Consistent with changing societal norms and family economics, Idaho has seen a big shift in the types of damages available in cases involving non-fatal injuries to a minor child.

Loss of Consortium Damages Are Only Available in the Marital Context

Because consortium derives from Latin for partnership (i.e., consort), “[g]enerally, only a spouse may sue for loss of consortium”.[i] The same holds true under Idaho common law: an action for loss of consortium is “predicated upon the existence of a marriage.”[ii] In fact, as recently as 2014, the Idaho Supreme Court expressly explained that Idaho “only recognize[s] claims for loss of consortium when brought by a spouse.”[iii] The types of compensable injuries are further indicative that consortium is unavailable for injury to a parent-child relationship: “loss of services, society, companionship, sexual relations, etc. regarding the relationship between a husband and wife”.[iv]

The marital context limitation is rooted in the discriminatory, sexist, and antiquated notion that a wife is the husband’s property; thus, he is entitled to compensation for any loss of his property.[v] Society may have evolved past the notion of wives as property, but the Idaho Supreme Court refuses to expand the scope of consortium claims beyond the marital context.[vi]

Damages for Injury to the Parent-Child Relationship Is Unavailable Under Idaho’s Current Statutory Scheme

Parents used to be able to seek damages for their own loss of a parent-child relationship caused by injury to their child. That ended forty years ago. Now, the child’s parents may maintain an action only on the child’s behalf.[vii] In cases involving the of death of a minor child, however, the heirs may seek “such damages … as under all the circumstance of the case as may be just”.[viii] When read together, it is clear that the Legislature intended the full panoply of “just” damages to be available only in a wrongful death setting, not in injury cases.[ix]

Under Idaho’s case law, “just” damages “include contributions which the parents might reasonably have expected to receive from the earnings of such minor child until his majority, for which there is no precise measure, as well as the loss of protection, comfort, society and companionship.”[x] Other damages that fall within the definition of “just” damages include elements such as the destruction of a close relationship and loss of advice, guidance, intellectual culture, moral training, love, affection, and assistance.[xi] “Just” damages under Section 5-311 does not include grief, anguish, worry, or mental distress suffered by the parents.[xii]

Were “just” damages ever available in injury to a child cases? Yes, but only until 1984. In 1881, the Territory of Idaho’s statutory scheme permitted the father—or, if he was deceased or had deserted the family, the mother—of an injured or deceased child to “maintain an action” on the minor child’s behalf under Section 191 (now Section 5-310). This Section enabled the parent to seek recovery for the child’s own damages.[xiii] But the parent was also able to seek recovery for “just” damages, i.e., for the parent’s damages. Section 192 (now Section 5-311) provided that, “[i]n every action under this and the preceding section, such damages may be given as under all the circumstances of the case may be just”.[xiv]

In other words, Section 5-310 had one purpose—to give the parents the right to sue on the minor child’s behalf for damages the minor child suffered—and Section 5-311 had a different purpose—to provide a right to recover damages “as may be just” that the parents suffered:[xv]

Except for granting equal right to both parents to maintain an action under Section 5-310 in 1915, and clarifying the circumstances under which parents may maintain an action under Section 5-310 in 1972,[xvi] this area of law remained largely unchanged from 1881 through the 1972 amendments.[xvii]

What Changed in 1984?

The Legislature undertook a major overhaul of this area of law in 1984, and SB 1341 included four significant changes. First, Section 5-311 was repealed and replaced by an entirely new Section 5-311.[xviii] This resulted in severing the prior link between the right to seek “just” damages under Section 5-311 and a parent’s right to maintain an action under Section 5-310. Second, causes of action for injury to a minor child and death of a minor child, which had previously both fallen under Section 5-310, were separated into Sections 5-310 and 5-311, respectively.[xix] As a result, parents must use Section 5-310 to maintain an action for injury, and heirs must use Section 5-311 to maintain an action for wrongful death.

