782 F.

2d 438
1986 A.M.C. 1217, 54 USLW 2428

Maurice G. DeLOACH, a minor by his parents, Glen M. and

Alecia DeLOACH, Appellant
v.
COMPANHIA de NAVEGACAO LLOYD BRASILEIRO,
Appellee in 85-1200.
and
Maurice G. DeLOACH, a minor by his parents, Glen M. and
Alecia DeLOACH, Appellant
v.
MARKIM CRANE RENTAL, a DIVISION OF MARVIN
GROUP, INC.,
Appellee in 85-1517.
Nos. 85-1200, 85-1517.

United States Court of Appeals,

Third Circuit.
Argued Nov. 4, 1985.
Decided Jan. 31, 1986.

Louis Samuel Fine (argued), Sarah Hohenberger, Fine and Staud,

Philadelphia, Pa., for appellants.
Thomas Lane Anderson (argued), Robert C. Mickle, Jr., Rawle &
Henderson, Philadelphia, Pa., for appellee, Companhia de Navegacao
Lloyd Brasileiro.
James M. Marsh, Perry S. Bechtle, Samuel J. Pace, Jr., for appellee,
Markim Crane Rental, a div. of Marvin Group, Inc.; LaBrum and Doak,
Philadelphia, Pa., of counsel.
Before SEITZ, WEIS, and ROSENN, Circuit Judges.
OPINION OF THE COURT

WEIS, Circuit Judge.

In these cases the minor plaintiff seeks damages for the loss of companionship
and guidance of his father who was injured in the course of his employment as
a longshoreman. The district court denied the claims, finding them unsupported
by authoritative precedent in either maritime or common law. We will affirm.

The two separate suits filed by the minor plaintiff were dismissed under
Fed.R.Civ.P. 12(b)(6) for failure to state a claim. These appeals followed.

The plaintiff's father, Glen M. DeLoach, sustained severe injury to his shoulder
when he was struck by a crate that fell while being lifted by a crane owned and
leased by the defendant Markim Crane Rental. The accident occurred on
January 6, 1984 in the port of Philadelphia aboard a ship owned and operated
by the defendant, Companhia de Navegacao Lloyd Brasileiro.

Glen DeLoach and his wife filed suits against both defendants seeking damages
for his personal injuries and his spouse's loss of consortium. The minor
plaintiff, age 5, filed separate suits against each defendant. He asserted claims
for loss of parental consortium, care, love, companionship, playtime, guidance,
educational help, financial and nonfinancial support, services, aid and comfort
of his father, and mental distress occasioned by his father's disability.

In passing on the minor plaintiff's claim against the shipowner, the court found
that the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.
Secs. 901, et seq., provided no cause of action for loss of parental consortium.
The district judge then examined the general maritime law. Finding no
authoritative precedent in that area, he looked to the common law where the
overwhelming majority of states have rejected similar claims by children of
injured parents. Persuaded by the state courts' reasoning, the district court
concluded that the plaintiff's claim against the ship owner was not cognizable
in maritime law.

The child's claim for mental distress was denied as well. The minor plaintiff
had not witnessed the accident, nor was he near the scene; therefore, even under
state court decisions allowing recovery for emotional shock by a bystander, the
plaintiff's claim was not viable. The district court made similar rulings on both
counts of the suit against the crane owner.

I.

On appeal, plaintiff does not dispute the district court's conclusion that he
cannot recover against the ship owner under the Longshoremen's and Harbor
Workers' Act; therefore, the focus of our inquiry is on general maritime law.
We are urged to construe maritime law in a humanitarian fashion and follow the
growing minority of state courts which allow claims for deprivation of parental
consortium.

Plaintiff relies heavily on Sea Land-Services, Inc. v. Gaudet, 414 U.S. 573, 94
S.Ct. 806, 39 L.Ed.2d 9 (1974). In that case, the Court permitted the widow of
a longshoreman who had died from his injuries to maintain a maritime
wrongful death action and recover for loss of consortium, despite the fact that
during his lifetime the decedent had settled his own claim for personal injuries.

The Court further extended general maritime law in American Export Lines,
Inc. v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980) by
allowing the wife of an injured longshoreman to recover damages for the loss
of his society. The Court concluded that the deprivation suffered by a
longshoreman's spouse is compensable under general maritime law whether his
injuries are fatal or nonfatal, notwithstanding that such damages are precluded
by the Death on the High Seas Act and the Jones Act. In coming to that
decision, the Court relied on the holdings of the vast majority of states that a
spouse could recover for loss of society.

