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Donald Harrington & a. v. Brooks Drugs, Inc. & a.

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, Supreme Court Building, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.state.nh.us/courts/supreme.htm THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Rockingham No. 2001-106 DONALD HARRINGTON & a. v. BROOKS DRUGS, INC. & a. Argued: March 6, 2002 Opinion Issued: July 23, 2002 Kalil & LaCount, of Rye (Earl L. Kalil, Jr. on the brief) and Robert G. Eaton, of Rye, by brief and orally, for the plaintiffs. Getman, Stacey, Tamposi, Schulthess & Steere, P.A., of Bedford (Douglas N. Steere on the brief and orally), for the defendants.

Nadeau, J. The plaintiffs, Robert E. Ricci, Jr. and Marie T. Ricci (in their capacities as assignees of the claims of Donald Harrington), and Linda Harrington, Ryan Harrington and Leigh Harrington, appeal decisions of the Superior Court (McHugh, J.) dismissing a negligence claim and loss of parental and spousal consortium claims, and dismissing Linda, Ryan and Leigh Harrington as named plaintiffs. We affirm in part and reverse in part. The relevant facts follow. On the morning of November 8, 1997, plaintiff Donald Harrington (Harrington) was driving home from Brooks Pharmacy in Manchester, where he had just finished his regular overnight shift. He fell asleep, causing his automobile to cross into oncoming traffic where it struck Robert Ricci's automobile, injuring both men. Ricci subsequently filed suit against Harrington, Brooks Drugs, Inc. and Maxi-Drug, Inc. The Brooks Pharmacy in question was owned by Brooks Drugs, Inc. and Maxi-Drug, Inc. (collectively, Brooks Drugs). Prior to trial both cases were settled. As part of the settlement agreement with Harrington, Ricci obtained an assignment of any damage claim Harrington might have against Brooks Drugs. The instant action, therefore, is brought by Ricci and his wife, Marie, acting in their capacities as assignees of Harrington. Joining the Riccis are Linda Harrington, Donald's wife, who is asserting a loss of consortium claim, and the Harringtons' children, Ryan and Leigh Harrington, who assert claims for the loss of companionship and society of their father. The superior court dismissed the parental consortium claims of Ryan and Leigh Harrington, finding no basis in New Hampshire law for such an action. To avoid "jury confusion," the superior court ordered that the caption of this case be amended so that the plaintiff be "identified solely as Donald Harrington." The court also held that a prior court determination that Harrington was injured outside the scope of his employment did not collaterally estop the defendants from now arguing the opposite. The court also dismissed Harrington's negligence claim, finding that because the "wrong doing alleged by Harrington ar[ose] out of and in the course of his employment," the Workers'

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Donald Harrington & a. v. Brooks Drugs, Inc. & a.

Compensation Law barred that action. See RSA 281-A:8 (1999 & Supp. 2001). Finally, Linda Harrington's loss of consortium claim was dismissed as well. On appeal, the plaintiffs argue that: 1) we should recognize a loss of parental consortium claim brought by a dependent child; 2) their negligence claims are not barred by the Workers' Compensation Law as Harrington's injuries did not arise out of and in the course of his employment; 3) a previous trial court ruling that Harrington was acting outside the scope of his employment at the time of the accident collaterally estops the defendants from claiming otherwise; and 4) the trial court erred when it removed Linda, Leigh and Ryan Harrington as named plaintiffs. First, the plaintiffs argue that the interests of a dependent child in being protected from the loss of companionship of an injured parent is at least as important as a spousal claim and, therefore, worthy of recognition. Raising an issue of first impression for this court, the plaintiffs invite us to create a cause of action for a dependent child's loss of society of a parent injured as a result of negligent conduct. We decline the invitation. In Siciliano v. Capitol City Shows, Inc., 124 N.H. 719 (1984), we were asked to recognize a cause of action for the parental loss of society of a minor child who had been injured or killed. While not directly on point, the analysis utilized in Siciliano is useful in deciding the present question. Finding no support in the common law for the expansion of liability, we turned to public policy considerations, with reference to judicial and statutory precedent, to determine whether parents can recover for the loss of society of their children. See id. at 725. The probability of increased litigation and multiple claims, which will hinder settlements and increase expenses, is as much a concern today as it was when Siciliano was decided. See id. In addition, we remain concerned that the "social burden of providing damages for this loss will ultimately be borne by the public through increased insurance premiums or in the enhanced danger that accrues from the greater number of people who will choose to go without insurance." Id. (quotations omitted). Further, we can find no statutory support for a parental consortium claim where a parent has been injured. We take note that the legislature amended RSA 556:12, awarding damages to the minor children of decedents for their loss of familial relationship. See RSA 556:12, III (Supp. 2001). If the legislature intended to extend such a claim to the children of injured parents, we are hard pressed to imagine a more inviting opportunity to do so. Finally, our decision is supported by the Restatement (Second) of Torts, which provides: "One who by reason of his tortious conduct is liable to a parent for illness or other bodily harm is not liable to a minor child for resulting loss of parental support and care." Restatement (Second) of Torts

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