Before Judges King, Lefelt and Lintner.
The opinion of the court was delivered by: Lintner, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court, Law Division, Somerset County.
This appeal arises from a legal malpractice claim alleging that Jeffrey Curzi (defendant) failed to pursue a novel cause of action for per quod damages on behalf of his client, Jeanette M. Tynan (plaintiff). We are required to decide whether a parent can maintain an action for per quod damages, including loss of society and companionship, as a result of injuries sustained by her child after the child has reached the age of majority. We decline to extend the common law which limits parents' per quod damages for loss of services, earnings and medical expenditures resulting from injuries to a minor child.
On April 7, 1998, plaintiff filed a six-count second amended complaint, naming several attorneys and law firms as defendants. The first five counts of the complaint, which do not relate to this appeal, alleged several incidents of professional malpractice against the various defendants arising out of activities concerning plaintiff's matrimonial action against her former husband. The sixth count was limited to allegations of professional negligence against defendant for his failure to seek per quod damages in favor of plaintiff in a personal injury law suit, filed by him on behalf of plaintiff's daughter, then age nineteen.
Both parties moved for summary judgment on the sixth count of the complaint. In a letter opinion dated January 3, 2000, the motion judge denied plaintiff's motion and granted defendant's cross-motion for summary judgment, dismissing the sixth count of the complaint. On January 18, 2000, plaintiff sought leave to appeal the motion judge's grant of partial summary judgment in favor of defendant dismissing the sixth count of her complaint. We granted plaintiff's motion on February 10, 2000. Subsequent to our grant of leave to appeal and prior to oral argument, the motion judge, in a letter opinion dated March 22, 2000, granted summary judgment in favor of all defendants dismissing the remaining counts of the complaint. As a result, this interlocutory appeal is now an appeal from a final judgment.
On October 3, 1990, plaintiff's daughter, Amy Varecha (Amy), age nineteen, was severely injured in an automobile accident. She suffered a closed head injury with multiple fractures of the facial bones, left ankle, left tibia, collarbone, and ribs. She was unconscious and remained in a coma for thirty-one days. Prior to the accident, Amy was a second-year college student living at home. It is undisputed that, as a result of the accident, Amy is legally blind and suffers continuing cognitive deficiencies that have rendered her unable to care for herself. Amy has been adjudicated incompetent and plaintiff is her appointed legal guardian.
At oral argument, though neither briefed nor raised before the motion judge, plaintiff's counsel asserted that plaintiff also should be compensated for her emotional distress as well as the services she now must provide her daughter. Plaintiff further contends that the motion judge erred, that her malpractice case was viable because the status of the law confers the right to seek per quod damages for lost services, earnings, society and companionship, resulting from Amy's injuries, notwithstanding her age, as she was not emancipated at the time of the accident. We disagree.
A father's right to recover for loss of services or earning capacity as a result of tortious injury to a child is firmly rooted in common law. W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 125 at 934 (5th ed. 1984); see also Timothy D. Ament, Parents' Loss of Consortium Claims for Adult Children in Iowa: The Magical Age of Eighteen, 41 Drake L. Rev. 247, 252 (1992). Because a father was entitled to the services of his minor child, the common-law claim was limited to the loss of services or earning capacity and medical expenses. Keeton, supra, § 125 at 934. The right was given only to the father, unless the child was either illegitimate or the mother had become entitled to the child's services as a result of court order or death. Id. at 935. A parent could not recover for loss of services or medical expenses incurred after the child reached majority. Ibid.; see also Murray v. Cohen, 4 N.J. Misc. 139, 143 (Sup. Ct. 1926); Young v. Sterling Leather Works, 91 N.J.L. 289, 295 (E. & A. 1917).
Recognizing the common law limited to the father the right to collect services and earnings of a minor child, the Legislature in 1953 enacted N.J.S.A. 9:1-1, entitled "Equal rights of parents to services and earnings of minor child; action for injuries to child," to eliminate the gender-based distinction and grant equal rights to a mother. In Mathias v. Luke, defendant claimed an excessive verdict in favor of the parents of a boy, age seven, resulting from injuries sustained when he was crossing the street. 37 N.J. Super. 241, 244-45 (App. Div. 1955). In remanding the $5,000 damage award in favor of the boy's parents to permit the parents the opportunity to prove specific prospective pecuniary loss, we observed, given the status of the law, "that there was every prospect that this lad would be of materially less use and service to his parents until majority or emancipation as a result of his disability . . . ." Id. at 247.
In reaching her conclusion, here, the motion judge relied on Bandel v. Friedrich, 122 N.J. 235, 241 (1991), for the proposition that a claim for inability to care for oneself belongs to the disabled adult plaintiff and not to the parent for gratuitous services rendered. In Bandel, plaintiff, an adult, brought a malpractice action for a delayed diagnosis which resulted in post-operative complications that rendered plaintiff permanently disabled to the extent he required twenty-four hour care. Id. at 238. During the three plus years preceding trial, plaintiff's mother, Bessie Bandel, cared for him almost exclusively, receiving no compensation for her services. Ibid. The trial judge refused to instruct the jury that the reasonable value of the gratuitous services provided by plaintiff mother and required for his care were an element of damages recoverable by the mother. Id. at 238-39. In arriving at its conclusion that the collateral source rule did not prevent plaintiff from seeking damages equal to the reasonable value of the services gratuitously provided by his mother, the Supreme Court pointed out "we determine that the lost ability to care for oneself due to tortiously inflicted injury is an appropriate element of compensatory damages recoverable by an injured plaintiff from the responsible tortfeasor." Id. at 241. While the Supreme Court confirmed that the claim for inability to care for oneself belongs to the injured party, it was not faced with the issue before us: whether a parent can recover for lost consortium of an adult child.
Three published Law Division decisions have dealt with the question of parents' entitlement to per quod damages for injuries sustained by their children. In Brennan v. Biber, Judge Kole refused to expand recovery by a parent to include loss of a child's society and companionship, in addition to loss of earnings and services, there being "no authority in this State for allowing such recovery." 93 N.J. Super. 351, 369 (Law Div. 1966), aff'd, 99 N.J. Super. 247 (App. Div. 1968). A contrary result was reached in Davis v. Elizabeth Gen. Med. Ctr., by Judge Menza who observed that, based upon statutory enactment or analogy with a spouse's claim for consortium, the trend appears to allow a per quod claim for companionship and society in cases where a minor child has been seriously injured. 228 N.J. Super. 17, 20-21 (Law Div. 1988). He concluded that such a claim was fair and reasonable and that there was no statutory provisions nor New Jersey precedent precluding such a claim. Id. at 23.
Recently in Mealey v. Marella, Judge Almeida found, under the circumstances of the case before him, that parents could maintain a claim for loss of companionship and society as a result of injuries sustained by their son, even though at the time of the accident he had reached his majority. 328 N.J. Super. 129, 137 (Law Div. 1999). William Mealey III was a passenger in an automobile which left the roadway rendering him a quadriplegic. Id. at 131-32. At the time of the accident, Mealey was age eighteen and a high school student living at home. Before the accident, Mealey regularly assisted with household chores including caring for his grandparents and baby-sitting his brother's children. Id. at 132. He often went camping with his family, went fishing, and attended sporting events with his father. Ibid. While acknowledging that "New Jersey presently recognizes that cause of action in cases involving injury to a minor child," and that "the theory does ...