10

The Supreme Court has not addressed the rights asserted by the minor plaintiff
here, but in Madore v. Ingram Tank Ships, Inc., 732 F.2d 475, 479 (5th
Cir.1984), a court of appeals rejected recovery for loss of parental consortium
in a Jones Act case. Finding no authorization in the statute, the court relied on
the "overwhelming majority of the courts" that had denied such claims under
state tort law. However, a district court, influenced by a state statute authorizing
such recovery, did entertain children's suits for loss of parental services under
general maritime law in Kelly v. T.L. James Co., Inc., 603 F.Supp. 390
(W.D.La.1985).

11

In this case the district court recognized that where the statutory or general
maritime law does not provide clear precedent, courts may look to the
prevailing common law. American Export Lines, Inc. v. Alvez, 446 U.S. 274,
100 S.Ct. 1673, 64 L.Ed.2d 284 (1980). Until 1980 the state courts were
unanimous in denying societal claims by children, but in that year
Massachussetts abandoned its earlier position and allowed recovery in Ferriter
v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980). In the
next few years five other states followed that lead: Michigan, Iowa, Wisconsin,
Washington, and Vermont.1

12

The reasoning of those cases, however, has not convinced other courts that have
confronted the issue since 1980. Florida, New York, Oregon, Georgia, North
Dakota, Minnesota, Texas, and Illinois, among others,2 continue to deny
recovery, adhering to the rule previously announced by the courts in some
twenty states. The Restatement (Second) of Torts Sec. 707(a) as revised in
1969, also did not recognize liability for the loss suffered by children of
negligently injured parents. See Annot. 11 A.L.R. 4th 549 (1982).3

13

Although common law and statutory differences among the states have played
a role in the results reached in various cases, major reasons cited both for and
against recognition of the cause of action fall into frequently repeated patterns.

14

Courts favoring the new claim stress the similarity to spousal consortium, the
inconsistency of recognizing loss of services of a deceased parent under
wrongful death statutes but not permitting recovery when an injured parent
survives, and an assumed need to compensate for an acknowledged loss to the
children.

15

Those courts brush aside such countervailing considerations as increased

litigation and insurance costs, finding them speculative and insufficient to
prevent creation of a new cause of action. They also point out that courts
presently award monetary damages for such intangibles as emotional distress as
well as pain and suffering. Declining to await legislative action, the courts that
have adopted the new theory of recovery have relied on their duty, as they
perceive it, to mold the common law to meet society's needs.

16

The courts refusing to recognize the children's claims question the advisability
of equating parental society with a monetary value. In addition, they point to the
difficulties inherent in defining the limits of the new right (e.g., whether it
would apply only to minor children, whether it would extend to those standing
in loco parentis ), and note the probable increased insurance costs and added
burden on the courts. A number of the courts also believe that this issue,
essentially one of policy, should be resolved by the legislature.

17

There is room to question the desirability of a court's decision to create a new

cause of action without adequate demonstration of both need and cost.
Curiously, with respect to increased costs of administering the claims, both the
courts which dismiss that factor as insubstantial, as well as those which use it as
an argument against recognition of a new cause of action, do so without any
empirical data or statistical projections. In a concurring opinion, one judge has
acknowledged that legislatures possess superior resources with which to weigh

all potentially affected interests, Norwest v. Presbyterian Intercommunity

Hospital, 293 Or. 543, 652 P.2d 318, 333 (Tanzer, J. concurring ).
18

The majority in Norwest emphasized that in tort law, negligence generally

imposes an obligation to compensate only the person immediately injured, not
all those who predictably suffer loss as a consequence of the injury. Analogies
to the existing exceptions to that principle--spousal consortium, parents' actions
for their children's injuries, and statutory wrongful death damages--were
considered inadequate justification for further expansion to include a child's
consortium claim.

19

Other courts have also questioned the use of spousal consortium as support for
a child's right of action, pointing out the differing nature of the relationship.
Those judges also doubt the wisdom of earlier decisions attempting to promote
equality of treatment by extending the right of consortium to the wife from its
common law origins with the husband. Because the husband's right is a
"historical curiosity", it has been suggested that the better way to achieve
equality would be the abolition of consortium for both spouses. See Berger v.
Weber, 303 N.W.2d at 431 (Levin, J. dissenting ).

