William S. Bailey, Flawed Justice: Limitation of Parental Remedies for the Loss of Consortium of Adult Children, 27 Seattle U. L. Rev. 941 (2004), https://digitalcommons.law.uw.edu/faculty-articles/223
Flawed Justice: Limitation of Parental Remedies for the Loss of Consortium of Adult Children
Seattle University Law Review
children and parents, loss of consortium, wrongful death
This article presents the inherent contradiction between a parent-child relationship that has steadily evolved from the early 20th Century to the present and the multitude of court decisions on damages that remain studiously ignorant of this shift.
Part I of the article will set forth the common law origins of restrictions on recovery for wrongful death within the context of a shifting view of children from economic units to objects of adoration. Part II will examine the devastating impact that the loss of an adult child has on parents both from their perspectives and from now existing research.
In the context of this body of evidence, and society's changed view of children, Part III will examine the inadequate development of wrongful death law since its common law origins. While a few forward thinking state supreme courts have taken a realistic look at this archaic and wrongful denial of loss of consortium damages to parents for their adult children, these cases are beacons of rationality in a stare decisis wasteland. Only these few courts have seen all too clearly that the emperor of Baker v. Bolton has no clothes.
Ultimately, the denial of any common law remedy for the parental loss of consortium of adult children is based on neither a correct reading of the law, nor on sound social policy. The unthinking embrace of Baker v. Bolton must, at long last, yield to the realities of the modern parent-child relationship in fashioning fair and just remedies for loss of consortium.