Indiana Law Review The Pecuniary Loss Rule as an Inappropriate Measure of Damages in Child Death Cases I. Introduction Indiana courts have traditionally held that the amount of compen- sation recoverable by parents for the wrongful death of a child is limited to pecuniary loss J At one time, this rule, known as the pecuniary loss rule, was followed in nearly all jurisdictions.^ Today, however, most jursidictions have abandoned this rule because of its archaic, outmoded underpinnings in favor of a rule which recognizes the true loss to parents as the lack of the child's society, companionship, and affection.^ While always stating that the pecuniary loss rule applied, Indiana courts have expanded the definition of "pecuniary loss" in order to miti- gate the harshness of the rule/ In its 1984 decision in Miller v. Mayberry,^ the Indiana Court of Appeals, Second District, called a halt to the expansion that had taken place over the years. The evolution of the rule in Indiana until Mayberry had followed an almost universal trend of allowing greater recovery by dispensing with a strict pecuniary loss requirement.^ It is time for Indiana to reevaluate the rule and its viability in our society, especially in Hght of the unfortunate reaffirmation of the rule in Mayberry. This Note will examine the evolution of the pecuniary loss rule in Indiana. Further, it will demonstrate the trend in other jurisdictions in this area and discuss the measure for recovery in analogous tort situations, such as recovery for loss of parental society, recovery for loss of spousal consortium, and recovery for the loss of an unborn fetus. Finally, it 'See, e.g., Thompson v. Town of Fort Branch, 204 Ind. 152, 178 N.E. 440 (1931); Miller v. Mayberry, 462 N.E.2d 1316 (Ind. Ct. App. 1984), transfer denied, Sept. 13, 1984; Boland v. Greer, 409 N.E.2d 1116 (Ind. Ct. App. 1980), transfer denied, July 13, 1981; Childs v. Rayburn, 169 Ind. App. 147, 346 N.E.2d 655 (1976) (en banc), transfer^ denied, Feb. 29, 1972; Wallace v. Woods, 149 Ind. App. 257, 271 N.E.2d 487 (19>I); Hahn v. Moore, 127 Ind. App. 149, 133 N.E.2d 900 (1956) (en banc), transfer denied, Dec. 21, 1956; Siebeking v. Ford, 125 Ind. App. 365, 122 N.E.2d 880 (1954).(^'n banc), transfer denied. Mar. 21, 1955; Southern Ind. Ry. Co. v. Moore, 34 Ind. App. 154, 72 N.E. 479 (1904); City of Elwood v. Addison, 26 Ind. App. 28, 59 N.E. 47 (1901). ^See, e.g., Bolinger v. St. Paul & D.R. Co., 36 Minn. 418, 31 N.W. 856 (1887); City of Galveston v. Barbour, 62 Tex. 172 (1884). ^See infra note 83 and accompanying text. 'See Childs v. Rayburn, 169 Ind. App. 147, 156-57, 346 N.E.2d 655, 662 (1976), transfer denied, Nov. 4, 1976; Wallace v. Woods, 149 Ind. App. 257, 267-68, 271 N.E.2d 487, 493 (1971) (en banc), transfer denied, Feb. 29, 1972; Hahn v. Moore, 127 Ind. App. 149, 158, 133 N.E.2d 900, 904 (1956)(en banc), transfer denied, Dec. 21, 1956. H62 N.E.2d 1316 (Ind. Ct. App. 1984), transfer denied, Sept. 13, 1984. ^See infra note 83 and accompanying text. 731 732 INDIANA LAW REVIEW [Vol. 18:731 will conclude that the pecuniary loss rule is outmoded, does not address the true loss to parents, and, therefore, should be abolished. II. Evolution of the Pecuniary Loss Rule in Indiana The pecuniary loss rule developed at a time when child labor was extremely common, and the death of a child was a genuine financial loss to the parents.^ The expectations of parents for financial contri- butions by their children were so widespread and acceptable that the law implied a pecuniary loss to parents for which compensation could be awarded.^ Because of the common practice of child labor and the parents' financial expectations, measuring loss to the parents in pecuniary terms was a logical way to redress their injury for the loss of a child. Thus, the early Indiana cases followed a very strict appHcation of the pecuniary loss rule.^ In City of Elwood v. Addison,^^ "pecuniary loss" was defined as "the value of a child's services from the time of the death until he would have attained his majority taken in connection with his prospects in life, less the cost of his support and maintenance during that period, including such as board, clothing, schooHng and medical attention."" Recovery for pecuniary loss must therefore be offset against any moneys that would have been expended for the upbringing of the child but for the wrongful death of the child. Indiana embraced the pecuniary loss rule in 1859 in Ohio & Mis- sissippi Railroad Co. v. Tindall.^^ The Indiana Supreme Court more recently reaffirmed its adherence to the rule in 1931 when it decided Thompson v. Town of Fort Branch.^^ In Thompson, the father of a seventeen-year-old boy sought to recover for lost services and funeral expenses."* The jury returned a verdict for the father, but awarded him only one dollar in damages.'