20

The arguments on both sides of the issue have merit, but unquestionably as the
common law now stands, the overwhelming majority of the states have
declined to allow recovery by children for the loss of companionship caused by
negligent injury to their parents. Plaintiff therefore derives no significant
support from that source of contribution to maritime law.

21

Our inquiry is not at an end, however. If the common law denies recovery, we
must decide whether adequate reason exists for an admiralty court to allow the
claim nevertheless. Igneri v. Cie. de Transports Oceaniques, 323 F.2d 257, 260
(2d Cir.1963), overruled on other grounds, American Export Lines, Inc. v.
Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980). After careful
consideration, we conclude that there is not sufficient justification for the
suggested expansion of maritime law.

22

Unlike the extension of consortium from husband to wife, which was

accomplished within fairly well established bounds, the creation of an
analogous right in children raises a host of easily foreseeable problems, and no
doubt many unexpected ones as well. For example, should an award be
confined to minor children, should it be made to children as a class or
individually, and is it appropriate only where the parent is severely injured. It
may well be that a longshoreman kept at home by injuries of a less serious

nature may be able to devote more time to the rearing of his children than if he
suffered no disability and was required to spend most of his day on the job.
23

Furthermore, if one accepts the premise that money may compensate for the
loss of the love and companionship of a parent--a most questionable concept
even in today's materialistic society 4 --it is not readily apparent why the line
should be drawn at the parent-child relationship. In many instances the child
may have received his rearing from grandparents, uncles and aunts, siblings, or
friends. The loss a child sustains through injury to any of those persons would
be no less severe than if they had been his natural parents. Denial of a cause of
action in those circumstances would be arbitrary. Once the nature of the
limitation is recognized as being arbitrary, it would appear that the better policy
is to draw the line at the spousal relationship, an area which is more readily
defined and confined.

24

To the extent that any recovery of the child is based on economic loss resulting
from his parent's inability to earn money, the award would duplicate damages
the injured parent himself is entitled to recover from the tortfeasor.

25

We are also concerned with maintaining logical limits on recovery by one who
suffers only indirect injury. The historical support that exists for spousal
consortium does not extend to other forms of indirect injury. Courts have
traditionally recognized that liability for negligence must have limits-arbitrarily selected but necessary, nevertheless. For example, an employee
deprived of his livelihood because of injury to his employer has no right to
recover from a tortfeasor for this tangible and calculable loss.5

26

Nor should we overlook the economic effects of the creation of this new cause
of action. Unlike those state courts which had no hesitancy in declining to await
legislative determination of the basic policy questions, we feel constrained by
Congress's demonstrated interest in regulating the liability of stevedores and
shipowners for injuries to longshoremen. The legislative history of the 1972
amendments to the Act addressing that concern indicates that they were the
result of compromise and concession between the competing interests.

27

Although the Supreme Court in Gaudet and Alvez apparently did not believe
that recognizing a right of action for spousal consortium would disturb the
balance that Congress had struck, we see a substantial distinction in the vague
and logically expansive right asserted here. In this context, too, the special
solicitude of the maritime law for "those men who under[take] to venture upon
hazardous unpredictable sea voyages," Moragne v. States Marine Lines, Inc.,

398 U.S. 375, 387, 90 S.Ct. 1772, 1780, 26 L.Ed.2d 339 (1970), should be
tempered by the congressional provision of remedies for injured longshoremen
who do not venture on such voyages.
28

Consequently, we conclude that maritime law does not grant children a right to
recover for the loss of society and companionship of their parent longshoreman
who has been injured by the negligence of a shipowner.

II.
29

Plaintiff also seeks damages for mental distress caused by "the constant
exposure to the crippling and deforming injury of his father." The plaintiff did
not witness the accident, nor was he in the area at the time it occurred.

30

Again, no federal statutory or decisional law provides for such a cause of

action.6 Some states allow recovery where the plaintiff either witnesses the
accident from outside the "zone of danger" or comes on the scene soon after it
and while the injured person is still present. Sinn v. Burd, 486 Pa. 146, 404
A.2d 672 (1979); Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295
(1978); Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968).
This, however, is as far as state courts have gone. See also Prosser and Keaton,
Sec. 54 at 359.

31

The plaintiff's claim for emotional injury does not come within even the most
expansive holdings of a few state courts. The common law provides no support
for the plaintiff's maritime claim, nor do we perceive any reason why the
maritime law should venture into these unchartered waters that state courts
have expressly declined to enter. Thus, we conclude that the trial court did not
err in dismissing the plaintiff's emotional distress count for failure to state a
claim.

