PARENT GETS GO-AHEAD FOR CLAIM INVOLVING CARETAKER SERVICES

May 18, 2004

Steven P. Garmisa
Hoey & Farina Attorney
garmisa@hoeyfarina.com
1-888-425-1212

Can a parent "recover the wages lost while caring for a child who was injured as a result of a defendant's negligence"?

"Surprisingly, there is little case law regarding this issue in Illinois," according to the Illinois Appellate Court.

Piecing together the sparse Illinois precedent on this issue, along with the most persuasive scholarship and authorities from other jurisdictions, the Appellate Court concluded that a parent "should be allowed to recover the reasonable value of caretaking services that would have been allowed if someone had been employed to take care of her child." Worley v. Barger, 2004 WL 692673 (5th Dist., March 31).

Here are some highlights of Justice James K. Donovan's opinion (with various omissions not noted in the quoted text).

"We are presented with the issue of whether a parent has a right to recover the wages lost while caring for a child who was injured as a result of a defendant's negligence. Surprisingly, there is little case law regarding this issue in Illinois. However, it is well-established that a parent is allowed to recover the child's loss of earnings and medical and caretaking expenses during the child's minority.

"The comment to No. 30.08 of the Illinois Pattern Jury Instructions provides as follows: 'In actions for damages arising out of an injury to an unemancipated minor, the loss of earnings [and] medical and caretaking expense during the child's minority are recoverable by the parents. The child, therefore, is limited to the loss of earnings [and] medical or caretaking expense he would have incurred after reaching his majority. The usual practice in Illinois, however, is to sue for all damages in the minor's action. This is accomplished by alleging an assignment or waiver or relinquishment by the parents of their right to recover these damages.' "

"In the case at bar," Donovan recounted, "the issue of plaintiff's lost wages was brought in a separate cause of action because the minor's cause of action had been settled and plaintiff's claim of lost wages had not been addressed in the minor's settlement documents.

"Historically, there is some support for plaintiff's position. In Seltzer v. Saxton, 71 Ill.App. 229 (1897), a father brought a negligence cause of action against a store owner. The father sought damages for the care he provided to his son after his son had been blinded in one eye as a result of the store owner's actions. According to the syllabus of the opinion, the father argued that, 'In a suit by a parent for loss of services, the parent may recover for time spent in caring for and nursing the child. Connell v. Putnam, 58 New Hampshire, 534.' Seltzer, 71 Ill.App. at 232.

"In affirming a jury verdict in the amount of $2,900 for the father, the court held: 'The plaintiff was entitled to recover a reasonable sum for actual loss sustained and to be sustained by reason of the defendant's act. This actual loss would be made up of expense and trouble in caring for the child and the deprivation of his services during minority.' Seltzer, 71 Ill.App. at 233.

"Similarly, in Baltimore & Ohio SW Railway Co. v. Keck, 89 Ill.App. 72 (1899), the court allowed a parent to recover for medical bills and for necessary care in nursing the boy until his recovery, because it was the parent's duty to care for his boy.
"More recently, in Doe v. Montessori School of Lake Forest, 287 Ill.App.3d 289 (1997), a private preschool student, by her father and next friend, and her parents, on their own behalf, sued the school and its employees. The plaintiffs sought damages for negligence, intentional torts, negligent or intentional infliction of emotional distress, fraudulent concealment and conspiracy to conceal in connection with alleged sexual contact committed against the student.

"The Circuit Court dismissed the cause of action. The plaintiffs argued that the trial court had erred when it found that the parents, John and Mary Doe, could not maintain an independent cause of action for the intentional infliction of emotional distress, civil conspiracy or fraudulent concealment because their claims derived from plaintiff Jane Doe's claims against defendants.

"In reversing the trial court, the Appellate Court determined that although parents do not have a primary cause of action against a defendant for injuries received by their child, 'it is universally recognized that parents may maintain an action in their own right for any impairment of parental rights caused by the injuries, particularly for any pecuniary losses suffered as a result of the injuries.'

"The court reasoned, '[T]he parent's right of action, although distinct from the child's right of action, is based upon and arises out of the negligence that causes the injury to the child.'

