A tragic event, a lawsuit in a recent newspaper article prompts these thoughts.
In May of 2006, a 3 year old boy died after his head became caught in a car window. In Wisconsin, parents of a minor have the right to file a wrongful death action because of the death of their child. They can sue for loss of society and companionship and can also sue for reimbursement or payment of medical expenses, etc. The issue in this case is that the father, Erik Affolter, filed suit in Dunn County Circuit Court alleging loss of society and companionship of his son while having never have spoken to him, sent a birthday or Christmas gift or attend his funeral.
The article goes on to question whether or not the law should allow a father with absolutely no connection other than impregnating the child’s mother to have a right to recover money damages as a result of the child’s death. The Dunn County Circuit Court said no, there was no relationship to allow the case to proceed. However, the Wisconsin Court of Appeals reversed the decision of the lower court and held that because the law allows for a parent to recover these damages, it is up for a jury to decide whether or not the father is entitled to recovery.
The story goes on to explain that Mr. Affolter has many reasons for his lack of relationship with his son. First, it was the mother and her parents who were preventing him from having contact with his child. Second, there were financial issues. Third, Mr. Affolter claimed that his child was only 3 years old and there were many more years for him to establish a relationship , all of which was cut short, by the tragic accident.
The insurance company, American Family, argued that since there was no relationship the court should circumvent the statute allowing both or either parent to file a claim for the death of their child because of the lack of a relationship. As indicated, the Wisconsin Court of Appeals has now put this case to a Dunn County jury to allow them to determine whether Mr. Affolter should be entitled to recover and if so how much.
This is a tragic story. A young boy needlessly died. We will never know if father and son would have developed a relationship because it ended before it began. We do not know if the father would have ultimately requested the court to intervene and force the mother and her parents to cooperate so that he could have a relationship with his child. It was the child’s loss that he died without a father and it certainly was the father’s loss having a child die without ever having the opportunity or privilege to know his child.
In any event, the law in Wisconsin is and continues to be that either or both parents can file a claim to recover for the loss of a minor child. Loss of society and companionship recovery, however, is limited to $500,000 for the loss of society and companionship of a minor child. This loss is limited to recovery by one or both parents. Today, there are many children born out of wedlock and there are also many children who are children of divorce meaning that there can sometimes be conflicts or competing interests between parents.
In the event you or a family member have either lost or had a child severely injured as a result of the negligence of others, do not hesitate to contact Krueger Hernandez & Thompson SC for a no cost, no obligation consultation to explore both your legal rights as well as your child’s legal rights. We can also help with those situations in which you are having difficulty with custody and placement of your minor child either in a paternity, divorce or post-divorce action. We put children first and foremost as they are the ones who deserve our attention and help the most. Share your comments with us and others.
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