Juan and Nora Valdez filed a lawsuit in federal court against defendants Macy’s and Thyssenkrupp Elevator America, Inc. due to the personal injuries suffered by their 10 year daughter whose right foot and leg got trapped in an escalator while visiting a Macy’s store. J.V. by her GAL Juan Valdez v. Macy’s, Inc., 2014 U.S. Dist. LEXIS 138952 (D.N.J. September 30, 2014). The minor underwent 13 surgeries to save her foot and leg, but she did have her pinky and second toes amputated. They sued in their own names, as well as on behalf of their daughter, claiming negligence against the defendants. Their lawsuit also included a claim for parental loss of consortium. Both defendants filed a motion to dismiss the loss of consortium claim.
The parents claimed the loss of consortium and services premised on the assertion that as parents, they were entitled to the services and consortium that parents would typically expect from a child living in the same household and that they have lost that based upon the defendants’ conduct. In deciding this motion, the court looked to New Jersey law.
The District Court found that a parental loss of services of a minor child resulting from a negligence claim was a viable claim under New Jersey law. However, the Court noted that New Jersey law does not provide for the right of recovery by parents to sue for the loss of consortium of a minor child.
Parents can sue for damages for loss of the child’s past or future services. The rationale for such a claim is rooted in the common law when children would work on the family farm or at a factory as early as age 10. While other states have moved beyond the pecuniary loss calculation of a parent’s loss, New Jersey remains “off-trend” in prohibiting a loss of consortium claim. Thus, the District Court granted the defendants’ motion in dismissing this claim.
