liability was admitted and the issue of damages was tried to the court. The court awarded Tony $1,320,742. This sum included $265,000 for loss of earning capacity, $155,742 for future medical expenses and $900,000 in damages. The court awarded his parents $42,638.51 for medical expenses and $25,000 for lost wages and expenses in caring for Tony until he recovered. The court denied the parents’ claim for loss of consortium. Appellants contend that the trial court erred in this regard. We do not agree and affirm.

Appellants rely on two Arizona cases in support of their argument, Frank v. Superior Court, 150 Ariz. 228, 722 P.2d 955 (1986), and Reben v. Ely, 146 Ariz. 309, 705 P.2d 1360 (App.1985). In Reben, a 10-year-old was mistakenly administered liquid cocaine instead of liquid Tylenol, suffering severe and permanent brain damage as a result. In Frank, an emancipated child suffered severe brain damage as a result of negligently administered anesthesia during surgery.

In Reben, this court reviewed the development of loss of consortium as a cause of action. We looked at our wrongful death statute under which our courts have permitted recovery for loss of consortium on the death of a child, Southern Pacific Co. v. Barnes, 3 Ariz.App. 483, 415 P.2d 579 (1966), and concluded:

“We are convinced that there is an equal ground for finding an injury in the instant case, where the damage to the child is so great as to likewise deprive the parents of the companionship, comfort, love, and society to be reasonably expected from the child during his minority____ The uncontroverted facts show that at the time of trial Frank had the mental age of a three-year-old, yet was less able to communicate or respond than a three-year-old. We are unable to justify denial of an award in such circumstances when only the bare fact of the child’s existence distinguishes this from a wrongful death case.” 146 Ariz. at 312, 705 P.2d at 1363.

We permitted recovery by the parents for loss of consortium of the minor child, but limited our holding to the facts of that case. In Frank v. Superior Court, supra, our supreme court held that the age of the child is immaterial, stating:

“[W]e can find no reason for limiting the class of plaintiffs to parents of minor children when the parents of adult children may suffer equal or greater harm. Why should the parents of an injured seventeen-year-old be allowed to recover for loss of consortium, but not the parents of an injured eighteen-year-old? We can divine no adequate answer based on law or logic____” 150 Ariz. at 234, 722 P.2d at 961.

The court also reviewed Arizona case law and recognized “that the award of consortium damages is a well-established remedy in Arizona for negligent injury to family relations.” Id. at 230, 722 P.2d at 957. In Arizona, therefore, parents can recover damages for loss of their child’s consortium because of serious injury regardless of the age of the child.

In this case, the record shows that the parents have not lost the love, affection or companionship of their son as a result of the injuries, and also shows that Tony completed high school after the accident, is not confined to a wheel chair or bed, and is capable of obtaining gainful employment. Nevertheless, the parents contend that they are entitled to recover for loss of consortium because of the emotional effect upon them in seeing Tony’s injuries and their effect on Tony, and in seeing a happy, healthy, active 17-year-old son become disabled, incontinent, depressed and facing a future dramatically different than the one they had hoped and reasonably expected for him. In essence, what the parents are seeking to recover is damages for their own pain, suffering and mental anguish, and not for loss of consortium.

The parents contend that the Frank case supports their claim. They base this conclusion on language in the Frank case quoted from a law review note that “[t]he true significance of a parent’s action under modem practice is that it compensates the parents’ emotional losses when their child is injured.” 150 Ariz. at 232, 722 P.2d at 957, quoting, 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, 731-732 (1976). (Emphasis added.) We do not agree with the parents’ conclusion. The note is referring to “emotional losses” from the deprivation of their child’s society, companionship, love and support and not the parents’ emotional distress caused by observing their child’s injuries. In Arizona, an action for mental distress for negligent injuries to another is limited to the witnesses of an accident. See Keck v. Jackson, 122 Ariz. 117, 593 P.2d 671 (1978).

Frank makes clear what damages are recoverable:

“In conclusion, we believe parents should have a remedy in damages against a negligent tortfeasor whose actions have so severely injured the parents’ adult child that they are deprived of their child’s society, companionship, love and support — in short, of the child’s consor-tium____” 150 Ariz. at 234, 722 P.2d at 759.

There was no such deprivation here.

Affirmed.

LACAGNINA, C.J., concurs.