Third, the new Section 5-311 omitted the repealed version’s basis for parents’ recovery for their own “just” damages.[xx] Hence, the new Section 5-311 did not reestablish the severed link to Section 5-310, under which parents previously could seek “just” damages. And fourth, Section 5-310 retained parents’ right to maintain an action on the injured child’s behalf but did not provide a new basis for the parents to recover for their own “just” damages.[xxi]

By purposely omitting “and the preceding section” from the final sentence of the new Section 5-311(1), the Legislature intended to change the law to preclude parents from recovering “just” damages, i.e., damages relating to loss of the parent-child relationship, comfort, protection, society, etc., in injury cases. [xxii] Had the Legislature intended for “just” damages to remain available under Section 5-310, notwithstanding removing “and the preceding section” from Section 5-311, it could have easily amended Section 5-310 itself to allow for “just” damages.

It did not.

Instead, it clarified that only injury cases fall under Section 5-310, while all wrongful death actions fall under Section 5-311, where “just” damages are still available. The net result of these changes was thus an abrogation of more than a century’s statutory provision permitting parents to recover “just” damages. Instead, “just” damages now only apply to wrongful death cases.[CC1] 

Why Did the Legislature Make “Just” Damages Unavailable in Injury Cases?

As the history of Sections 5-310 and 5-311 demonstrates, the Legislature has, slowly but surely, been amending the law to keep up with our changing society.

Economic factors

In 1880, about thirty-five percent of children did not live past their fifth birthday.[xxiii] Thus, a child surviving that grim statistic represented a significant parental investment of protection, comfort, advice, guidance, intellectual culture, moral training, love, affection, and assistance to the child, with the expectation that the child would soon be providing the parents with labor in return. As one researcher noted, in the 18th century, children as young as five years old started helping with farm work and other household chores as and were often sent to work for another household to supplement the family’s income.[xxiv] At the turn of that century, “no less than 18 percent of all children ages 10‒15 worked.”[xxv]

Enabling parents to receive “just” damages for injury or death to a child as compensation for a significant investment that had not panned out made sense.

Societal factors

 In 1886, Idaho women gained the right to vote[xxvi] and, subsequently, some additional measure of equality. The Legislature’s 1915 amendment of Section 5-310 thus abrogated the earlier deference to the father as the property owner of the wife and placed equal value on both parents.[xxvii] By 1972, minor children were no longer expected to work to support their parents or to provide financial support for the parents in old age. Thus, the 1972 amendment recognized that a spouse or child of the injured or deceased minor had a greater claim to recovery than the minor child’s parents. Thus, prevailing societal norms concerning parental reliance on the future employment of children had changed. This is further reflected in the enactment of the Social Security Act of 1972, ensuring that social security benefit amounts would be automatically updated going forward to reflect cost of living rises, and that recipients’ financial needs would not have to be met by their children.[xxviii]

Family values

The 1984 amendment acknowledged a cornerstone of current American family values; that a parents’ guidance, advice, training, love, affection, and protection are given unconditionally without expectation that the children will repay the same. Further, that a parents’ past love, affection, training, etc. of and for their children has not been wasted just because their child is injured; an injured child is still cherished and loved. The ‘value’ (if one must call it that) of a child to his or her parent is not damaged or degraded by illness or injury.

How Do the 1984 Amendments Impact Today’s Parents’ Right to “Just” Damages?

The 1984 amendments preclude parents of an injured child from recovering “just” damages.[xxix] Rather, Section 5-310 only permits parents to maintain an action on their injured minor child’s behalf, a statutory purpose that has remained unchanged since 1881. Abrogating “just” damages for an injured child was a conscious choice by the Legislature to correspond with our modern societal norms, economy, and values. This abrogation thus also abrogated all case law preexisting 1984 that applied Section 5-311 to award “just” damages in injury cases.

That parents’ personal “just” damages are now only available in wrongful death cases is consistent with the long-standing canon that the heirs’ damages are derivative of the death of the decedent.[xxx] For 120 years, the Idaho Supreme Court has uniformly held that the wrongful death statute should be interpreted as if it contained the qualification that heirs can “maintain an action for wrongful death only ‘[w]henever the wrongful act would have entitled the person injured to maintain an action if death had not ensured.’”[xxxi] Thus, in wrongful death cases, the decedent’s damages are replaced by the heirs’ damages upon the decedent’s death.

