Legal Memorandum: Damages for Loss of Parental Care

Issue: In courts nationwide, what proof is generally required to establish damages in a claim for loss of parental care, comfort and society?

The majority of the courts finding a basis for the award of damages for loss of a parent’s care, comfort and society do not address proof of the child’s damages.  Commonly, they charge the factfinder with calculating damages for a child’s loss of parental care, comfort and society in the same way that damages are calculated for actions involving spousal consortium, wrongful death consortium, emotional distress, pain and suffering, or loss of enjoyment of life.

The most extensive treatment of the issue of proof of damages among the cases cited above is in Villareal v. Dep’t of Transp., 160 Ariz. 474, 482, 477, 774 P.2d 213, 220-21 (1989), which sets forth the following elements that a court should consider:

·               The severity of the injury to the parent and its actual effect upon the parent-child relationship,

·               The child’s age,

·               The nature of the child’s relationship with the parent,

·               The child’s emotional and physical characteristics, and

·               Whether other consortium-giving relationships are available to the child.

See also Reagan v. Vaughn, 804 S.W.2d 463, 467 (Tex. 1990).

Without further analysis regarding these elements, the Reagan court reinstated a damages award of $200,000 to the child in that case for the loss of her parent’s care, comfort and society. Id. at 467.  In Eyssi v. City of Lawrence, 416 Mass 194, 197, 618 N.E.2d 1358, 1360 […]