Parent, Child and Spouse - The Loss of Consortium Claim in Massachusetts - Part 2 Parent and Child
After the Diaz decision, spouses could sue for loss of the other's consortium, but what of other family members? Massachusetts decided in Ferriter vs. Daniel O'Connell & Sons, that a minor child could sue for loss of consortium where his or her parent was injured by a wrong-doer.
This right of a child to sue for loss of consortium was extended to "one who is not a minor but who is a handicapped person who resides in the household of his wrongfully injured ... [parent] ... and who is dependent upon her physically, emotionally, and financially." Morgan vs. Lalumiere
Once the right of a child whether a minor or disabled to recover for loss of the parent's consortium was decided, the issue of the parent's rights where a child was injured was addressed in Norman vs. MBTA. The Norman case decided that a parent did not have the right to recover damages for loss of consortium where a child was injured. The logic of this decision was: "Although parents customarily enjoy the consortium of their children, in the ordinary course of events a parent does not depend on a child's companionship, love, support, guidance, and nurture in the same way and to the same degree that a husband depends on his wife, a wife depends on her husband, or a minor or disabled adult child depends on his or her parent."
This rule failed to take into account society's interest in protecting the integrity of families particularly in the case of injury-producing wrongdoing. As a result, the Massachusetts legislature enacted a statute effectively over-ruling the Norman decision. General Laws, c. 231, §85X, enacted in 1989, provides: "The parents of a minor child or an adult child who is dependent on his parents for support shall have a cause of action for loss of consortium of the child who has been seriously injured against any person who is legally responsible for causing such injury." The Massachusetts Supreme Judicial Court recognized the legislature's strong purpose in over-turning the Norman decision by finding that the retroactive application of this statute was constitutional in Leibovich vs. Antonellis.
SUGARMAN lawyers have played a pivotal role in the development of the rights of family members to recover damages for loss of consortium, having represented the plaintiffs in both the Diaz and Leibovich cases as well as advocating for the legislation over-turning Norman. If you have a family member seriously injured by negligence and wish to speak with one of our attorneys, please fill out a Contact Form, call us at (617) 542-1000 or e-mail [email protected].