Town Held Not Liable For Parental Loss Of Consortium Claims: Spencer v. Town of Arlington, Middlesex Super. Ct., C.A. No. 09-00502 (September 3, 2009)
On September 3, 2009, the Middlesex Superior Court (Smith, J.) handed down the Commonwealth’s first ruling that a parent cannot recover in tort against a municipality for loss of consortium. The case was successfully defended by Pierce, Davis & Perritano, LLP. Specifically, the Superior Court judge ruled that the statutory remedy for parental loss of consortium – M.G.L. c. 231, § 85X – does not allow for recovery against a city or town. Because the parents of minor plaintiffs often bring parental loss of consortium claims in conjunction with a minor’s negligence claim, and because each parent is regarded as a separate plaintiff for purposes of applying the $100,000 statutory cap on liability, this decision may prove instrumental in limiting municipal exposure for injuries to minors.
In Spencer v. Town of Arlington, the minor plaintiff, Stephen J. Spencer, Jr., allegedly sustained serious injuries while ice skating at the Town of Arlington’s Veterans’ Memorial Skating Rink. Stephen alleged that the negligent supervision of the Town’s rink staff caused his injuries. In addition to the minor’s negligence claim, Stephen’s parents each brought a claim of parental loss of consortium. PD&P filed a motion to dismiss all claims on the primary grounds that the Town was immune under M.G.L. c. 258, § 10(j). In opposition, plaintiffs conceded the application of Section 10(j), but nonetheless sought protection under the exception in Section 10(j)(1), claiming the rink staff made explicit and specific assurances of safety to them. Judge Smith disagreed and granted the Rule 12 motion. In a footnote to his written decision, Judge Smith also found that, to the extent Stephen’s parents sought recovery from the Town under M.G.L. c. 231, § 85X, such claims likewise failed to state a claim upon which relief could be granted.
Parental loss of consortium claims did not exist under the common law. Norman v. Mass. Bay Transp. Auth., 403 Mass. 303, 305 (1988). Rather, they are wholly a creature of statute. In fact, the adoption of M.G.L. c. 231, § 85X in 1989 was a legislative reaction to the SJC’s decision in Norman. In relevant part, Section 85X states: “[t]he parents of a minor child . . . shall have a cause of action for loss of consortium of the child who has been seriously injured against any person who is legally responsible for causing such injury.” M.G.L. c. 231, § 85X (emphasis added). By its terms, Section 85X is only available against a “person.” The definitions in M.G.L. c. 4, § 7 apply to all Massachusetts statutes “unless a contrary intention clearly applies.” In Chapter 4, Section 7, “person” is defined to include only “corporations, societies, associations and partnerships.” Nothing in Section 85X indicates that the Legislature intended the term “person” to apply to cities, towns or other governmental entities. Indeed, “person,” as used in other remedies and statutes, has been held not to include municipalities. See, e.g., Howcroft v. City of Peabody, 51 Mass.App.Ct. 573, 591-592 (2001) (municipality held not a “person” subject to the Massachusetts Civil Rights Act). In the absence of any indication to the contrary, Judge Smith agreed that a municipality is not a “person” within the meaning of Section 85X.
In light of Judge Smith’s willingness to exempt a municipality from the scope of the parental loss of consortium statute, municipalities should be careful to challenge such claims whenever they accompany the personal injury claim of a minor.