^ The court maintained that the injury to the father was an injury to a property right, and not to the father's person. '^ The court also recognized that a strict application of the pecuniary loss rule did not allow a jury to consider loss of comfort or society, or any physical or mental suffering sustained by the parent, as ^See Comment, Damages for the Wrongful Death of Children, 22 U. Cm. L. Rev. 538 (1955) for a general discussion of the early roots of the pecuniary loss rule and its relation to child labor. «City of Elwood v. Addison, 26 Ind. App. 28, 35, 59 N.E. 47, 49 (1901). "See, e.g., Cleveland, C.C. & St. L. Ry. Co. v. Miles, 162 Ind. 646, 70 N.E. 985 (1904); Louisville, N.A. & C. Ry. Co. v. Wright, 134 Ind. 509, 34 N.E. 314 (1893); Pennsylvania Co. v. Lilly, 73 Ind. 252 (1881); Ohio & M. R.R. Co. v. Tindall, 13 Ind. 366 (1859); Southern Ind. Ry. Co. v. Moore, 34 Ind. App. 154, 72 N.E. 479 (1904). '°26 Ind. App. 28, 59 N.E. 47 (1901). "M at 35, 59 N.E. at 49. 'M3 Ind. 366 (1859). '^204 Ind. 152, 178 N.E. 440 (1931). ''Id. at 155-56, 178 N.E. at 441. ''Id. at 156, 178 N.E. at 441. '''Id. at 160, 178 N.E. at 443. 1985] PECUNIARY LOSS RULE 733 a measure of damages.'^ It pointed out, however, that the evidence had estabhshed a pecuniary loss to the plaintiff for which he could recover monetary damages over and above the funeral expenses.'^ Additionally, the court cited American Motor Car Co. v. Robbins,^^ where the supreme court conceded that the amount of damages that compensates a parent for pecuniary loss, though incalculable, could be estimated, even though this measurement bore some semblance to conjecture. ^° The Thompson court, noting the definition of the pecuniary loss rule in Indiana,^' explained that cost of maintenance was deducted from the amount of recovery because of the parents' legal duty to support their children, not because the wrongdoer had benefited the parents in any way.^^ Since the Thompson case, the Indiana Court of Appeals has had numerous opportunities to address this same question. In Hahn v. Moore,^^ the court of appeals, en banc, used the traditional definition of pecuniary loss as set out in City of Elwood v. Addison.^"^ The court also, however, permitted an instruction that allowed the jury to consider the pecuniary value of all acts of kindness and attention that the deceased child might reasonably have rendered to his parents. ^^ This was a departure from a strict reading of the pecuniary loss rule because kindness and attention are not normally considered pecuniary items. Indeed, in Wallace v. Woods,^^ the appellate court, again en banc, stated that "[t]he measure of damages in Indiana for a minor's death is being Hberalized by the courts in an effort to meet the present day conditions. "^^ The most liberal interpretation of the rule was enunciated five years after the Wallace decision in Childs v. Rayburn, ^^ where the Indiana Court of Appeals, First District, allowed a set of jury instructions that broke down compensable damages into the following categories: loss of care, loss of love and affection, loss of support and maintenance, loss of parental training and guidance, and the pecuniary value of all acts 'Ud. at 158, 178 N.E. at 442 (quoting McGarr v. National & Providence Worsted Mills, 24 R.I. 447, 460-61, 53 A. 320, 325 (1902), which had cited Louisville N.A. & C.R. Co. V. Rush, 127 Ind. 545, 26 N.E. 1010 (1891)). '«204 Ind. at 161-62, 178 N.E. at 443. '^81 Ind. 417, 103 N.E. 641 (1913). '°Id. at 422, 103 N.E. 641-42. ^'5ee supra note 11 and accompanying text. ^^204 Ind. at 164, 178 N.E. at 444. "127 Ind. App. 149, 133 N.E.2d 900 (1956) (en banc), transfer denied, Dec. 21, 1956. ''Id. at 158, 133 N.E.2d at 904 (quoting City of Elwood v. Addison, 26 Ind. App. at 35, 59 N.E. at 49). See supra note 11 and accompanying text. "127 Ind. App. at 158-59, 133 N.E.2d at 904. ^^149 Ind. App. 257, 271 N.E.2d 487 (1971) (en banc), transfer denied, Feb. 29, 1972. ''Id. at 267-68, 271 N.E.2d at 493. ^n69 Ind. App. 147, 346 N.E.2d 655 (1976), transfer denied, Nov. 4, 1976 (overruled by Miller v. Mayberry, 462 N.E.2d 1316 (Ind. Ct. App. 1984), transfer denied, Sept. 15, 1984). 734 INDIANA LAW REVIEW [Vol. 18:731 of kindness and attention. ^^ The court also allowed an instruction by the trial court defining pecuniary loss as the deprivation of something to which the parents were legally entitled, or a deprivation of benefits which the parents in all probability would have received from the decedent had he not been killed. ^° In considering these instructions, the appellate court ruled that while the instructions did restate the law, they did not misstate it.^' In Boland v. Greer,^^ the third district appellate court ignored the interpretation by the first district in Childs and only considered that part which had been accepted in Hahn — the pecuniary value of acts of kindness and attention." In Boland, the plaintiff specifically requested that the traditional pecuniary loss rule be abandoned in favor of rec- ognition of loss of love and companionship.^"^ The plaintiff further asserted that a failure to recognize these damages constituted a denial of equal protection." The plaintiff argued that suing for the loss of a child's society was analogous to suing for loss of spousal consortium or loss of parental society for which loss of companionship and society are recoverable.