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Tynan v. Curzi6/28/2000
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 10, 2000
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, ยง 125 at 934 (5th ed. 1984); see also Timothy
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