Luis John CRUZ, etc., et al., Petitioners, v. BROWARD COUNTY SCHOOL BOARD, Respondent, 800 So. 2d 213

PER CURIAM. We have for review Broward County School Board v. Cruz, 761 So.2d 388 (Fla. 4th DCA 2000), wherein the district court - certified the following question: Whether the award for loss of filial consortium to a parent extends beyond the child’s age of majority when it has been determined that the child has sustained a permanent total disability? Cruz, 761 So.2d at 396. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We answer in the negative and approve Cruz. I.

FACTS The underlying facts are set forth in the district court opinion, which provides in part: During the 1993 school year, when the incident giving rise to this lawsuit occurred, Cruz was a 15-year-old who was attending Miramar High School in the exceptional education cluster “ESE.” Cruz was mentally handicapped with significant brain damage as a result of having been born three months premature. He functioned at a second- or third-grade level, although, by all accounts, he was physically active and enjoyed playing sports or fishing or visiting museums after school and on the weekends.

There was testimony that he was a calm and obedient child, but that he did get frustrated easily and had trouble staying on task. He was not prone to having fits of rage, never used foul language, and never exhibited psychotic behavior. On November 30, 1993, while on the way to a class, Cruz encountered another student, Donny Velasquez (“Velasquez”), outside in the area between the portable classrooms.... The two boys had some sort of altercation or confrontation which resulted in Velasquez’s pushing or dropping Cruz to the ground and Cruz landing on his head. Cruz, 761 So.2d at 389-90.

As a result of the incident, Cruz was seriously injured and he and his mother sued the Broward County School Board, alleging that the Board had been negligent in failing to provide adequate supervision. The jury found the School Board negligent and awarded Cruz $2,697,725 for his injuries and awarded Cruz’s mother $3,500,000 for loss of filial consortium. The trial court reduced the award to Cruz’s mother to $1,000,000, ruling that the award should cover only the four-year period between the date of the injury and the date of trial.

Cruz was fifteen years old at the time of the injury and nineteen years old at the time of trial. The School Board appealed and the district court reversed and remanded for a new trial, concluding that the School Board should have been permitted to have an independent neurological examination of Cruz. The district court also held, in a unanimous en banc ruling, that under the prevailing common law rule any future award to Cruz’s mother for loss of filial consortium should be calculated only until Cruz attained majority.

The district court reasoned: In Dempsey, the supreme court did not expressly speak to the issue of whether damages for loss of filial consortium should be limited to the child’s minority, or whether they should extend into the child’s majority. Although the supreme court in that case clearly expanded the common law to provide parents of severely injured children with an additional element of recovery, we do not, however, read Dempsey as a license to abandon all of the common law in this area.

Specifically, at common law, damages for the loss of a child’s services and earnings were recoverable only to the end of the child’s minority. We do not interpret Dempsey as having either expressly or impliedly broadened the recovery to a time beyond the child’s majority. We therefore, are compelled to follow common law unless and until our supreme court states otherwise. Broward County School Bd. v. Cruz, 761 So.2d 388, 396 (Fla. 4th DCA 2000) (citation and footnote omitted). The district court certified the above question. II.

THE APPLICABLE LAW Although a parent could not recover at common law for the wrongful death of a child, a parent could recover for the wrongful injury of a child. See Seaboard Air Line Railway v. Moseley, 60 Fla. 186, 53 So. 718, 718 (1910) (“At common law the father is entitled to the services of his minor children, and he can maintain an action for the wrongful acts of others in injuring his child, to recover damages for loss of the child’s services.

But if the injuries to the child result in its death, there can under the common law be no recovery for loss of services, upon the theory that the private wrong to the father is merged in the crime resulting from the death; the unlawful taking of human life being a felony.”). In Wilkie v.

Roberts, 91 Fla. 1064, 109 So. 225, 227 (1926), this Court said: “The father’s right to the custody, companionship, services, and earnings of his minor child are valuable rights, constituting a species of property in the father, a wrongful injury to which by a third person will support an action in favor of the father.” This right of action was later extended to the mother. See Yordon v. Savage, 279 So.2d 844, 846 (Fla.1973) (‘We hold today that this cause of action is available to either the father or the mother... .”).

However, the recovery allowed under the Wilkie decision was limited to elements of monetary loss. He could recover only his pecuniary loss as a result of the injury, and such loss was limited to two elements:

(1) The loss of the child’s services and earnings, present and prospective to the end of the minority; and (2) medical expenses in effecting or attempting to effect a cure. 109 So. at 227. Thus Wilkie did not allow recovery for the father’s intangible injury attributable to the loss of the child’s companionship or society. In United States v. Dempsey, 635 So.2d 961 (Fla.1994), this Court recognized that the compensable damages a parent could recover due to an injury to his or her child included the loss of the child’s companionship and society.

