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Davis v. Elizabeth General Medical Center

Decided: July 22, 1988.

LORENZO DAVIS, AN INFANT BY HIS GUARDIAN AD LITEM ROSA LEE TERRY AND ROSA LEE TERRY, INDIVIDUALLY PLAINTIFFS,
v.
ELIZABETH GENERAL MEDICAL CENTER, EMIL PISERCHIA, M.D., AND OZZIE ALLEN, R.N., DEFENDANTS



Menza, J.s.c.

Menza

The question in this case is whether the parent of a severely and permanently disabled child should be permitted to assert a cause of action for the loss of her child's companionship and society during his minority.

Plaintiff, Lorenzo Davis, suffered severe permanent brain damage which rendered him incompetent as a result of medical negligence that occurred on August 9, 1984. He is now in a semi-comatose state. He cannot speak or otherwise communicate. He responds to noise, feel, voice and touch, and smiles when he is content. There is very little chance that he will ever again be normal. He will most likely require institutionalization, with constant care, for the rest of his life.

There is no need for this court to recite at great length the relationship between Lorenzo and his mother. Suffice it to say that it was a close and loving one.

A parent's per quod claim has its roots in the common law.

Since the father was, under the common rule, entitled to the services of his child, he was entitled to recover for a loss of services or earning capacity not only when the child was enticed away or seduced, but also when the child was tortiously injured. And since the father was obliged to provide medical attention to the child, he was likewise entitled to recover against the tort-feasor for the child's medical expenses. [ Prosser and Keeton, Law of Torts (5 ed. 1984), ยง 125 at 934]

N.J.S.A. 9:1-1 mirrors the common law:

The father and mother of a minor child are equally entitled to its services and earnings. . . .

The parents jointly may maintain an action for the loss of wages or services of their minor child when such loss is occasioned by an injury, wrongfully or negligently inflicted upon such child.

There are numerous New Jersey cases which permit a parent to recover for expenses incurred on behalf of a child and for the loss of a child's services and earnings. See, e.g., Mathias v. Luke, 37 N.J. Super. 241 (App.Div.1955). There is only one case, a Law Division case, which has specifically addressed the question of whether a parent is also entitled to recover damages for the loss of a child's companionship and society.

In Brennan v. Biber, 93 N.J. Super. 351 (Law Div.1966), the parent of three children, who were injured in an automobile accident, brought suit on behalf of her children seeking compensation for their injuries and for her loss of her children's society and companionship. The trial court instructed the jury that it could consider, as a part of the parent's per quod claim, the loss of society and companionship of the children. The jury awarded damages for the injuries sustained by one of the children. Nothing was awarded for the parent's per quod claim. The court denied a motion for a new ...


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