HONOLULU (Legal Newsline) - Adding a new path for collecting damages in personal injury lawsuits, the Hawaii Supreme Court ruled children, including adult children, can sue for the loss of consortium of a parent who is severely injured but still alive.
The court overruled a 1957 decision based on the common-law principle that children can only sue over the loss of a parent who dies. Calling that earlier decision “outmoded and illogical,” the state high court added permanent injuries to the list of claims children can make.
The decision came in the case of a man with a lengthy history of violence who was left in a permanent vegetative state after being attacked by his roommates in a prison hospital.
In its 1957 decision Halberg v. Young, the Hawaii Supreme Court denied damages for children whose parents were injured. In 1989, however, the court ruled in Masaki v. General Motors that parents could recover for the injury of adult children and mused in a footnote that the holding was “merely the reciprocal of a child’s claim for the lost consortium,” although the question wasn’t before it.
The U.S. District Court in Hawaii, meanwhile, in 1992 “implicitly overruled” Halberg, predicting the Hawaii Supreme Court would do so when it had the chance. The Hawaii Supreme Court did just that, in a a June 4 opinion by Justice Sabrina McKenna.
“This court does not lightly overrule precedent,” she wrote. But numerous states have extended loss-of-consortium damages to children whose parents are permanently injured, the court concluded.
“We now expressly add our state to those permitting parental consortium claims and hold that loss of parental consortium is cognizable for a child, whether a minor or an adult, when a parent is severely injured,” she added.
Hoku Gek, the adult child of Curtis Panoke, sued GEO Care and the State of Hawaii over injuries that left Panoke in a permanent vegetative state. Panoke, who had a long history of violent assaults, was injured when he was attacked by his roommates while he slept at Columbia Regional Care Center, a mental health facility for prisoners found not competent to stand trial.
GEO Care moved to dismiss Gek’s case, citing the bar against children suing for loss of consortium caused by the injury to a parent. The trial judge refused, saying they would “go out on a limb” by predicting, as did the federal court in Hawaii, that the state Supreme Court would overrule Halberg.
The defendants appealed and the Hawaii Supreme Court agreed to decide the question.
GEO Care argued the legislature, not the courts, should decide whether to establish a new cause of action. The defendants also cited the reasoning in Halberg, which held injured parents could recover damages for their own injuries as well as the cost of caring for their children. Only if the parent was killed could children sue for those costs, the court ruled then.
The Hawaii Supreme Court opened the door to children’s damages 30 years later, however, when it ruled parents could recover for the loss of consortium with their children, holding there was “little distinction between death and permanent injury.” The court went further, extending the right to sue to adult children.