Thus recovery for loss of filial consortium was no longer restricted to monetary damages caused by the loss of the child’s services and earnings, but included also the intangible loss of the child’s “companionship, society, love, affection, and solace.” Id. at 965. III. DEMPSEY The district court below held that under United States v. Dempsey, 635 So.2d 961 (Fla.1994), and the prevailing common law, a parent may be awarded damages for loss of filial consortium, but only for the period until the child attains majority.

Because we approve of the district court’s analysis we quote it here: Since the factual issue of whether Cruz was severely and permanently injured will be re-considered by the jury on remand, we need not discuss it here. In order to guide the trial court in instructing the jury on re-trial, however, it is necessary to discuss the issue of whether an award to a parent for loss of filial consortium as a result of severe injury to a child is limited to, or extends beyond, the child’s minority. In United States v.

Dempsey, 635 So.2d 961 (Fla.1994), the supreme court recognized a parent’s right to recover for the permanent loss of filial consortium due to a significant injury which results in the child’s permanent total disability. See id. at 965. The court defined loss of consortium to include not only the traditional loss of the child’s services and earnings, as at common law, but also the loss of companionship, society, love, affection, and solace of the injured child. See id.

In expanding the common law beyond only pecuniary damages, the supreme court noted: This is a logical conclusion in light of the fact that when our common law rules are in doubt, this Court considers the “ ‘changes in our social and economic customs and present day conceptions of right and justice.’ ” Hoffman v. Jones, 280 So.2d 431, 435 (Fla.1973) (quoting Ripley[v. Ewell, 61 So.2d 420, 423 (Fla.1952) ]).

Certainly, in 1973, when this Court set forth the elements of damages that a parent of an injured child is entitled to recover, it was apparent that a child’s companionship and society were of far more value to the parent than were the services rendered by the child. Thus, there was an obvious need to recognize this element of damages to fully compensate the parent for the loss suffered because of a negligent injury to the child. The recognition of the loss of companionship element of damages clearly reflects our modern concept of family relationships. See id. at 964.

In Dempsey, the supreme court did not expressly speak to' the issue of whether damages for loss of filial consortium should be limited to the child’s minority, or whether they should extend into the child’s majority. Although the supreme court in that case clearly expanded the common law to provide parents of severely injured children with an additional element of recovery, we do not, however, read Dempsey as a license to abandon all of the common law in this area. Specifically, at common law, damages for the loss of a child’s services and earnings were recoverable only to the end of the child’s minority.

See generally Wilkie v. Roberts, 91 Fla. 1064, 109 So. 225, 227 (1926) (At common law, a parent’s recovery for his pecuniary loss as a result of injury to his child “was limited to two elements:

(1) The loss of the child’s services and earnings, present and prospective, to the end of the minority; and (2) medical expenses in effecting or attempting to effect a cure.”). We do not interpret Dempsey as having either expressly or impliedly broadened the recovery to a time beyond the child’s majority. We, therefore, are compelled to follow common law unless and until our supreme court states otherwise. See Hoffman, 280 So.2d at 435.

Thus, on remand, should the jury find that Cruz suffered a severe, permanent injury, the filial consortium award to Cruz’s mother should be calculated only from the date of the incident to the date Cruz attained majority. Broward County School Board v. Cruz, 761 So.2d 388, 395-96 (Fla. 4th DCA 2000) (footnote omitted). As noted by the district court, in Dempsey we did not expressly speak to the issue of whether the parents’ claim for loss of filial consortium was limited to the child’s minority.

However, we did emphasize our view that due to changing times it had become “apparent that a child’s companionship and society were of far more value to the parent than were the services rendered by the child.” Dempsey at 964. Hence, we determined that parents should be entitled to recover damages for loss of a child’s companionship and society just as parents had previously been entitled to recover for loss of the child’s services. Of course, any recovery for loss of services was limited under the common law to the period before a child becomes an adult.

We did nothing in Dempsey to change that rule of limitation. Indeed, in Florida, a parent is not entitled to any claim for damages when an adult child incurs personal injuries due to the tortious conduct of another. It would make little sense to allow for damages into the adulthood of a child in the one instance but not in the other. Accordingly, we hold that under Dempsey the parents’ claim is limited to the child’s minority. We answer the certified question in the negative and approve the district court’s opinion and decision. It is so ordered.

WELLS, C.J., HARDING, ANSTEAD, and LEWIS, JJ„ and WEBSTER, Associate Justice, concur. SHAW, J., dissents with an opinion, im which QUINCE, J., concurs. PARIENTE, J., recused.