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Ferriter v. Daniel O'Connell's Sons, Inc., 413 N.E.2d 690 (Mass. 1980)

The rights of individuals to recover for nonpecuniary losses have evolved steadily since the inception of tort law. One of the first steps in this evolution was allowing recovery for loss of services under the master/servant relationship. Under this doctrine, an employer or master could recover the value of his employee's services, if lost through a defendant's tortious conduct. In order to recover, the plaintiff was required to show actual, measurable monetary loss, such as the replacement costs for his lost servant.

The master/servant analogy was later transposed upon the familial relationship, with the husband in the role of master and the wife and children as servants. If his spouse or child fell victim to a tortfeasor, the "man of the house" could recover the value of his loss from the tortfeasor. Recoverable losses included such damages as the costs of replacing the son with a field hand or the wife with a maid.

Slowly, and coincidentally with the transformation from an agrarian to an industrial society, the requirement of showing actual lost services was eroded. The husband became entitled to recover for such nonpecuniary losses as society, companionship, and consortium. Although for an extended time these recoveries were only available to men, some jurisdictions eventually concluded there was no good reason to deny wives and children the opportunity to recover in limited, quasi-punitive actions such as under Wrongful Death and Dramshop Acts.

Recovery for loss of spousal consortium and loss of a child's society remained exclusively a male right for years after women and children gained the right to recover nonpecuniary damages under Wrongful Death and Dramshop Acts. To justify this rule, courts continued to cite the archaic master/servant analogy or the equally antiquated theory that all familial actions and recoveries belonged to the husband. Eventually, however, as the equality of women was recognized and the master/servant analogy was dropped, courts began to allow women to maintain actions for loss of the husband's consortium in negligent injury actions. During this liberalization of nonpecuniary loss rules for women, children were left in the background. Although some courts allowed recovery for loss of parental society in enticement actions, until the case of Ferriter v. Daniel O'Connell's Sons, Inc., only one jurisdiction had allowed an action for this loss in a negligent injury case.

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