ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
SCOTT A. BENKIE PATRICIA POLIS MCCRORY
DOUGLAS A. CRAWFORD
THOMAS G. SAFLEY
Benkie & Crawford PAUL C. SWEENEY
Indianapolis, Indiana Harrison & Moberly
SUPREME COURT OF INDIANA
JENNIPHER FORTE, individually and on )
behalf of the ESTATE OF JEFFREY BARCUS, )
) Supreme Court Cause Number
Appellants-Plaintiffs, ) 48S02-9904-CV-270
CONNERWOOD HEALTHCARE, INC., ) Court of Appeals Cause Number
d/b/a ANDERSON HEALTHCARE CENTER, ) 48A02-9807-CV-561
LINDA STROPES, M.D., RESPIRATORY )
THERAPY CO., TRANSITIONAL HOSPITALS )
CORP. OF INDIANAPOLIS, TAMMY SIGLER, )
R.R.T., SHEILA BABCOCK, PAULA KING, )
ANGELA JESSUP, ELLEN THOMPSON SEIGLER, )
JANE STANGER, JULIE ALLMAN, )
CHRIS LEETH BEATY, RUTH LEVELL, )
CYNTHIA COLEMAN, FRANCES STREGE, )
LENORA HAMPTON, SHIRLEY NANCE )
SPRADLIN, SHERYL MCDONALD, ANNA )
HOSKINS, CATHY SWAFFORD, PAULETTE )
CZERWIN, CONNIE MCKINNEY, PATRICIA )
SMITH (LEWIS ), JERRI OVERMAN, PATTY )
LEONARD, DIANE WEST, SUE SLACK, )
DEBBIE METZGER, CATHY HAYNES, and )
UNKNOWN NURSES, )
APPEAL FROM THE MADISON SUPERIOR COURT 3
The Honorable Thomas Newman, Jr., Judge
Cause No. 48D03-9609-CT-0641
ON PETITION TO TRANSFER
April 18, 2001
In this opinion we conclude that punitive damages are not recoverable under the
Child Wrongful Death Statute. We also conclude that a parents common law
claim for loss of a childs services survives enactment of the Child Wrongful
Death Statute. However, under the common law, punitive damages are not a
part of the claim and therefore are not recoverable.
On October 2, 1995, Jennipher Forte (Mother) placed her five-year-old developmentally disabled son
in the custody of Connerwood Health Care, Inc., a nursing home doing business
as Anderson Healthcare Center.
According to Mother, over the course of the
next several days, the nursing home committed several acts of negligence that led
to her sons death on October 9, 1995. Thereafter, on her own
behalf and on behalf of her sons estate Mother sued the nursing home
along with several members of its medical staff
(referred to collectively as Defendants). In her initial complaint, Mother sought compensatory
damages only. However, alleging that Defendants negligence was willful and wanton, Mother
later amended her complaint to include a claim for punitive damages. After
filing their answer, Defendants moved for partial judgment on the pleadings with respect
to punitive damages, contending that they are not available under the Child Wrongful
See footnote In response, Mother argued that not only was she entitled
to recover punitive damages under the statute, but also she was entitled to
punitive damages for loss of consortium apart from the statute. The trial
court granted Defendants motion and Mother pursued an interlocutory appeal.
On review, the Court of Appeals agreed that the trial court properly granted
Defendants motion concerning Mothers claim to a statutory right of punitive damages.
See Forte v. Connerwood Healthcare, Inc., 702 N.E.2d 1108, 1111 (Ind. Ct. App.
1998). However, the Court of Appeals determined that the allegations in Mothers
complaint established facts entitling Mother to punitive damages on another theory common
law loss of services. Id. at 1113. Having previously granted transfer,
we affirm the trial court.
I. Punitive Damages Under the Child Wrongful Death Statute
Although this Court has never addressed the issue, we agree with the Court
of Appeals that punitive damages are not recoverable under the Child Wrongful Death
Statute. At common law, there was no liability in tort for killing
another because actions for personal injury did not survive the death of the
injured party. Gann v. Worman, 69 Ind. 458, 461 (1880); Ed Wiersma
Trucking Co. v. Pfaff, 643 N.E.2d 909, 911 (Ind. Ct. App. 1994), adopted
by, 678 N.E.2d 110 (Ind. 1997). Our legislature first authorized a cause
of action for the death of a minor in 1851, the same year
Indianas second constitution was adopted.
