Should Kentucky Extend the Loss of Consortium Claim to an Adult Child for the Wrongful Death of a Parent?

Blog Post | 113 KY. L. J. ONLINE | October 8, 2024

Should Kentucky Extend the Loss of Consortium Claim to an Adult Child for the Wrongful Death of a Parent?

By: Ben Whatley, Staff Editor, Vol. 113 

On a foggy August morning in 2006, Comair Flight 5191 crashed while attempting to take off from the Lexington Bluegrass Airport.[1] Among the 49 killed in the crash was the mother of Adam Theodore.[2] Theodore, who was intellectually disabled and wholly dependent on his mother for support, asserted a claim for loss of parental consortium in federal court against the airline and aircraft manufacturer.[3] The initial suit was dismissed[4] and a subsequent petition to reconsider was denied.[5] Why? Because Theodore, who was eighteen years old at the time of the accident, was considered by the Commonwealth of Kentucky to be an adult and thereby ineligible to claim loss of consortium for the wrongful death of his parent.[6] 

Loss of consortium is a claim for damages arising from a plaintiff’s loss of companionship and support, due to the injury or death of a loved one.[7] In Kentucky, loss of consortium is considered to be a derivative of the Commonwealth’s wrongful death cause of action, which permits recovery for death “result[ing] from an injury inflicted by negligence or wrongful act[.]”[8] Loss of consortium for a parent due to the wrongful death of a child is codified by state statute,[9] but loss of consortium for a child who loses a parent is only recognized under the common law as a reciprocal of the claim afforded to parents.[10] Therein lies the problem. Because the Kentucky statute authorizing loss of consortium for parents limits recovery to “loss of affection and companionship that would have been derived from such child during its minority,”[11] courts have interpreted the bereaved child’s reciprocal claim to be limited to damages that may accrue before the child reaches the age of majority (eighteen).[12] While Kentucky law does allow a child to sue for wrongful death as a representative of a deceased parent’s estate,[13] a child that is wholly dependent on their parent(s) for support essentially loses their corresponding cause of action for loss of support the moment they turn eighteen.[14] 

This statutory scheme appears to be out-of-sync with common law tort theories and out-of-touch with emerging trends in state tort law. Limiting recovery due to an immutable characteristic such as the plaintiff’s age—especially in the case of a disabled plaintiff—seems to run contrary to the negligence principle that a defendant “takes the plaintiff as he finds her” and is liable for all personal injuries caused.[15] Rather than placing the burden of liability on the tortfeasor responsible for the wrongful death of a disabled child’s caretaker, the Commonwealth’s loss of consortium jurisprudence shifts that burden back onto the family as de facto custodian[16] or even onto the Commonwealth (if no custodian is identified)[17] once the child reaches the age of majority. From a public policy standpoint, this appears to contravene established tort law precepts and runs counter to the best interests of disabled Kentuckians and the Commonwealth itself.  

Moreover, Kentucky’s laws concerning custody, guardianship, and emancipation frequently extend responsibility for the care of a child past the age of majority and, in some cases, indefinitely.[18] Why, if the Commonwealth is willing to extend the age of majority for the purposes of education, assisted living, and disability care in some instances,[19] should the law not afford a cause of action to sue for costs of ongoing care for a child who is completely dependent due to permanent disability? 

Loss of parental consortium claims are increasing in prevalence throughout the country and several U.S. states permit the cause of action for adult children.[20] Justifications for extending the cause of action focus on the positive effects of parental influence on adult children and note a child’s continued reliance on their parents for affection, guidance, solace, financial assistance, and even services well into adulthood.[21] Taking a cue from its neighbors, Kentucky should adopt a similarly progressive stance.

In the cases of Adam Theodore and other adult children denied a remedy for loss of their parents’ consortium, courts have expressed genuine sympathy in what might otherwise appear to be an uncaring application of the law.[22] But this exercise of judicial restraint in declining to extend the law also shows a reasonable deference to the Kentucky legislature and the Commonwealth’s constitutional separation of powers scheme.[23] So now the proverbial ball is in the legislature’s court. While a broad extension of the loss of consortium claim may prove to be too progressive for the legislature’s consideration at this time, that does not mean that adoption of a more measured approach benefitting one of the Commonwealth’s more vulnerable populations[24] is not appropriate. As such, Kentucky lawmakers should codify the right to sue for loss of parental consortium by statute and strongly consider extending the claim to adult children for the wrongful death of a parent in limited circumstances where a child over the age of majority is wholly dependent on their parent due to permanent physical or mental disability.

[1] Nat’l Transp. Safety Bd., Attempted Takeoff from Wrong Runway, Comair Flight 5191, Bombardier CL-600-2B19, N431CA, Lexington, Kentucky, August 27, 2006, at 1 (2007), https://www.ntsb.gov/investigations/AccidentReports/Reports/AAR0705.pdf.