^^ The court rejected the spousal consortium argument, finding that the marital relationship differed significantly from the parent/ child relationship." In distinguishing actions for loss of parental con- sortium,^^ the court noted that the child's injury also includes loss of nurture and parental guidance and training because of the parent's wrongful death. ^^ One of the more notable points in this opinion, however, is a discussion of the viability of the pecuniary loss rule."^^ Although the court expressly stated that the viability of the rule was questionable, it held that it was obliged to follow the precedent estabHshed by the Indiana Supreme Court in Thompson and earlier cases. "^^ ^"^169 Ind. App. at 156-57, 346 N.E.2d at 662. The court also correctly allowed damages for any medical expenses the parents incurred as a result of their son's death, and funeral expenses. Id. ''Id. ''Id. at 159, 346 N.E.2d at 664. "409 N.E.2d 1116 (Ind. Ct. App. 1980), transfer denied, July 13, 1981. "See supra note 25 and accompanying text. 3M09 N.E.2d at 1118. ''Id. at 1120. '^Id. '''Id. The court stated that the loss of sexual services is a major part of the loss of spousal consortium. There is, of course, no such element in the loss of a child's society. Id. '"For a more general look at the loss of parental consortium, see Note, Recovery for Loss of the Injured Parent's Society: Ferriter v. Daniel O'Connel [sic] Sons, Inc., 1981 Det. C. L. Rev. 987 (1981); Comment, A Child's Independent Action for Loss of Consortium—A Change in the Iowa Tort Scheme, 67 Iowa L. Rev. 1081 (1982). 3^09 N.E.2d at 1120. '''Id. ''Id. See supra notes 9, 13-22 and accompanying text. The court also noted that the principle of stare decisis would be seriously impaired if the law could only be considered as "dependable as the most current advance sheet." 409 N.E.2d at 1120. 1985] PECUNIARY LOSS RULE 735 Following the court's statement of general dissatisfaction with the pecuniary loss rule, the appellants submitted a petition to transfer to the Indiana Supreme Court. The petition was denied/^ but not without a vigorous and scathing dissent by Justice Hunter."*^ Justice Hunter recognized that the rule is anomalous, at odds with today's state of affairs, and without legal or factual basis except for its stare decisis value."*^ The dissenting judge quoted Wycko v. Gnodtke,'^^ an opinion which noted that the barbarous concept of children being economic assets, traceable to the industrial development of the nineteenth century, was a reproach to justice/^ Justice Hunter pointed out that parents do not undertake the business of parenting because it is a profit-making venture, and that the idea that children are a property right in which parents have a financial interest is abhorrent/^ Additionally, Justice Hunter pointed out that the court had not hesitated to overrule precedent and thus change the law in other areas /^ In light of the dissent by Justice Hunter, it is not surprising that in 1983, the trial court judge in Miller v. Mayberry^^ disregarded the pecuniary loss rule and allowed damages to be awarded for lost love and affection. On appeal, the court gave a capsulized history of the pecuniary loss rule in Indiana, ^^ noting specifically the Thompson,^^ Hahn,^^ Childs,^^ and Boland^"^ decisions. ^^ After reviewing these cases, the court specifically held that Childs had improperly extended the pecuniary loss rule, and to this extent, was overruled. ^^ Citing Thompson, the court held that the determination of damages was a business and ^H22 N.E.2d 1236 (Ind. 1981). ^^Id. at 1236, (Hunter, J., dissenting). ''Id. ^^361 Mich. 331, 105 N.W.2d 118 (1960). '''Id. at 334-38, 105 N.W.2d at 120-21. ^^22 N.E.2d at 1239. ''Id. (citing Brooks v. Robinson, 259 Ind. 16, 284 N.E.2d 794 (1972) (doctrine of interspousal immunity abolished as based on outmoded legal theories); Troue v. Marker, 253 Ind. 284, 252 N.E.2d 800 (1969) (prohibition of wife's recovery for loss of consortium abrogated on basis of changes in legal and social status of women); Perkins v. State, 252 Ind. 549, 251 N.E.2d 30 (1969) (sovereign immunity abolished in the face of the changing role of government and development of insurance)). ^^462 N.E.2d 1316 (Ind. Ct. App. 1984), transfer denied, Sept. 13, 1984. In this case, the deceased was a seventeen-month-old boy who had been injured when he was struck by an automobile. His father had taken him immediately to the hospital for an examination. He was shortly released with the diagnosis that he was fine. The following morning the child became unconscious and died shortly thereafter from internal bleeding. Id. at 1316. '''Id. at 1317-18. '^See supra notes 13-22 and accompanying text. "5ee supra notes 23-25 and accompanying text. "5ee supra notes 28-31 and accompanying text. ''See supra notes 32-41 and accompanying text. «462 N.E.2d at 1317-18. '''Id. at 1318. 736 INDIANA LAW REVIEW [Vol. 18:731 commercial question only.