In injury cases, the child is entitled to his or her own damages under Section 5-310. Thus, derivative action for parental damages is not only unnecessary to compensate for the loss but would also result in an impermissible double recovery. While the Idaho Supreme Court has not directly addressed the danger of double recovery in connection with Section 5-310, the Supreme Court of Illinois explained why it refuses to award the equivalent to “just” damages this way:

The chief distinction between the claim for loss of society in a wrongful death action and its assertion here is that the nonfatally injured victim retains his own cause of action against the tortfeasor. Thus, there is no danger that the injury caused by the tortfeasor will go uncompensated, or that similar conduct in the future will be undeterred. In contrast, an action under the Wrongful Death Act affords the sole remedy for the surviving family members.[xxxii]

Public Policy Disfavors “Just” Damages in Cases of Non-fatal Injury to a Minor Child

In addition, the Illinois Supreme Court held a lengthy discussion detailing the risk of duplicate recovery and the undeniable difficulty in assessing “just” damages in cases involving non-fatal injuries to a child:

First, permitting both the injured victim and his family members to pursue their own actions would invite duplicate recoveries. In light of the intangible nature of the loss, a trier of fact would find it difficult to distinguish between the child’s claim, involving pain and suffering, and the legally distinct but factually similar claim by the parents for loss of the child’s society and companionship.[xxxiii]

But even more concerning to the Illinois Supreme Court was that the parents, in open court, would have to engage in the “unseemly spectacle” of disparaging their child’s value or degree of their affection for them while, at the same time, the defendant “could attempt to show, in an appropriate case, the strengthened family bonds and greater appreciation for life arising from the child’s injury.”[xxxiv] Because the jury would have to evaluate and assign a monetary figure to the reduced value of the child, the Court explained, it would be in the parents’ interest to minimize the value of their living child—a sharp contrast to a wrongful death claim, in which the opposite is true, and in which damages are presumed.[xxxv]

In other words, to prove their “just” damages, parents would need to disparage their own child by testifying in open court that their child is of limited value and benefit to them and remains an uncherished and unwanted burden; that the love, affection, care, and comfort  they have provided the child has been a waste; and that the guidance, advice, and protection the parents have given the child is for naught.[xxxvi] Such spectacle “cannot be countenanced.”[xxxvii]

Only the Injured Child Is Now Entitled to Non-economic Damages

In sum, in 1984, the Idaho Legislature foreclosed parental injured child claims for loss of society, companionship, love, affection, care, comfort, guidance, advice, and protection, which all fall under “just” damages available only in wrongful death cases. Absent that former statutory basis, there is now no legal basis allowing parents to seek recovery for damages to the parent-child relationship.[xxxviii]

After graduating law school, Norway-native Anita H. S. Hurlburt clerked at the Hawaiʻi Intermediate Court of Appeals before leaving her world-traveling days behind to settle permanently in Idaho. She is with Quance McColl, PLLC, where she practices professional liability defense, with a primary focus on medical malpractice.

[i] Consortium, Garner’s Dictionary of Legal Usage (3d ed. 2011).

[ii] Conner v. Hodges, 157 Idaho 19, 27, 333 P.3d 130, 138 (2014) (internal quotation marks omitted) (quoting Zaleha v. Rosholt, Robertson & Tucker, Chtd., 131 Idaho 254, 256, 953 P.2d 1363, 1365 (1998)).

[iii] 157 Idaho at 27, 333 P.3d at 138 (emphases added) (citing Phillips v. Erhart, 151 Idaho 100, 109, 254 P.3d 1, 10 (2011) (discussing loss of consortium as providing for loss of comfort, companionship, aid, care, and conjugal affection between spouses).

[iv] Id. (internal quotation marks omitted) (quoting Vannoy v. Uniroyal Tire Co., 111 Idaho 536, 545, 726 P.2d 648, 657 (1985)); see 151 Idaho at 109, 254 P.3d at 10 (discussing loss of consortium as providing for loss of comfort, companionship, aid, care, and conjugal affection between spouses); Garriott v. W. Med. Assocs., PLLC, No. 2:16-CV-00081-CWD, 2017 WL 3015872, at *3 n.2 (D. Idaho July 14, 2017) (Mem.) (Quoting Loss of Consortium, Black’s Law Dictionary (10th ed. 2014)).

