Joette Katz Authors Law.com Article Entitled "Connecticut High Court's Current Docket Brings Memories From the Bench"

Every once in a while, a case is listed on the Connecticut Supreme Court docket that reminds me of some significant cases I helped decide while serving as an Associate Justice. When this happens, I find myself going back to the briefs submitted, the oral arguments we heard, the conferences that followed, the drafts that circulated, the opinions that were published, and the cases subsequently decided that tweak the reasoning, explain the imprecise verbiage and sometimes even reverse the holding. In the fall, the court will entertain a certified question that has given me this opportunity. Rather than issue a spoiler alert, I’d rather keep you in suspense.

I begin with Mendillo v. Board of Education, a case in which a majority of the Supreme Court declined to recognize a derivative cause of action for loss of parental consortium by a minor child. Some of the jurisdictions that the Mendillo Court followed had rejected the loss of parental consortium cause of action on the basis that the issue should be addressed, if at all, by the legislature. There were also public policy considerations that the majority concluded did not support recognition of this cause of action, specifically, the costs of recognizing it — increased insurance premiums, increased litigation expenses and double recovery of damages by the child.

Then in Campos v. Coleman, no longer deterred by the separation of powers argument, a majority of the Supreme Court overruled Mendillo, and concluded that, because the cause of action for loss of consortium had been initially created and developed by courts, the court was well equipped to make changes in the common law that conform to the realities of modern times. Similarly, the Campos court largely ignored other jurisdictions that had denied recovery for loss of parental consortium based on their concerns that damages are too uncertain, or that the child’s injury is of a non-compensatory nature. After all, as the Campos court recognized, juries routinely assess the appropriate award in cases in which damages such as recovery of pain and suffering are just as intangible as those of the loss of a parent’s consortium.

Furthermore, while money is indeed a poor substitute for the loss of a parent’s companionship, it is the only workable solution that a civilized society has. The need to compensate children for their loss, including the expenses arising out of psychological injuries the child has experienced from the loss of the society and companionship of the parent, easily outweighs litigation costs or any increase in the costs of insurance. In short, undeterred by what other jurisdictions had done or stare decisis, the Campos court overruled Mendillo based on what it determined was in the best interests of justice.

I was gratified that in Campos, Justice Palmer eloquently embraced the position adopted by Justice Berdon, author of the Mendillo dissent that I had been proud to join. Recognizing the uniqueness of the parent-child relationship and our recognition of children’s legal rights, Campos followed the analysis of those courts that had adopted the loss of parental consortium cause of action, finding it more persuasive than the analysis of those courts that had rejected it.

It was also nice to see the Campos court embrace some of the discussion I provided in Pamela B. v. Ment, wherein the court acknowledged that the “right to family integrity … encompasses the reciprocal rights of both parent and children … the interest of the parents in the companionship, care, custody and management of his or her children;… and of the children in not being dislocated from the emotional attachments that derive from the intimacy of daily association, with the parent ….” As Campos appreciated, “the parent- child relationship … is the earliest and most hallowed of the ties that bind humanity.”

And although Roth v. Weston was superseded by statute, its underpinnings remain as solid today as when I wrote that decision. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651 (1972) (“The rights to . . . raise one’s children have been deemed essential, basic civil rights of man, and rights far more precious than property rights. It is cardinal that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder”). And, as recognized in In re Juvenile, that parent-child relationship is the only one of these relationships that gives rise to legally enforceable rights.

Can you guess where I’m going? The question that is raised in a case that will soon be argued before the Connecticut Supreme Court is the flip side of the same coin: When it is the minor child who suffers a severe physical injury, will that same parent child connection be harmed, and should it necessarily support a claim for filial consortium? The argument is that that cause of action would give effect to the deep-rooted rights and obligations inherent in the parent-child relationship.

Connecticut common law not only acknowledges that bond as one worthy of protection through claims for loss of consortium, but also validates and gives legal effect to parental suffering experienced in the context of injuries sustained by their minor children. I am again reminded of a decision I joined wherein Justice Berdon, writing for the court in Clohessy v. Bachelor, recognized bystander emotional distress to a mother who had witnessed her son’s fatal injury by a motor vehicle was compensable because the relationship between mother and child was so strong that it was a source of direct and emotional injury.

After wrestling with how the application of rules of foreseeability could lead to unlimited liability, and the “ample policy concerns for setting limits or administrative boundaries establishing the permissible instances of recovery”, the court set boundaries: ”(1) he or she is closely related to the injury victim, such as the parent or the sibling of the victim; (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim’s condition or location; (3) the injury of the victim must be substantial, resulting in his or her death or serious physical injury; and (4) the bystander’s emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response.” Clohessy demonstrates that the court is quite capable of providing meaningful boundaries when recognizing a new cause of action.

And more recently, the Supreme Court in Escobar-Santana v. State, (after my time) recognized the “strong trend of persuasive authority that treats a physical injury to the child during the birthing process [as], in effect, a bodily injury to the mother as well.” Relying on Hopson v. St. Mary’s Hospital, (wherein the court held that a married person whose spouse has been injured by the negligence of a third party has a cause of action for loss of consortium), the Escobar-Santana court recognized that the inevitable “grief, fright, anxiety, apprehension,” and other emotional trauma experienced by the parent of a severely injured baby or minor child are just as “genuine and . . . compensable under the concept of pain and suffering” as spousal and parental consortium claims.

Obviously, there are briefs on both sides of the issue by some of the best and brightest appellate scholars. So, while I have no role in deciding the case soon to be before our Supreme Court, or in litigating it for that matter, the case has once again given me an opportunity to journey down memory lane, to revisit some great cases, remember some interesting debates amongst colleagues and arguments by counsel. As issues arise and law evolves to meet circumstances, our Supreme Court will once again be given a chance to weigh in. Easy for me to be on the sidelines and pontificate from afar without having to pull the trigger, and account for every sentence, every citation, and every consequence.

Copyright 2024. ALM Global, LLC. All Rights Reserved. Originally published by Connecticut Law Tribune and Law.com [https://www.law.com/ctlawtribune/2024/09/04/connecticut-high-courts-current-docket-brings-memories-from-the-bench/], reprinted by permission.