^^ The opinion did not, however, decide whether the extension made in Hahn v. Moore^^ was improper, leaving open the question of whether the pecuniary value of acts of kindness and affection could still be considered. Notwithstanding this ambiguity, the court very clearly held that the plaintiffs' nonpecuniary loss of love and affection could not be considered in assessing damages. ^^ Furthermore, the court reiterated that trial courts and the Indiana Court of Appeals are obliged to follow the precedent established by the Indiana Supreme Court in Thompson v. Town of Fort Branch. ^^ The Indiana Supreme Court denied transfer of this case on September 13, 1984,^' effectively perpetuating an unsatisfactory rule of law. Because of the clear statement in Mayberry that only the Indiana Supreme Court has the power to change this rule,^^ the failure of the supreme court to grant transfer and to modify or abolish the rule is a failure on the part of the court to recognize that the rule is no longer viable. Again, Justice Hunter wrote a dissenting opinion to the decision to deny transfer of the case.^^ By reference to his dissent in Boland v. Greer, ^"^ Justice Hunter reiterated his position that the rule is a "brutal and archaic law,"^^ and that the time has come to compensate parents for the real loss they suffer.^^ III. Abandonment of the Rule by Other Jurisdictions A. Solutions to Proposed Problems in the Application of a Nonpecuniary Award Because the pecuniary loss rule has its roots in early English law,^^ American precedent is also very deeply rooted.^^ Indeed, the very basis ''Id. (citing Thompson v. Town of Fort Branch, 204 Ind. 152, 158, 178 N.E. 440, 442 (1931)). The Thompson court quoted McGarr v. National & Providence Worsted Mills, 24 R.I. 447, 53 A. 320 (1902), where the court stated, "It is therefore practically a business and commercial question only, and the elements of affection and sentiment have no place therein." Id. at 460-61, 53 A. at 325-26. '^See supra notes 23-25 and accompanying text. While Hahn is often considered an original extension of the rule made since the Thompson case, the Indiana Supreme Court, in 1891, included "the pecuniary value of all acts of kindness and attention" in their computation of damages in Louisville, N.A. & C. Ry. Co. v. Rush, 127 Ind. 545, 546, 26 N.E. 1010, 1011 (1891). ^^462 N.E.2d at 1319. The court chastised the lower court's attempt at advancing the state of the law in this area. Rather, it stated that a trial court, as well as an appeals court, is obliged to follow a supreme court opinion. Id. "^Id. at 1318 (quoting Boland v. Greer, 409 N.E.2d 1116, 1120 (Ind. Ct. App. 1980), transfer denied, July 13, 1981). "'467 N.E.2d 1208 (Ind. 1984). "462 N.E.2d at 1319. "467 N.E.2d at 1208 (Hunter, J., dissenting) (denial of transfer). ^See supra notes 43-48 and accompanying text. "'Aei N.E.2d at 1209 (Hunter, J., dissenting). ^Id. at 1210. After this case was remanded to the trial court for a redetermination of damages, the trial judge awarded damages based on the standard in Hahn v. Moore, which allowed compensation for the pecuniary value of all acts of kindness and attention. Mayberry v. Miller, No. S582-0681 (Marion County Super. Ct., Nov. 1, 1984). ''See, e.g., Blake v. Midland Ry. Co., 18 Q.B. 93, 118 Eng. Rep. 35 (1852). "'See, e.g., Morgan v. Southern Pac. Co., 95 Cal. 510, 30 P. 603 (1892); Pierce v. 1985] PECUNIARY LOSS RULE 737 of recovery for wrongful death is Lord Campbell's Act.^^ However, Lord Campbell's Act does not in itself restrict recovery to pecuniary loss.^^ Rather, shortly after its enactment, it was judicially determined that damages should be limited to those losses pecuniary in nature.^' Every American jurisdiction has a wrongful death statute, each somehow pat- terned after Lord Campbell's Act.^^ Conners, 20 Colo. 178, 37 P. 721 (1894); Southern Ind. Ry. Co. v. Moore, 34 Ind. App. 154, 72 N.E. 479 (1904); Aaron v. Missouri & Kan. Tel. Co., 89 Kan. 186, 131 P. 582 (1913); Graffam v. Saco Grange, 112 Me. 508, 92 A. 649 (1914); Oklahoma Portland Cement Co. v. Dow, 98 Okla. 44, 224 P. 168 (1924). "^Lord Campbell's Act (Fatal Accidents Act), 1846, 9 & 10 Vict., ch. 93. ™Lord Campbell's Act, in pertinent part, provides: § 1 [WJhensoever the Death of a Person shall be caused by wrongful Act, Neglect, or Default, and the Act, Neglect, or Default is such as would (if Death had not ensued) have entitled the Party injured to maintain an Action and recover Damages in respect thereof, then and in every such Case the Person who would have been liable if Death had not ensued shall be liable to an Action for Damages, notwithstanding the Death of the Person injured .... § 2 [E]very such Action shall be for the Benefit of the Wife, Husband, Parent, and Child of the Person whose Death shall have been so caused, and shall be brought by and in the Name of the Executor or Administrator of the Person deceased; and in every such Action the Jury may give such Damages as they may think proportioned to the Injury resulting from such Death to the Parties respectively for whom and for whose Benefit such Action shall be brought; and the Amount so recovered, after deducting the Costs not recovered from the Defendant, shall be divided amongst the before-mentioned Parties in such Shares as the Jury by their Verdict shall find and direct. Id. (emphasis added). ''See Blake v. Midland Ry. Co., 18 Q.B. 93, 118 Eng. Rep. 35 (1852). '^See Ala. Code §§ 6-5-391, -410 (1975); Alaska Stat. § 9.55.580 (1962); Ariz. Rev. Stat. Ann. § 12-611 (1982); Ark. Stat. Ann. § 27-906 (1979); Cal. Civ. Proc. Code § 377 (West Supp. 1985); Colo. Rev. Stat. § 13-21-201 (1973); Conn. Gen. Stat. Ann. § 52-555 (West Supp. 1984); Del. Code Ann. tit. 10, § 3722 (Supp. 1982); Fla. Stat. Ann. § 768.19 (West Supp. 1984); Ga. Code Ann. §§ 51-4-2 to -4 (Supp. 1982); Hawaii Rev. Stat. § 663-3 (1976); Idaho Code § 5-311 (Supp. 1984); III. Ann. Stat. ch. 70, § 1 (Smith-Hurd 1959); Ind. Code § 34-1-1-2 (1982); Iowa Code Ann. § 633.336 (West Supp. 1983-1984); Kan. Civ. Proc. Code Ann. § 60-1901 (1967); Ky. Rev. Stat. Ann. § 411.130 (Bobbs-Merrill Supp. 1984); La. Civ. Code Ann. art. 2315 (West Supp. 1985); Me. Rev. Stat. Ann. tit. 18-A, §2-804 (1964 & Supp. 1982-1983); Md. Cts. & JuD. Proc. Code Ann. §§ 3-902, 3-904 (1980 & Supp. 1983); Mass. Gen. Laws Ann. ch. 229, § 2 (West 1985); Mich. Comp. Laws Ann. § 600.2922 (West Supp. 1984-1985); Minn. Stat. Ann. § 573.02 (West Supp. 1984); Miss. Code Ann. § 11-7-13 (Supp. 1984); Mo. Ann. Stat. § 537.080 (Vernon Supp. 1985); Mont. Code Ann. §§ 27-1-512 to -513 (1983); Neb. Rev. Stat. §§ 30-809 to -810 (1943); Nev. Rev. Stat. § 41.085 (1983); N.H. Rev. Stat. Ann. § 556.12 (1974); N.J. Stat. Ann. § 2A:31-1 (West 1952); N.M. Stat. Ann. §§ 41-2-1 to -4 (1978); N.Y. Est. Powers & Trusts Law § 2d § 5-4.1 to -4.6 (McKinney Supp. 1984-1985); N.C. Gen. Stat. § 28A-18-2 (1976); N.D. Cent. Code § 32-21-01 Supp. (1983); Ohio Rev. Code Ann. §§ 2125.01-.04 (Baldwin 1982); Okla. Stat. Ann. tit. 12, § 1053 (West Supp. 1984-1985); Or. Rev. Stat. § 30.020 (1983); 42 Pa. Cons. Stat. Ann. § 8301 (Purdon 1982); R.I. Gen. Laws — § 10-7-1 (1969); S.C. Code Ann. § 15-51-10 (Law. Co-op. 1976); S.D. Codified Laws Ann. § 21-5-1 (Supp. 1984); Tenn. Code Ann. § 20-5-113 (1980); Tex. Rev. Crv. Stat. Ann. art. 4671 (Vernon Supp. 1985); Utah Code Ann. §§ 78-11-6 to -7 (1953); Vt. Stat. Ann. tit. 14, §§ 1491-1492 (1974 & Supp. 1982); Va. Code §§ 8.01-50 (1984); Wash. Rev. Code Ann. § 4.20.010 (1962); W. Va. Code § 55-7-5 (1981); Wis. Stat. Ann. § 895.03 (West 1983); Wyo. Stat. § 1-38-101 (Supp. 1984). 738 INDIANA LAW REVIEW [Vol. 18:731 The pecuniary loss rule was initially applied to all wrongful death actions, not just those for the wrongful death of children. ^^ Today, however, most jurisdictions allow recovery for nonpecuniary losses, such as loss of consortium, parental guidance, society, affection, love, or protection. ^^ Especially with the wrongful death of children, the old pecuniary loss rule has been rapidly replaced by recognition of some of these "relational'' damages. ^^ The first decision to recognize these types of damages was Wycko V. GnodtkeJ^ The court in Wycko noted that the pecuniary loss rule was solely a product of the child labor era,^^ and that the value of a child must be based on the value of a human life and the contribution that a family member has in making the family a functioning social and economic unit.^^ Additionally, the court recognized that adhering to this rule today perpetuates the fiction that a minor child is a bread- winner.^^ Obviously, quite the contrary is true. The Indiana Supreme Court has taken note of and described the changes in attitude towards child labor that have occurred since the early nineteenth century. ^^ Indeed, if the pecuniary loss rule were strictly applied, once the expenses for maintenance, support, schooling, and other expenses were offset against the damages, most parents would end up owing the tortfeasor.^' After the Wycko decision^^ many other jurisdictions soon followed suit, either by overruling precedent or by statutory amendment. ^^ ''^See supra note 71. ''See, e.g.. Van Cleave v. Lynch, 109 Utah 149, 166 P.2d 244 (1946) (society, love, companionship, protection, affection of minor child); Denver Consol. Tramway Co. v. Riley, 14 Colo. App. 132, 59 P. 476 (1889) (society and companionship of spouse). '^See infra notes 76-129 and accompanying text. Relational damages include loss of society, companionship, love, affection, and acts of kindness and attention. ^^361 Mich. 331, 105 N.W.2d 118 (1960). ''Id. at 334-38, 105 N.W.2d at 120-21. ""Id. at 339, 105 N.W.2d at 122. '"Id. at 341, 105 N.W.2d at 123. ^The Indiana Supreme Court, in Inland Steel Co. v. Yedinak, 172 Ind. 423, 87 N.E. 229 (1909), noted that the frightful abuses and distressing consequences of the employment of children in mines and factories led many states to prohibit child labor and the accompanying peril to the child's health, life, and limbs, thus affording the children an opportunity to enjoy their childhood. Id. at 435-38, 87 N.E. at 235-36. ^^See Decof, Damages in Actions for Wrongful Death of Children, 47 Notre Dame Law. 197 (1971). *^Two years after Wycko was decided, the Michigan legislature apparently agreed with the court, because it amended Michigan's wrongful death statute to include recovery for the loss of companionship. See Mich. Comp. Laws Ann. § 600.2922 (West Supp. 1984-1985). ''See Ark. Stat. Ann. § 27-909 (1979); Boies v. Cole, 99 Ariz. 198, 407 P. 2d 917 (1965) (en banc); Krouse v. Graham, 19 Cal.3d 59, 137 Cal. Rptr. 863, 562 P.2d 1022 (1977) (en banc); Fla. Stat. Ann. § 768.21 (West Supp. 1984); Hawaii Rev. Stat. § 663-3 (1976); Volk v. Baldazo, 103 Idaho 570, 651 P. 2d 11 (1982); Bullard v. Barnes, 102 111. 