[v] Summerfield v. Pringle, 65 Idaho 300, 144 P.2d 214, 220 (1943) (“[Consortium] is a property right growing out of the marriage relation, for loss of which recovery may be had, and includes the exclusive right to the services of the spouse (which contemplates not so much services or reward earned as assistance and helpfulness in the relations of conjugal life according to their situation) and also the exclusive right to the society, companionship, and conjugal affection towards each other.”) (Emphasis added).

[vi] 157 Idaho 28, 333 P.3d at 139 (“Only the Legislature responsible to the electorate should have the power to make such a radical change in the fabric of society.”) (Internal quotation marks omitted) (quoting Gillespie–Linton v. Miles, 58 Md.App. 484, 473 A.2d 947, 953 (1984)).

[vii] I.C. § 5-310 (emphases added). This Section has remained unchanged since the 1984 amendment.

[viii] I.C. § 5-311 (emphases added).

[ix] See Est. of Stahl v. Idaho State Tax Comm’n, 162 Idaho 558, 562, 401 P.3d 136, 140 (2017)(“Statutory interpretation begins with the literal language of the statute. Provisions should not be read in isolation but must be interpreted in the context of the entire document. The statute should be considered as a whole, and words should be given their plain, usual, and ordinary meanings.”).

[x] Hayward v. Yost, 72 Idaho 415, 425, 242 P.2d 971, 977 (1952) (internal citations omitted) (first citing Richmond v. Moore, 103 Cal.App. 173, 284 P. 681 (Ca. Ct. App. 1930); then citing Checketts v. Bowman, 70 Idaho 463, 220 P.2d 682 (1950)).

[xi] See Holt v. Spokane & P. Ry. Co., 3 Idaho 703, 35 P. 39, 42 (1893); Anderson v. Great N. Ry. Co., 15 Idaho 513, 99 P. 91, 92 (1908); Wyland v. Twin Falls Canal Co., 48 Idaho 789, 285 P. 676, 678 (1930); Hepp v. Ader, 64 Idaho 240, 130 P.2d 859, 862 (1942).

[xii] 72 Idaho at 427, 242 P.2d at 978 (citation omitted).

[xiii] 1881 Idaho Sess. Laws 36.

[xiv] Id. (emphasis added).

[xv] Id.

[xvi] The amendment clarified that parents may only maintain an action under Section 5-310 (1) if the injured or deceased child was unmarried or (2) if the child was married but the spouse died as a result of the same occurrence and the couple had no children. 1972 Idaho Session Laws 445.

[xvii] 1972 Idaho Sess. Laws 445; 1915 Idaho Sess. Laws 266.

[xviii] 1984 Idaho Sess. Laws 385 (“Section 2. That Section 5-311, Idaho Code, be, and the same is hereby repealed.”).

[xix] Cf. 1984 Idaho Sess. Laws 385-86 with 1972 Sess. Laws 444-45.

[xx] Cf. 1972 Sess. Laws 445 (“In every action under this [Section 5-311] and the preceding section, such damages may be given as under all the circumstances of the case may be just.”) (Emphasis added) with 1984 Sess. Laws 385-86 (“In every action under this [Section 5-311], such damages may be given as under all the circumstances of the case as may be just.”).

[xxi] 1984 Sess. Laws 385.

[xxii] City of Idaho Falls v. H-K Contractors, Inc., 163 Idaho 579, 584, 416 P.3d 951 (2018) (citing State v. Long, 91 Idaho 436, 441, 423 P.2d 858 (1967)); Beehler v. Fremont Cty., 145 Idaho 656, 659, 182 P.3d 713 (Ct. App. 2008); Leonard Const. Co. v. State ex rel. State Tax Comm’n, 96 Idaho 893, 896, 539 P.2d 246 (1975).