See footnote Since 1851, the statute has been amended several
times, the latest of which was in 1998.See footnote Until 1987, the changes in
the statute from its original enactment were basically those of form. Otherwise
the statute remained essentially the same.
Although the predecessor to the 1987 statute contained no provisions concerning damages, case
law severely restricted the damages recoverable in such actions to allow recovery only
for pecuniary losses sustained by the parents.
See Miller v. Mayberry, 506
N.E.2d 7, 11 (Ind. 1987), affd, 546 N.E.2d 834 (Ind. 1989) (superceded by
statute). The proper measure of damages for the death of a minor
child was determined to be the value of the childs services from the
time of death until majority, taken in connection with the childs prospects in
life, less the cost of support and maintenance, to which may be added,
in a proper case, the expense of care and attention made necessary by
the injury, funeral expenses, and medical services. Thompson v. Town of Fort
Branch, 204 Ind. 152, 164, 178 N.E. 440, 444 (1931); Boland v. Greer,
409 N.E.2d 1116, 1119 (Ind. Ct. App. 1980). As the Court of
Appeals observed, recovery for wrongful death of a child has been restricted to
the actual pecuniary loss sustained. Andis v. Hawkins, 489 N.E.2d 78, 83
(Ind. Ct. App. 1986).
With enactment of the 1987 amendment, the legislature set forth the recoverable damages
for the first time.
See footnote Consistent with then existing case authority, the statute
any reference to punitive damages. The statute has been amended twice since
1987, but the damages portion has remained unchanged.See footnote
Concerning the general wrongful death statute, it has been held that because an
action for wrongful death did not exist at common law, the statute should
be strictly construed against the expansion of liability. Thomas v. Eads, 400
N.E.2d 778, 780 (Ind. Ct. App. 1980). The same is true for
the Child Wrongful Death Statute. In reviewing such a statute, we presume
that the legislature did not intend to make any changes in the common
law beyond those declared either in express terms or by unmistakable implication.
South Bend Cmty. Schs. v. Widawski, 622 N.E.2d 160, 162 (Ind. 1993).
We acknowledge that for more than a century, Indiana common law has permitted
the recovery of punitive damages under appropriate circumstances. See, e.g., Citizens St.
R.R. Co. of Indianapolis v. Willoeby, 134 Ind. 563, 569, 33 N.E. 627,
629 (1893); Louisville, New Albany & Chi. Ry. Co. v. Wolfe, 128 Ind.
347, 352-53, 27 N.E. 606, 607 (1890). Thus it may be argued
that by enacting the Child Wrongful Death Statute, the legislature did not intend
to change the common law with respect to punitive damages. See, e.g.,
Louisville, New Albany & Chi. Ry. Co. v. Goodykoontz, 119 Ind. 111, 112,
21 N.E. 472, 472 (1889) (declaring that the Child Wrongful Death Statute added
to the common law remedy by allowing a parent to recover all the
probable pecuniary loss resulting from the death of a child).
See footnote However, even
assuming that punitive damages may have been recoverable at common law, at least
since the 1987 amendment, the Child Wrongful Death Statute has contained an exclusive
list of damages recoverable by a childs parent or guardian. Absent in
the list is any reference to punitive damages. When certain items or
words are specified or enumerated in a statute then, by implication, other items
or words not so specified or enumerated are excluded.
Health & Hosp.
Corp. of Marion County v. Marion County, 470 N.E.2d 1348, 1355 (Ind. Ct.
App. 1984). We conclude, therefore, that even if the common law allowed
punitive damages in an action for the wrongful death of a child, our
legislature has exercised its prerogative to change the common law by unmistakable implication.
See South Bend Cmty. Schs., 622 N.E.2d at 162. Accordingly, the
trial court properly granted Defendants motion for partial judgment on the pleadings concerning
II. Common Law Claim for Loss of Services of a Child
We first address a preliminary matter. In their Brief in Support of
Petition to Transfer, Defendants question the Court of Appeals determination that Mother could
pursue a common law claim for loss of services of her child.