2d 505, 468 N.E.2d 1228 (1984). Iowa Code Ann. § 633-336 (West Supp. 1983- 84); Kan. Stat. Ann. § 60-1904 (1976); La. Civ. Code Ann. art. 2315 (West Supp. 1985); Me. Rev. Stat. Ann. tit. 18-a, § 2-804 (Supp. 1982); Md. Cts. & Jud. Proc. 1985] PECUNIARY LOSS RULE 739 In general, the fifty states may be classified into three categories i^"* those states that adhere to a strict application of the pecuniary loss rule, where damages include only loss of expected financial contributions;^^ those states that adhere to a looser application of the pecuniary loss rule, where recovery can be had for the pecuniary value of the lost companionship, society, and affection;^^ and those states that have ab- rogated the pecuniary loss rule in its entirety. ^^ The large majority of jurisdictions fall into the second and third categories. Today, only a hand- ful of jurisdictions continue to disallow recovery for the loss of compa- nionship or society in cases involving the wrongful death of children.*^ The courts that have judicially abandoned the pecuniary loss rule have rarely found it necessary to refute arguments against changing the rule.*' This is because there are few, if any, viable reasons, other than stare decisis, for retaining the pecuniary loss rule.'" The primary obstacle that a court must overcome in dispensing with the pecuniary loss rule is the stare decisis principle. Many courts are unwilling to engage in what they consider a usurpation of legislative power by making a judicial pronouncement that the pecuniary loss rule is no longer viable.^' The courts, however, fail to realize that they need Code Ann. § 3-904(cl) (Supp. 1983); Mass. Gen. Laws Ann. ch. 229, § 2 (West 1985); Mich. Comp. Laws Ann. § 600.2922 (West Supp. 1984-1985); Fussner v. Andert, 261 Minn. 347, 113 N.W.2d 355 (1961); Bouroughs v. Oliver, 226 Miss. 609, 85 So.2d 191 (1956); Mo. Ann. Stat. § 537.090 (Vernon Supp. 1985); Sanders v. Mount Haggin Livestock Co., 160 Mont. 73, 500 P.2d 397 (1972); Selders v. Armentrout, 190 Neb. 275, 207 N.W.2d 686 (1973); Green v. Bittner, 85 N.J. 1, 424 A.2d 210 (1980); Nev. Rev. Stat. § 41.085 (1983); N.C. Gen. Stat. § 28-174 (Supp. 1982); Okla. Stat. Ann. tit. 12, § 1055 (West Supp. 1984-1985); Or. Rev. Stat. § 30.020 (1983); Nance v. State Bd. of Educ, 277 S.C. 64, 282 S.E.2d 848 (1981); Anderson v. Lale, 88 S.D. Ill, 216 N.W.2d 152 (1974); Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983); Jones v. Carvell, 641 P. 2d 105 (Utah 1982); Vt. Stat. Ann. tit. 14, § 1492(b) (Supp. 1982); Va. Code § 8.01-52 (1984); Wash. Rev. Code Ann. § 424.010 (Supp. 1985); W. Va. Code § 55-7-6 (Supp. 1984); Wis. Stat. Ann. § 895.04 (West Supp. 1984-1985); Wyo. Stat. § 1-38-102 (Supp. 1984). ^"See Finkelstein, Pickrel & Glasser, The Death of Children: A Nonparametric Statistical Analysis of Compensation for Anguish, lA Colum. L. Rev. 884, 886-87 (1974) [hereinafter cited as Finkelstein, Pickrel & Glasser]. ""'See, e.g.. Miller v. Mayberry, 462 N.E.2d 1316 (Ind. Ct. App. 1984), transfer denied, Sept. 13, 1984; Keaton v. Ribbeck, 58 Ohio St. 2d 443, 391 N.E.2d 307 (1979). '''•See, e.g.. Green v. Bittner, 85 N.J. 1, 424 A.2d 210 (1980). ^'See, e.g., Md. Cts. & Jud. Proc. Code Ann. § 3-904(d) (Supp. 1983). Maryland has one of the most expansive statutes in this area. It provides for recovery for "mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education . . . ." Id.; see also Fla. Stat. Ann. § 768.21 (West Supp. 1984). ««See supra note 83. See also Sanchez v. Schindler, 651 S.W.2d 249, 252 (Tex. 1983) (where the court stated that thirty-five states allow recovery for loss of companionship and society). ^•"See Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118 (1960). ^See Boland v. Greer, 422 N.E.2d 1236 (Ind. 1981) (Hunter, J., dissenting) (denial of transfer); Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118 (1960). "'Id. 740 INDIANA LAW REVIEW [Vol. 18:731 not necessarily don a "legislative cap" in changing this rule. Many jurisdictions still follow a pecuniary loss rule, but allow recovery for the pecuniary value of the lost companionship and affection.^^ This is accomplished by finding that acts of kindness, affection, and compan- ionship have a pecuniary value to the parents and are thus compensable under the statute. Moreover, the pecuniary loss rule was initially created by judicial fiat.^^ Consequently, there should be no bar to a court reevaluating the rule once it has become apparent that the basis for the rule no longer exists. In addition to the stare decisis argument, it has been argued that sympathetic juries will award excessive and inconsistent verdicts. ^"^ How- ever, in a statistical study made on the question of amount and consistency of damages, it was found that in states which limited damages to pecuniary losses, the median award was $28,845.^^ Where recovery for items such as loss of society or companionship was specifically allowed, the median award was $44,060.