Can Adult Children Bring Loss-Of Claims?

Supreme Court Hears Arguments in 'Rolf'
By J. P. Finet
Ohio Lawyers Weekly
2/12/01

While minor children can be awarded damages for loss of consortium claims stemming from a parent's injuries, the Supreme Court of Ohio has never addressed whether "adult" children are also entitled to such awards.

The court undertook the issue recently when it heard oral arguments in Rolf v. Tri State Motor Transit Co .

In Rolf , a federal court seeks clarification on a point of Ohio law: Can emancipated adult children, who live apart from their parents and support themselves, maintain loss-of-consortium claims for a parent's injuries?

The question arose in a lawsuit filed by Bonnie Roth and David Martin against Tri State Motor Transit Company for injuries their father suffered when a Tri State semi hit his car from behind. According to court documents, Kenneth Martin's cognitive and basic body functions have been seriously impaired by the 1996 accident.

"In 1993, this honorable court issued the seminal decision in Gallimore v. Children's Hospital Medical Center recognizing that a minor child has a loss of consortium claim in Ohio as the result of a physical injury to a parent," said W. Craig Bashein for the plaintiffs. "Today, Bonnie Roth and David Martin ware asking this court to recognize that this cause of action exists for all children in Ohio, whether emancipated or minor, whether 17 years old or 19 years old, whether living at home or living down the street.

"By recognizing this cause of action, this court has acknowledged the logical implication of their holding in Gallimore . To answer the issue before the court in the negative would create damages of arbitrariness and absurd results that presently exist in the law. For instance, an 18 year old whose father is critically injured has no right of recovery as the law currently is read yet his 17-year-old sister or brother would have a cause of action."

William Heywood, who represented Tri State, countered that there were two primary reasons why the court should not recognize a claim for loss of consortium by adult children. The first is that an adult child has an easier time adjusting to the loss of a family member's love, care and companionship and is capable of developing new relationships to replace the one he has lost. The second is that, to date, there is a presumption that a minor, because he or she is a minor, loses consortium simply through the loss of a parent.

Once a child passes into adulthood, whether it be at age 18 or 21, there then becomes an issue of proof, Heywood explained. For example, he questions whether in a case like the one currently before the court, the defendant can possibly prove the children did not have a close relationship to the parent? He said there are no such issues when a minor is involved because they are assumed to have been dependent upon their parents for love and support.

"So, I think that these two reasons provide a very strong rationale for saying that, once a person passes into adulthood the claim [for loss of consortium] is different, it no longer exists," he said.

Drawing The Line

Bashein argued that the courts should not be drawing an arbitrary line at the age of 18 when the Ohio Supreme Court has recognized the sanctity of the family repeatedly in the case law and that the Ohio legislature had also recognized the sanctity of that relationship.

"I think this court in deciding Gallimore , if you look at the public policy reasons behind the majority opinion, are not going to stop at the age of 18," he said. "In the modern family, the issues of support, companionship and guidance are just as important at the ages of 18, 19 and 20 as they are when they are under 18."

If the court were to extend Gallimore , what would an emancipated adult need to show to qualify to prove that there was indeed a loss of consortium, queried Justice Deborah Cook. She asked if a child would need anything more than a birth certificate to make a claim of loss of consortium.

"Certainly, your honor, a birth certificate wouldn't do it," Bashein responded.

The Supreme Court didn't define what consortium was in Gallimore , Bashein explained. He added that the burden would still be on that child to prove that there was a loss of damage as the rule currently is for minor children.

"I think there has been a legitimate concern raised at where you draw the line," Bashein said. "InGallimore , I think this court did draw the line. This court held that the line is drawn at the parent-child relationship. This court recognized the unique relationship of the parent and child."

Rather than using the age of 18 as an arbitrary dividing cut off for a child's consortium claims, Bashein said the issue of when a child should be awarded such claims should be left to the jury as the court suggested in Gallimore . He said that in the Gallimore opinion the court expressed the utmost confidence in the jury's ability to make such determinations.

Disabled Adult Children

Heywood pointed out that exceptions have been made to the currently-accepted Ohio rule cutting off loss of consortium claims at the age of 18. He said that such claims have been allowed in cases where the adult child was severely disabled and completely dependent upon the parent for support. In fact, Heywood said, in issuing its decision the Ohio Supreme Court has specifically analogized the case to that of one where a minor lost a parent.

When the justices asked whether the courts should consider whether an adult child is dependent upon the parent rather than simply looking at his or her age, Bashein replied, "I think drawing the line at dependency is just as dangerous as an arbitrary result as age 18."

He pointed out that the Ohio Legislature has traditionally stayed away from setting concrete cutoff points for when a child may no longer collect damages for a parent's injury in its legislation and, similarly, the court should not try to set such parameters. Indeed, Bashein said, the Legislature has explicitly recognized that, in some circumstances, parental obligations continue well past the age of 18 &45; such as in divorce proceedings where a child is in college.

Other States

While the issue has never been addressed in Ohio, Heywood told the court that only in seven other states has the highest court issued decisions upholding claims for loss of consortium for adult, emancipated children.

When the justices asked Bashein if those numbers were correct, he said they were, but that they must be looked at with the understanding that a number of jurisdictions do not recognize a minor's right to damages for loss of consortium, let alone an adult child's. He added that in those states where such awards were permitted for minor children many had not taken up the issue of whether such claims should be allowed for their adult siblings.

According to Bashein, if one were to look at the decisions of the courts which have addressed the issue, it would be seen that the decisions have come out with about 50 percent finding that such claims are permissible.

More Litigation?

Despite their stances on different sides of the issue, neither Heywood nor Bashein said they believed that the court's decision in Rolf would lead to any significant increase in litigation when the justices asked them for their opinions on the matter. Both attorneys said such actions, in practice, would be combined with other claims for damages and rarely litigated independently.

In fact, after being questioned by Justice Paul Pfeifer, Heywood agreed that an experienced litigator would not bring such a claim as a matter of strategy if it was feared the jury would view the adult children as trying to cash in.