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Gallimore v. Children's Hosp. Med. Ctr.9/15/1993
DOUGLAS, J.
We have granted jurisdiction in this case on only one issue of law. The question before us is whether the parents of a minor child who is injured by a third-party tortfeasor may recover damages in a derivative action for loss of filial consortium. In this context, loss of "consortium" would include the parent's loss of the services, society, companionship, comfort, love and solace of the injured child. We are convinced that the right to recover for such a loss has existed in Ohio for some time and, today, we expressly recognize that such losses are compensable in Ohio. Accordingly, we affirm the judgment of the court of appeals on this question.
Ohio has long recognized the right of a parent to maintain a derivative action against a third-party tortfeasor who injures the parent's minor child. See, e.g., Grindell v. Huber (1971), 28 Ohio St.2d 71, 57 O.O.2d 259, 275 N.E.2d 614, and Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 49 O.O.2d 435, 254 N.E.2d 10. See, also, Norvell v. Cuyahoga Cty. Hosp. (1983), 11 Ohio App.3d 70, 11 OBR 120, 463 N.E.2d 111. We have held that the parent may maintain the action for the child's medical expenses, and for the parent's loss of the child's "services." Grindell, supra, at paragraph one of the syllabus; Whitehead, supra, at paragraph three of the syllabus. However, none of our cases has specifically limited the parent's right to maintain the derivative action to recovery of losses of only a pecuniary nature.
In Clark v. Bayer (1877), 32 Ohio St. 299, a grandfather, standing in loco parentis to his two infant grandchildren, brought suit against the children's abductors, claiming that the tortfeasors had wrongfully deprived him of the "possession" and "services" of the children. The plaintiff-grandfather alleged that he had expended time and money to recover "possession" of the children and had borne the expenses of nursing them back to health. Plaintiff did not aver in his complaint that he was deprived of any actual services, or that the infanschildren were capable of rendering valuable services. Nevertheless, the court in Clark held, as to loss of "services," that the plaintiff had alleged facts sufficient to maintain the claim. Id. at paragraph four of the syllabus. In the text of the opinion, the court stated:
"At common law, a parent has an action for the seduction of his child, to whose services he is entitled. Analogous to the injury occasioned by seduction, is that of the abduction of a minor child from its father, or one having it in lawful charge. To recognize the doctrine that one standing in loco parentis, clothed with the lawful custody of an infant under five years old, has no legal capacity to sue or maintain an action for damages, either general or special, against the child thief, would be an unwarranted restriction upon the common-law rights of the citizen. It would be no less restrictive, to hold that no action can be maintained for such course, by reason of the fact that the infant, because of its tender years, is unable to render any valuable services. The action rests upon the right to service, and not upon actual services.
"* * *
"On demurrer, an averment that the wrongfully act complained of was done to deprive plaintiff of the services of the minors, without averring their ability to serve him, or the nature of the services of which he was deprived, is sufficient on the question of per quod servitium amisit.
"* * *
"The right to the custody of the infants, and their services as an incident thereto, is the gravamen of the action. Actual loss of services is not an essential allegation to enable plaint
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