^^ This increase is to be expected because more items of loss are to be considered in the latter. ^^ The study also found that there was actually less variation in awards in expanded recovery states than in the pecuniary loss states,^^ thereby refuting the contention that allowing nonpecuniary damages would result in greater inconsistency. One reason given for greater inconsistency among pecuniary loss cases is that judges very often apply the pecuniary loss rule inconsistently. Sometimes a strict application will be required, and other times the judge will only "wink" at the rule and allow an instruction contradicting it.^^ This intermittent application of the rule results in a wide discrepancy among verdicts. '°° Inconsistent verdicts are also the result of the basic conflict between the pecuniary loss rule and current notions of fair compensation.'^' One court even noted that juries often attempt to do some kind of justice despite the judges' charge, so they place an unrealistically high value on household chores. '°^ The goal of greater uniformity would be promoted by removing the conflict between the law and human impulse. '^^ '^See, e.g.. Green v. Bittner, 85 N.J. 1, 424 A.2d 210 (1980). •"'See Blake v. Midland Ry. Co., 18 Q.B. 93, 118 Eng. Rep. 35 (1852). See supra note 71 and accompanying text. "'See Fussner v. Andert, 261 Minn. 347, 113 N.W.2d 355 (1961) (fear of excessive jury verdicts argued by defendant). ^Tinkelstein, Pickrel & Glasser, supra note 84, at 887. '''Id. ""'Id. "'Id. at 892. ""Id. "^See Belfance, The Inadequacy of Pecuniary Loss as a Measure of Damages in Actions for the Wrongful Death of Children, 6 Ohio N.U.L. Rev. 543 (1979). ""Finkelstein, Pickrel & Glasser, supra note 84, at 891. '"^Green v. Bittner, 85 N.J. 1, 19, 424 A.2d 210, 219 (1980). ""Finkelstein, Pickrel & Glasser, supra note 84, at 891. See, e.g., Compania Dom- inicana de Aviacion v. Knapp, 251 So. 2d 18 (Fla. Dist. Ct. App.), cert, denied, 256 So. 2d 6 (Fla. 1971) (where $1,800,000.00 was awarded to the parents of a fifteen-year-old boy who was killed when an airplane crashed into the garage of their home). 1985] PECUNIARY LOSS RULE 741 In order to combat the problem of excessive verdicts, the authors of the statistical study advocate placing a ceiling on the amount re- coverable for emotional injury.'^ This permits recovery for the loss of companionship and other relational injuries, while eliminating the threat of runaway verdicts. '^^ Some courts have made the argument that the damages awarded for the wrongful death of children must be limited to pecuniary losses because damages for lost love, affection, and society of the child are only speculative, and that no amount could truly compensate the plaintiffs for their loss.'^ This argument breaks down, however, when one considers that courts are constantly redressing emotional and physical injuries in terms of monetary awards. Loss of spousal consortium, emotional pain and suffering, the loss of a limb, and decreased enjoyment of life are all losses for which one cannot truly be compensated in monetary terms. The Indiana courts in particular have acknowledged that the value of a child's Hfe is '' 'incapable of admeasurement by any mathematical or exact rule, and the amount must be fixed by estimate, which bears some semblance to conjecture.' "'°^ However, compensation to the parent of a deceased child for a nonpecuniary loss is no more conjectural than compensation for other types of physical or emotional injuries. '^^ B. Two Recent Approaches Two recent cases in other jurisdictions, Bullard v. Barnes^^^ and Sanchez v. Schindler,^^^ have taken different approaches to alleviating the harshness of the pecuniary loss rule. Both approaches are typical of the recent trend. In Bullard, the trial court's instruction allowed the jury to consider the pecuniary value of "the parents' loss of society with the decedent."'" The appellate court considered this instruction in light of the fact that of the twenty-three jurisdictions which limit recovery to pecuniary losses, fourteen of those jurisdictions allow parental recovery for the loss of society of the child. "^ The appellate court found that the term "pecuniary '°Tinkelstein, Pickrel & Glasser, supra note 84, at 891. '"^See, e.g.. Borer v. American Airlines, Inc., 19 Cal. 3d 441, 563 P.2d 858, 138 Cal. Rptr. 302 (1977); Kennedy v. Byers, 107 Ohio St. 90, 140 N.E. 630 (1923); Koskela V. Martin, 91 III. App. 3d 568, 414 N.E.2d 1148 (1980). '«^Thompson v. Town of Fort Branch, 204 Ind. 152, 162, 178 N.E. 440, 444 (1931) (quoting American Motor Car Co. v. Robbins, 181 Ind. 417, 422, 103 N.E. 641, 642 (1914) ). 642 (1914)). '°«5ee, e.g., Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981); Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (1981). "»468 N.E.2d 1228 (III. 1984). "°651 S.W.2d 249 (Tex. 1983). '"468 N.E.2d at 1231. With the Bullard decision, Illinois is now one of fifteen jurisdictions which allow parental recovery for loss of society of the child when the statute specifies that the loss must be pecuniary. "^/oT. at 1232. 742 INDIANA LAW REVIEW [Vol. 18:731 injuries" had received an interpretation that was broad enough to en- compass the loss of a child's society.