"Additionally, support for plaintiff's position can be found in the decisions of other states and in the Restatement (Second) of Torts.
"Section 703 of the Restatement (Second) of Torts, entitled 'Action by Parent for Harm Caused by Tort Against Minor Child,' states: 'One who by reason of his tortious conduct is liable to a minor child for illness or other bodily harm is subject to liability to ... (b) the parent who is under a legal duty to furnish medical treatment for any expenses reasonably incurred or likely to be incurred for the treatment during the child's minority.'

" 'Medical expenses may include reasonable value of services of parent who misses work to care for the child.' Restatement (Second) of Torts, section 703, comment g, at 545 (1981); see also Lester v. Dunn, 475 F.2d 983 (D.C. Cir. 1973) (a parent is allowed to recover the reasonable expenses of procuring medical treatment and care for a child); Schurk v. Christensen, 80 Wash.2d 652, 497 P.2d 937 (1972) (parents were allowed to recover lost wages for caring for their child, who had been sexually molested by defendant); Mancino v. Webb, 274 A.2d 711 (Del. Super. 1971) (expenses incurred to be with an injured child are recoverable).
"In Mancino v. Webb," Donovan continued, "the issue was whether parents' expenses for travel, lodging, telephone calls and lost wages, incurred in order for the parents to be with an injured minor, were recoverable in the minor's action for damages for the injuries.
"The Mancino court, relying on Woodman v. Peck, 90 N.H. 292, 7 A.2d 251 (1939), found that these expenses, which had been incurred to be with or to establish contact with an injured child in order to comfort or cheer the child to recovery, may be, in a proper case, reasonably incurred and thus recoverable elements of damages.

"Conversely, lost wages would not be so reasonably incurred and thus were not proper elements of damage. See 22 Am.Jur.2d Damages, section 81 (2003). However, 'the measure of recovery for care furnished an injured child by the parent after the child departs the hospital is not the wages lost by the parent, but rather the reasonable value of the care or attendance rendered.' Mancino, 274 A.2d at 713; see also 59 Am.Jur.2d Parent and Child, section 80 (2002).

"In Lester v. Dunn, the federal court applied the law of Maryland, the place where the tort had occurred, and observed as follows: 'The Supreme Court of Maryland decided long ago that when a minor is injured, his mother is entitled to recover for the care and labor of nursing him. See County Commissioners of Harford County v. Hamilton, 60 Md. 340 (1883). This is consistent with the generally accepted view. Where a child is injured, the parent may recover "the reasonable expenses of procuring medical treatment and care," and where the parent provides that care him-or herself, "[t]he value of the parent's own services, as nurse or otherwise, is recoverable...." C. McCormick, Law of Damages, 328-329, n. 6 (1935), and cases there cited. Where "circumstances render it necessary or advisable for the parent to quit work to attend the child, rather than employ another to attend him, it would seem that the parent should recover the loss of wages." Lester, 475 F.2d at 985-86.' "

However, in the new Illinois case, Donovan noted:

"Defendant argues that we must place reasonable restrictions on the scope of tort liability and not extend it inappropriately. Defendant appropriately cautions this court with the language from the Illinois Supreme Court in Cockrum v. Baumgartner, 95 Ill.2d 193 (1983), wherein it is stated: 'Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree.' Cockrum, 95 Ill.2d at 203 (quoting Tobin v. Grossman, 24 N.Y.2d 609 (1969))."

With this cautionary note, Donovan and his colleagues decided that it is "reasonably foreseeable that an injury to a minor child would result in his or her parents expending time in caring for the child and that there is a sufficient likelihood of the parent suffering pecuniary injury.

"The magnitude of guarding against the injury is no greater than that of guarding against the injury to the child. The consequence of placing the burden on the defendant to pay the reasonable value of the services rendered to the minor child by the parent is no greater than if the expense had been incurred in employing a third person to deliver the service.

"We decline plaintiff's request for lost wages because it would insert a level of unforeseeability that is not necessary in order for plaintiff to receive a reasonable recovery for the care of the minor child.

"In summary, we find that plaintiff should be allowed to recover the reasonable value of caretaking services that would have been allowed if someone had been employed to take care of her child, as permitted by Illinois Pattern Instruction No. 30.09, which is entitled 'Measure of Damages, Caretaking Expense -- Past and Future -- Adult Plaintiff, Emancipated Minor, or Minor Whose Parent Has Assigned Claim to Minor' and states, 'The reasonable expense of necessary help which has been required as a result of his injury [and the present cash value of such expense reasonably certain to be required in the future].' "

Back to Trial Notebook Main page