According to Defendants, Mother never made a claim for loss of services; rather,
her claim was for a loss of consortium. Defendants argue that the
two are not the same. We agree the claims are different.
However, because of the procedural posture of this case, the Court of Appeals
was correct in addressing the issue.
After Mother filed her amended complaint and Defend
ants filed their answer, Defendants moved
for judgment on the pleadings under the provisions of Indiana Trial Rule 12(C),
which the trial court granted. A motion for judgment on the pleadings
should be granted only where it is clear from the face of the
complaint that under no circumstances could relief be granted. Culver-Union Twp. Ambulance
Serv. v. Steindler, 629 N.E.2d 1231, 1235 (Ind. 1994) (quoting Martin v. Shea,
463 N.E.2d 1092, 1093 (Ind. 1984)). In this case, it is true
that Mothers complaint does not mention the loss of services of her child.
However, our reading of the complaint shows factual allegations sufficient to support
a claim for loss of services. Thus we see no problem with
the Court of Appeals addressing the issue. For reasons discussed below, however, we
disagree with our colleagues that punitive damages are recoverable under a claim for
loss of services.
The origins of a common law claim for loss of services are generally
traced to 13th Century Roman law. Francis Bowes Sayre, Inducing Breach of
Contract, 36 Harv. L. Rev. 663, 663-64 (1923). The Roman system allowed
the head of the household to pursue a claim stemming from a violent
action or insult upon any member of the household. Id. at 665.
English common law followed suit in the 14th Century when it
allowed a master, in order to protect his property right in his servant,
to initiate a lawsuit to compensate him for lost services due to an
intentional injury to his property. Id.; see also Keeton et al., §
125, at 931.
The development of loss of services claims in this country followed the English
common law. However, in addition to a masters claim to the services
of his servant, the claim was expanded to include a fathers right to
recover for the loss of services of his child. See, e.g., Plummer v.
Webb, 19 F. Cas. 894, 896 (D. Me. 1825) (noting that a parent
may maintain an action for loss of services stemming from injuries to a
child under the guardianship of his father); Ream v. Rank, 3 Serg. &
Rawle 215, 216-17 (Pa. 1817) (acknowledging that loss of services is the proper
claim for the luring away of a fathers daughter). Similar to a
masters loss of services of his servant, a fathers loss of services of
his child was in the nature of a property right with recoverable damages
limited to pecuniary losses for injury to the fathers property. See Houston
& Great N. R.R. Co. v. Miller, 49 Tex. 322, 332 (1878) (declaring
that a father is entitled to damages for loss of childs services, medical
expenses, and any other expenses rendered necessary by the injury); Oakland Ry. Co.
v. Fielding, 48 Pa. 320, 327-28 (1864) (holding that the trial court was
correct in instructing the jury that the father was limited to pecuniary damages
in his loss of services claim).
As with other jurisdictions, by the latter half of the nineteenth century, this
jurisdiction also began to recognize a fathers right to recover for the services
he lost as a result of an injured child. See Binford v.
Johnston, 82 Ind. 426, 431 (1882); Boyd v. Blaisdell, 15 Ind. 73, 75-76
(1860); Long v. Morrison, 14 Ind. 595, 596-97 (1860). Our courts also
limited the recoverable damages to monetary or pecuniary losses only. See Thompson,
204 Ind. at 164, 178 N.E.2d at 444; Long, 14 Ind. at 600;
Citizens St. R.R. Co. v. Willoeby, 15 Ind. App. 312, 321-22, 43 N.E.
1058, 1059 (1896).
As the case law has developed, Indiana has continued to acknowledge a common
law cause of action for loss of a childs services. Although we
have long departed from the notion that only the father may pursue such
an action - either parent may do so - we have continued to
maintain that the action is in the nature of a property right as
opposed to an action for personal injury. See Graf v. City Transit
Co., 220 Ind. 249, 251-52, 41 N.E. 941, 942 (1942) (an action for
loss of services is an action for injuries to property rather than for
injuries to person); Buffalo v. Buffalo, 441 N.E.2d 711, 714 (Ind. Ct. App.
1982) (A suit brought by a parent to recover the value of lost
services of a minor child resulting from an injury caused by a defendant
is an action for injury to property rights.) (superceded by I.C. § 9-3-3-1
on other grounds).