*'^ The court rejected the argument that the legislature was the proper body to decide the question, finding that previous decisions had extended the meaning of the term pecuniary enough so that it would be anomalous to require the legislature's ap- proval."'* The fact that spouses and children could recover these non- pecuniary losses was further authority that the court did not need legislative approval."^ One caveat to this approach is that the court required a set-off of child rearing expenses in arriving at a verdict."^ This approach is not novel, "^ but it does illustrate an attempt to assess more accurately the damages suffered by parents."^ In Sanchez v. Schindler,^^^ the court dealt with a Texas wrongful death statute limiting recovery to "actual damages. "'^^ Furthermore, the jury could award such damages as they thought proportionate to the injuries.'^' Prior to Sanchez, damages in child death cases had been judicially limited to pecuniary losses. '^^ In holding that parents could now recover for loss of their child's society and companionship, the Sanchez court overruled one hundred years of precedent. '^^ In its decision, the court noted that a true ap- plication of the pecuniary loss rule might well reward the tortfeasor and that the rule had developed during an era when children were economic assets. '^^ Additionally, the court previously had held that injuries to the familial relationship were compensable in a suit for loss of spousal consortium. '^^ The Sanchez court reasoned that the plaintiffs' claim to ''Ud. See also Elliott v. Willis, 92 111. 2d 530, 442 N.E.2d 163 (1982) (where the court held, based on a broad definition of pecuniary injury, that a widowed spouse had the right to recover damages for loss of consortium under the wrongful death act). "M68 N.E.2d at 1233. '''Id. at 1234. "^M at 1234-35. '''See, e.g., Fuentes v. Tucker, 31 Cal. 2d 1, 9, 187 P. 2d 752, 757 (1947); Haumersen V. Ford Motor Co., 257 N.W.2d 7, 17 (Iowa 1977); Sellnow v. Fahey, 305 Minn. 375, 382-83, 233 N.W.2d 563, 568 (1975). See also Comment, Damages in Wrongful Death and Survival Actions, 29 Ohio St. L.J. 420, 447 (1968). Cf. Jones v. Hildebrant, 191 Colo. 1, 3 n.l, 550 P.2d 339, 341 n.l (1976); Sinn v. Burd, 486 Pa. 146, 151-52 n.3, 404 A.2d 672, 675 n.3 (1979) (jurisdictions where child rearing expenses must be deducted from the award, but where no recovery for loss of society may be awarded). "^See Comment, Damages in Wrongful Death and Survival Actions, 29 Ohio St. L.J. 420, 447 (1968). "^651 S.W.2d 249 (Tex. 1983). '2°Tex. Rev. Civ. Stat. Ann. art. 4671 (Vernon Supp. 1985). This statute creates a cause of action for "actual damages on account of the injuries causing the death. . . ." Id. '^'Id. at art. 4677. This statute provides that "[t]he jury may give such damages as they may think proportionate to the injury resulting from such death." Id. "'See, e.g., Houston & T. C. Ry. v. Cowser, 57 Tex. 293, 303 (1881). '"651 S.W.2d at 251. '^'Id. "'See Whittlesey v. Miller, 572 S.W.2d 665, 668 (Tex. 1978). 1985] PECUNIARY LOSS RULE 743 damages for the loss of their child's society was closely analogous to a spouse's claim to damages for loss of spousal society; thus, it would be illogical to allow one and preclude the other. The court also pointed out that twenty-one states statutorily recognize recovery for loss of society and companionship'^^ and that fourteen more states interpret their statutes requiring pecuniary loss to include loss of society. '^^ Additionally, the court noted that the judiciary traditionally had been the "lawmaker" in the area of tort law.'^^ Moreover, the Sanchez court extended the recovery of parents to include definition of **actual damages" for mental anguish suffered by the parents. '^^ The Sanchez court was very clear in its position that the pecuniary loss rule should no longer stand as an obstacle to parents who suffer a tremendous loss upon the death of their minor child. IV. Analogous Tort Situations Where "Relational" Damages Are Awarded A. Recovery by Children for Loss of Parental Society The first court to recognize that children have a cause of action for the loss of parental society was the Massachusetts Supreme Court in Ferriter v. Daniel O'ConnelFs Sons, Inc.,^^^ decided in 1980. The Ferriter court ruled that if emotional dependency upon the parent can be demonstrated, then the child can collect damages for the loss of that parent's society.'^' Interestingly, Massachusetts had already recognized a cause of action to recover nonpecuniary damages for the death of a child. The court therefore drew an analogy between recovery for the death of a parent and recovery for the death of a child, and said that if the parental interest received judicial protection, '^^ similar protection should be afforded to children when they suffer the loss of a parent.'" Prior to the Ferriter case, courts had been reluctant to recognize the rights of children for the loss of a parent. The first right granted to children was the right to shelter, food, clothing, schooling, and moral support and guidance from their father. '^^ Because the loss of consortium action in both spousal consortium and children's consortium cases arose '^^651 S.W.2d at 252-53. See supra note 83. '^V