[xxiii] Child Mortality Rate (Under Five Years Old) in the United States, from 1800 to 2020, Statista, available at https://www.statista.com/statistics/1041693/united-states-all-time-child-mortality-rate/ (last accessed Aug. 18, 2024).

[xxiv] History of Child Labor in the United States—Part 1: Little Children Working, U.S. Bureau of Labor Statistics (January 2017), available at https://www.bls.gov/opub/mlr/2017/article/history-of-child-labor-in-the-united-states-part-1.htm (last accessed Aug. 18, 2024).

[xxv] Id.

[xxvi] S.J.R. 2, ratified Nov. 3, 1886 (amending Art. VI, Section 2 of the Constitution of the State of Idaho and providing (some) women the right to vote).

[xxvii] 1915 Idaho Sess. Laws 266 (“parents may maintain an action for the injury or death of a minor child”) (emphasis added).

[xxviii] Robert M. Ball, “Social Security Amendments of 1972: Summary and Legislative History,” Bulletin, March 1972, https://www.ssa.gov/policy/docs/ssb/v36n3/v36n3p3.pdf (last accessed Aug. 18, 2024).

[xxix] I.C. § 5-310.

[xxx] Woodburn v. Manco, 137 Idaho 502, 506, 50 P.3d 997, 1001 (2002).

[xxxi] Clark v. Foster, 87 Idaho 134, 144, 391 P.2d 853, 859 (1964) (citations to United States and Idaho Supreme Courts case law spanning sixty years omitted).

[xxxii] Dralle v. Ruder, 124 Ill. 2d 61, 69, 529 N.E.2d 209, 212 (1988); see Carrillo v. Boise Tire Co., 152 Idaho 741, 753, 274 P.3d 1256, 1268 (2012) (explaining that I.C. § 6-1606 requires collateral source payments to be deducted from damage awards to prevent double recovery); Am. Foreign Ins. Co. v. Reichert, 140 Idaho 394, 400, 94 P.3d 699, 705 (2004) (precluding double recovery in worker’s compensation); Presnell v. Kelly, 113 Idaho 1, 3, 740 P.2d 43, 45 (1987) (explaining that one of the purposes behind “subrogation for third party liability is to prevent the injured claimant from obtaining a double recovery”) (citing Schneider v. Farmers Merchant, Inc., 106 Idaho 241, 245, 678 P.2d 33, 37 (1983)). Idaho Code Section 6-1606’s preclusion of double recovery is consistent with the similar effect of the 1984 amendments to Section 5-310 and 5-311 six years earlier. S.L. 1990, ch. 131, § 1.

[xxxiii] 529 N.E.2d at 70 (emphasis added; citations omitted).

[xxxiv] Id. at 70-71.

[xxxv] Id. at 70-71; accord 70 Idaho at 466, 220 P.2d at 683 (holding that substantial loss in wrongful death cases is presumed), overruled in part by Meissner v. Smith, 94 Idaho 563, 494 P.2d 567 (1972).

[xxxvi] “Loss of society … constitutes a loss of positive benefits which flowed to the family from the decedent’s having been a part of it. Loss of society asks, ‘what positive benefits have been taken away from the beneficiaries by reason of the wrongful death?’” Sawyer v. Claar, 115 Idaho 322, 326–27, 766 P.2d 792, 796–97 (Ct. App. 1988), approved in part, disapproved in part, 117 Idaho 157, 786 P.2d 548 (1990) (quoting Moore v. Lillebo, 722 S.W.2d 683, 687–88 (Tex.1986)).

[xxxvii] 529 N.E.2d at 213 (internal quotation marks omitted) (quoting Cockrum v. Baumgartner, 447 N.E.2d 385, 390 (Ill. 1983).

[xxxviii] That “just” damages were removed from injury cases did not create a common law cause of action. Davison v. Debest Plumbing, Inc., 163 Idaho 571, 578, 416 P.3d 943, 950 (2018) (“When interpreting a statute, this Court presumes the Legislature did not intend to change the common law unless the language of the statute clearly indicates otherwise.”) (Brackets and internal quotation marks omitted) (quoting Callies v. O’Neal, 147 Idaho 841, 847, 216 P.3d 130, 136 (2009)).