Consistent with the common law, the Child Wrongful Death Statute also allows a
parent to pursue damages for loss of a childs services. However, unlike
a common law claim where damages are measured from the date of injury
to the date of death, see Mayhew v. Burns, 103 Ind. 328, 333,
2 N.E. 793, 796 (1885), under the Child Wrongful Death Statute the recovery
for loss of services is measured from the date of the childs death
until a subsequent triggering event. I.C. § 34-23-2-1(f).
Because the statute
allows a parent to pursue a claim for damages after the death of
a child, the statute marks a radical departure from the common law.
That is so because, as we have already noted, under the common law
a claim of injury expired with the death of the injured party.
Gann, 69 Ind. at 461; Ed Wiersma Trucking Co., 643 N.E.2d at 911.
Now, a parent may pursue a claim after his or her childs
death and is entitled to a variety of statutory damages including loss of
services. However, the statute does not address, either in express terms or
by unmistakable implication, a claim for loss of services arising during the childs
lifetime; that is, from the date of injury to the date of death.
We conclude therefore that a parents common law claim for loss of
a childs services survives enactment of the Child Wrongful Death Statute. The
question remains, however, whether punitive damages are recoverable under a common law claim.
We conclude they are not.
We first acknowledge that we have found no cases in this jurisdiction specifically
addressing whether a parent is entitled to punitive damages as a result of
injury to his or her property rights in a child.
204 Ind. at 157, 178 N.E. at 442 (citing with approval Tidd v.
Skinner, 122 N.E. 247, 251 (N.Y. 1919), in which New Yorks highest court
rejected the notion that punitive damages are recoverable in action for loss of
services). Indeed, we have found only two cases in this jurisdiction in
which a parent even appears to have sought punitive damages on a claim
for loss of a childs services.
See Montgomery v. Crum, 150 N.E.
393 (Ind. Ct. App. 1926) (ruling that a $25,000.00 award for loss of
a childs services is excessive and that punitive damages were not recoverable because
of the rule of law at the time declaring that such damages are
unavailable where the commission of a wrong subjected the wrongdoer to both criminal
prosecution and civil liability), revd, 199 Ind. 660, 161 N.E. 251 (1928); accord
Struble v. Nodwift, 11 Ind. 64 (1858) (finding error in the trial courts
instruction to the jury that vindictive damages are available for claims of loss
of services, when the wrongdoer was liable for criminal prosecution). We are
of the view that the dearth of case authority on the subject of
whether a parent was entitled to recover punitive damages for loss of a
childs services is due at least in part to the fact that an
injury to a child that might have given rise to such a claim
was in the nature of a personal injury, owned by the child himself,
and inured to his benefit alone. See Long, 14 Ind. at 597
(noting that at common law, in addition to the parents loss of services
claim, an infant still had an action for personal injury); State v. Eaton,
659 N.E.2d 232, 237 (Ind. Ct. App. 1995) (noting that when a minor
is injured by a wrongful act, the child has a personal injury claim
and the parent has a claim for loss of services); see also 22
Am. Jur. 2d Damages § 781 (1988) (declaring that historically, exemplary damages have
only been available to the immediate person suffering the injury); J.D. Perovich, Annotation,
Spouses or Parents Right to Recover Punitive Damages in Connection with Recovery of
Damages for Medical Expenses or Loss of Services or Consortium Arising from Personal
Injury to Other Spouse or to Child, 25 A.L.R.3d 1416, 1417-18 (1969) (compiling
a jurisdiction by jurisdiction list of the courts declaring that when a parent
sues for loss of services from an injury negligently inflicted upon a child,
recovery is purely compensatory and not punitive).
Our review of the relevant case authority leads us to the conclusion that
although Indiana common law has permitted the recovery of punitive damages under appropriate
circumstances, those circumstances have never included the recovery of punitive damages for a
claim of loss of a childs services. Our legislature has not addressed
this issue, and Mother has not argued that this Court should abandon the
stare decisis and change the common law. Accordingly, as with
the claim for a statutory right of punitive damages, the trial court properly
granted Defendants motion for partial judgment on the pleadings on this issue as
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
After this case was fully briefed and transfer granted, Connerwood Healthcare,
Inc. filed a bankruptcy petition, triggering an automatic stay of action.