32

As noted earlier, in addition to the suit alleging negligence against the owner of
the ship, plaintiff also filed a companion suit, consolidated on appeal, against
the owner of the crane involved in the accident. Although that claim does not
implicate the same congressional concern for the interests of stevedores and
ship owners, the complaint otherwise presents essentially the same issues as the
case against the defendant ship owner. Because we find no countervailing
considerations which would justify a different conclusion, we reach the same
result as to the plaintiff's claims against defendant Markim.

33

Accordingly, the judgment of the district court will be affirmed in each of the

consolidated cases.

See Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (Mich.1981); Weitl v.
Moes, 311 N.W.2d 259 (Iowa 1981), overruled in part, Audubon-Exira Ready
Mix, Inc. v. Illinois Central Gulf R.R. Co., 335 N.W.2d 148 (Iowa 1983) (claim
permitted statutorily, not under Weitl's common law theory); Theama v. City of
Kenosha, 117 Wis.2d 508, 344 N.W.2d 513 (Wis.1984); Ueland v. Reynolds
Metals Co., 103 Wash.2d 131, 691 P.2d 190 (Wash.1984); Hay v. Medical
Center Hospital of Vermont, 145 Vt. 533, 496 A.2d 939 (1985)

See Zorzos v. Rosen, 467 So.2d 305 (Fla.1985); DeAngelis v. Lutheran

Medical Center, 84 A.D.2d 17, 445 N.Y.S.2d 188 (1981), aff'd 58 N.Y.2d
1053, 462 N.Y.S.2d 626, 449 N.E.2d 406 (1983); Norwest v. Presbyterian
Intercommunity Hospital, 293 Or. 543, 652 P.2d 318 (1982); W.J. Bremer Co.,
Inc. v. Graham, 169 Ga.App. 115, 312 S.E.2d 806 (1983); Morgel v. Winger,
290 N.W.2d 266 (N.D.1980); Salin v. Kloempken, 322 N.W.2d 736
(Minn.1982); Bennight v. Western Auto Supply Co., 670 S.W.2d 373
(Tex.App.1984); Mueller v. Hellrung Constr. Co., 107 Ill.App.3d 337, 63
Ill.Dec. 140, 437 N.E.2d 789 (1982)

Scholarly comment, both before and after 1980, generally favored the extension
of liability in such circumstances. See, e.g., Love, Tortious Interference with
the Parent-Child Relationship: Loss of an Injured Person's Society and
Companionship, 51 Ind.L.J. 590 (1976); Note, The Child's Right to Sue for
Loss of a Parent's Love, Care, and Companionship Caused by Tortious Injury to
the Parent, 56 B.U.L.Rev. 722 (1976); Note, The Child's Claim for Loss of
Consortium Damages: A Logical and Sympathetic Appeal, 13 San.Diego
L.Rev. 231 (1975); Cooney & Conway, The Child's Right to Parental
Consortium, 14 J.Mar.L.Rev. 341 (1981). The foregoing is but a partial listing
of the extensive bibliography on the issue. See also W. Prosser & W. Page
Keeton, The Law Of Torts Sec. 125 at 935 (5th ed. 1984)

In denying recovery the California Supreme Court said "social policy must at
some point intervene to delimit liability." Borer v. American Airlines, Inc., 19
Cal.3d 441, 446, 138 Cal.Rptr. 302, 305, 563 P.2d 858, 861 (1977). "
[M]onetary compensation will not enable plaintiffs to regain the
companionship and guidance of a mother.... To say that plaintiffs have been
'compensated' for their loss is superficial; in reality they have suffered a loss for
which they can never be compensated; they have obtained, instead, a future
benefit essentially unrelated to that loss." Id. at 447, !38 Cal.Rptr. at 306, 563
P.2d at 862

This is hardly a fanciful concern. Members of a judge's staff, for example,

would lose their positions if the judge were severely injured and thereby forced
to retire. Similarly, employees of a small business might find themselves
without a job if an injury incapacitated the sole proprietor whose skill or
specialized knowledge was essential to the operation of the enterprise. It is
highly questionable that the employees' calculable loss would be any less than
that of the child whose parent may be unable to work or play, but may have
more time to offer guidance and companionship

In Sea-Land Services v. Gaudet, 414 U.S. at 585-86 n. 17, 94 S.Ct. at 815 n. 17,
the Supreme Court refused to permit recovery for mental anguish of the
surviving spouse in a wrongful death action