[2] See In re Air Crash at Lexington, KY, 556 F. Supp. 2d 665, 674 (E.D. Ky. 2008) (detailing the list of plaintiffs who lost loved ones in the crash).

[3] Id. at 668.

[4] Id. at 674-675, 677.

[5] In re Air Crash at Lexington, 2008 U.S. Dist. LEXIS 18374, at *6-7 (E.D. Ky. Mar. 10, 2008).

[6] See In re Air Crash at Lexington, 556 F. Supp. 2d at 675; In re Air Crash at Lexington, U.S. Dist. LEXIS 18374, at *6.

[7] Dan B. Dobbs, The Law of Torts 842–43 (2000).

[8] Ky. Const. § 241.

[9] Ky. Rev. Stat. Ann. § 411.135 (LexisNexis 2024).

[10] See Giuliani v. Guiler, 951 S.W.2d 318, 323 (Ky. 1997) (ruling that “[i]t is necessary for this Court to conform the common law so as to provide a remedy for loss of consortium for children”); Lambert v. Franklin Real Est. Co., 37 S.W. 3d 770, 780 (Ky. Ct. App. 2000) (holding that Giuliani “is best read as providing a cause of action to a child only in those cases where there is likewise an action for the wrongful death of the parent”); Charash v. Johnson, 43 S.W.3d 274, 279 (Ky. Ct. App. 2000) (holding that loss of consortium claims for parent and child are “legally indistinguishable and reciprocal”).

[11] § 411.135 (LexisNexis) (emphasis added).

[12] See Ky. Rev. Stat. Ann. § 2.015 (LexisNexis 2024); Smith v. Vilvarajah, 57 S.W.3d 839, 844 (Ky. Ct. App. 2000) (holding that a claim for loss of parental consortium may not extend to emancipated adult children).

[13] Ky. Rev. Stat. Ann. § 411.130 (LexisNexis 2024).

[14] See Clements v. Moore, 55 S.W.3d 838, 840–41(Ky. Ct. App. 2000) (reiterating that emancipated adult children are not entitled to loss of parental consortium under Kentucky common law); Pauly v. Chang, 498 S.W.3d 394, 415 (Ky. Ct. App. 2015) (opining that “based on the present state of the law, this Court declines to extend a child’s claim for loss of parental consortium beyond the age of majority”).

[15] Restatement (Third) of Torts: Liability for Physical and Emotional Harm, § 31 (Am. L. Inst. 2012).

[16] Ky. Rev. Stat. Ann. § 405.020(2) (LexisNexis 2024).

[17] Ky. Rev. Stat. Ann. § 210.290 (LexisNexis 2024).

[18] See, e.g., Ky. Rev. Stat. Ann. § 2.015 (LexisNexis 2024) (extending age of majority to twenty-one for disabled child); Ky. Rev. Stat. Ann. § 405.020(2) (LexisNexis 2024) (extending custodial responsibilities indefinitely for a child who is “wholly dependent because of permanent physical or mental disability”).

[19] See Ky. Rev. Stat. Ann. § 403.213 (LexisNexis 2024) (extending age of majority to nineteen for purposes of child support of a high school student); Ky. Rev. Stat. Ann. § 625.025 (LexisNexis 2024) (extending wardship to twenty-one for ward of the state participating in state/federal educational programs or assisting in establishing independent living arrangements).

[20] Marjorie A. Shields, Annotation, Adult Child’s Right of Action for Loss of Parental Consortium, 12 A.L.R. 6th 241 (2024).

[21] Id.; see also Meir Weinberg, The Fourteenth Amendment Due Process Right of Companionship Between a Parent and His or Her Adult Child: Examination of a Circuit Split, 43 New. Eng. L. Rev. 271, 295–96 (2009).

[22] See Clements, 55 S.W.3d at 840; In re Air Crash at Lexington, KY, 556 F. Supp. 2d 665, 675 (E.D. Ky. 2008).

[23] See Ky. Const. § 29 (vesting legislative power in the “General Assembly of the Commonwealth of Kentucky”).

[24] See Kentucky Map of Covered Populations by Block Groups, Ky. Ctr. for Stat., https://experience.arcgis.com/experience/3be3cddd64ba46ea8c3ffb6f0d2b766c/page/People-with-Disabilities/ (last visited Oct. 7, 2024) (listing “Households with Disabilities” among Kentucky populations classified as vulnerable); Disability Impacts Kentucky, U.S. Ctr. for Disease Control & Prevention, https://www.cdc.gov/ncbddd/disabilityandhealth/impacts/kentucky.html (July 8, 2024) (documenting health disparities and costs for disabled Kentuckians).