11 U.S.C. § 362(a)(1). However, Connerwoods bankruptcy does not prevent this Court
from proceeding with this appeal at least with respect to the non-bankrupt parties.
See Seiko Epson Corp. v. Nu-Kote Intl, Inc., 190 F.3d 1360, 1364-65
(Fed. Cir. 1999), rehg denied. Accordingly, the Court renders this decision with respect
to the non-bankrupt parties only. As for Connerwood Healthcare, Inc., this appeal
remains in abeyance by operation of the bankruptcy stay.
§ 34-1-1-8 (current version at I.C. § 34-23-2-1).
The first Child Wrongful Death Act provided:
A father, or in case of his death or desertion of his family,
or imprisonment, the mother, may maintain an action for the injury or death
of a child; and a guardian for the injury or death of his
ward. But when the action is brought by the guardian for an
injury to his ward, the damages shall inure to the benefit of his
1852 Ind. Acts vol. 2, pt. 2, ch. 1, art. 2, § 27,
See Pub.L. No. 1-1998, § 18, 1998 Ind. Acts 141-43; Pub.L.
No. 33-1989, § 116, 1989 Ind. Acts 608-10; Pub.L. No. 306-1987, § 1,
1987 Ind. Acts 2990-91; Pub.L. No. 316-1975, §1 1975 Ind. Acts 1759; 1951
Ind. Acts ch. 112, § 1, p. 307-08; 1881 Ind. Acts ch. 38,
§ 29, p. 244.
The statute provides in pertinent part:
In an action to recover for the death of a child, the plaintiff
may recover damages:
(1) for the loss of the childs services;
(2) for the loss of the childs love and companionship; and
(3) to pay the expenses of:
(A) health care and hospitalization necessitated by the wrongful act or omission that
caused the child's death;
(B) the child's funeral and burial;
(C) the reasonable expense of psychiatric and psychological counseling incurred by a surviving
parent or minor sibling of the child that is required because of the
death of the child;
(D) uninsured debts of the child, including debts for which a parent is
obligated on behalf of the child; and
(E) the administration of the childs estate, including reasonable attorneys fees.
I.C. § 34-23-2-1(e). See Pub.L. No. 306-1987, § 1, 1987 Ind. Acts
See Pub.L. No. 1-1998, § 18, 1998 Ind. Acts 141-43; Pub.L.
No. 33-1989, § 116, 1989 Ind. Acts 608-10.
See also Forte, 702 N.E.2d at 1111 n.3 (commenting that the
law in this area has been developed primarily in federal court decisions and
observing that at least one such decision noted that Indiana common law has
historically permitted the recovery of punitive damages under appropriate circumstances and the general
wrongful death statute permits an action whenever the decedent might have maintained an
action had he or she lived).
A claim for loss of services differs from loss of consortium
because loss of services
d[oes] not expand to include intangible losses, . .
. the parent [has] no claim for loss of the childs society and
companionship. W. Page Keeton et al., Prosser & Keeton on the Law
of Torts, § 125, at 934 (5th ed. 1984) (footnotes omitted). Whereas,
[c]onsortium is more than services in the ordinary sense[, a]n action for consortium
rests in large part on the impairment or destruction of the sexual life
of the couple. Boland, 409 N.E.2d at 1120. This Court has determined
that a child cannot recover loss of consortium damages for the death of
a parent because [t]he predominant element in the concept of consortium has been
described as the loss of the sexual relationship. Dearborn Fabricating & Engg
Corp., Inc. v. Wickham, 551 N.E.2d 1135, 1136 (Ind. 1990) (quotation omitted).
This Court concluded apart from wrongful death actions, a child may not maintain
an action for loss of parental consortium when the parent is negligently injured
by a third person. Id. at 1139.
Specifically the statute provides:
(f) Damages may be awarded under this section only with respect to the
period of time from the death of the child until:
(1) the date that the child would have reached:
(A) twenty (20) years of age; or
(B) twenty-three (23) years of age, if the child was enrolled in
an institution of higher education or in a vocational school or program;
(2) date of the childs last surviving parents death; whichever first occurs.
I.C. § 34-23-2-1(f).