*1 No. 30650. May [L.A. 1977.] BORER, Minor, etc., al.,
ANN MARIE et Plaintiffs and Appellants, AIRLINES, INC., AMERICAN Defendant and Respondent.
Counsel
John H. Russell and Sarrail & Russell for Plaintiffs and Appellants.
Brill, Hunt, Rissman, & Stuart E. Michael T. Fox and DeBuys Burby, Ellis J. Horvitz for Defendant and Respondent.
Opinion
TOBRINER, C. J. Acting v. Bethlehem Steel In Rodriguez Corp.
other than the injured person, spouse negligently to that maintain a cause of action could analogous upheld parent, a claim that issue case We face today: present presents Rodriguez. services, affection for the loss of the nine children companionship, mother; case of Baxter v. of their Superior guidance companion 315,563 Court, P.2d claim a 461 138 Cal.Rptr. presents 871] post, page [ for the loss of the and affection mother and father companionship son. their 16-year-old come or of children have
Claims for loss of consortium of parents our on occasions since the date of the before Courts four filing Appeal decisions a child of action Two have held that has no cause Rodriguez. for loss of v. Kantor consortium. (Garza Cal.App.3d *4 1025 Suter 45 v. Leonard 744 164]; (1975) Cal.Rptr. Cal.App.3d [127 [120 other 110].) Two cases have said that a can state a cause Cal.Rptr. parent of action of a for loss child’s consortium. v. (Mobaldi Regents of 573, 586 University Cal.App.3d Cal.Rptr. [127 of California 538, Hair 720]; County Monterey Cal.App.3d of a of between distinction (dictum).) Cal.Rptr. Unpersuaded any legal 639] loss loss of a and a claim for claim for child’s consortium child’s parent’s consortium, we case and in of a the instant granted hearings parent’s Court in to address Baxter v. order generally question Superior in a new action for of consortium whether to cause of loss recognize relationship. parent-child consortium, of of action for loss of
Judicial a cause recognition is an believe, Loss we circumscribed. of consortium must narrowly accurate which do not afford an for intangible money damages injury for of to recover measure or suitable recompense; recognition right moreover, context, increase such losses in the may substantially present cases, accident of the number claims asserted in of ordinary expense claims, or and the ultimate of settling resolving account, these into we shall defendants. considerations explain Taking for the we that of have concluded damages why persons payment of a or child lost affection and neither society parent truly compensates so. We for such cost in to do loss nor social justifies attempting and the differences between the marital relationship perceive significant action the limitation a cause of of relationship parent-child support situation; we further of to the marital shall therefore for loss consortium a cause that a child cannot maintain elaborate our reasons concluding we conclude In similar fashion of action consortium. for loss cannot Court that case of Baxter v. Superior parent companion child’s consortium. of a maintain a cause of action we shall argument why reject plaintiffs’ explain Finally, the loss of death action for in a can recover children because wrongful a denial deceased of their affection and plaintiffs’ parent, society would of their of consortium for the loss parent cause of action injured of the laws. them of protection equal deprive order a trial court
Since this arises sustaining following appeal amend, first we focus without leave demurrer pomplaint plaintiffs’ Plaintiffs, the nine on the allegations plaintiffs’ complaint. specific Borer, cover on a that on March of Patricia children allege Airlines Terminal at fixture at the American Kennedy Airport lighting a result of the Patricia. Plaintiffs further assert that as fell and struck Patricia, of them has been sustained each injuries “deprived physical affection, direction, services, society, companionship, tutelage, its instruction and aid in all with guidance, personality development, detriment, educational and emotional accompanying psychological, duties of a reason of Patricia Borer unable to on her usual being cariy mother.” The sets forth causes of action based upon negli complaint breach of a defective it and manufacture gence, warranty, product; Airlines, which manufac names as defendants American two companies fixture, fictitious defen tured and and various lighting assembled $100,000. seeks dants. Each damages plaintiff *5 for failure to
Defendant Airlines demurred to American complaint 430.10, Proc., The trial a Civ. subd. (e).) state cause of action. (Code § amend, entered leave to and court sustained the demurrer without Airlines. as defendant American the suit to judgment dismissing Plaintiffs from that appealed judgment. with our decision in
Our of analysis plaintiffs’ appeal begins v. 12 382. In that Bethlehem Steel Cal.3d Rodriguez holding Corp., supra, consortium, a has a cause action for we considered the of loss of spouse us to that such a would proffered argument require holding logically an in the or in cause of action context uphold analogous parent-child even more distant that contention. relationships; rejected decisions of other states on the above we stated on
Quoting point, 403-404 that the courts to traditional of pages “Recognizing power law, control the of court in Diaz v. a rule of development judge-made 555, 563, Eli and Mass. N.E.2d Lilly Company supra, [364 153] stated: ‘Nor does it follow that if the husband-wife relationship protected here identical must be afforded envisaged, protection by analogy other from that of in a to that of relationships parent-child lengthy regress
master-servant; courts will rather from case to case with proceed caution.’ (Fn. omitted.) same discerning Dismissing argument, [V] New court stated The law that has been most solicitous of Jersey always the husband and wife more so than the relationship, perhaps parent event, child In rather than is the relationship. any logic policy [Citation.] and, factor be determinative while mustered arguments may persuasive in favor of the child’s 919), claim (Prosser, reciprocal supra, of the wife’s rested own claim on its recognition may readily footing of of further.’ (Ekalo without equality justice any going compulsion 1, 215 A.2d N.J. Am (1965) v. Constructive Serv. supra, [46 82] Corp. of 7.)” thus, conclusion that foreseeable not does
Rodriguez, compel cause necessarily postulates recognized injury legally relationship action; it that at some of instead warns social must point policy clearly Borer, has delimit Patricia intervene to foreseeably example, liability. under and the not a husband has a cause action (who Rodriguez) here, of action children who sue but also whose right depends parents Court; our of Baxter v. decision case Superior upon companion inlaws, likewise, brothers, sisters, cousins, friends, she has foreseeably, will be her and other who deprived colleagues, acquaintances No one all such right persons possess suggests companionship. consortium; that somewhere line all action for loss of Patricia’s agree in Tobin Grossman As Breitel must be drawn. stated by Judge N.E.2d 419]; 24 N.Y.2d N.Y.S.2d “Eveiy injury waters, end. without like the has ripplings ramifying consequencesf to a for the law is to limit wrongs legal consequences problem controllable degree.”
. limit for loss of consortium The decision whether context, or to a cause of action in the parent-child permit denying *6 remote thus action but claim based more upon relationships, deny any As v. Leonard a of Justice in Suter by Fleming question policy. explained claim, “Plaintiff’s Cal.App.3d Cal.Rptr. 110]: viewed the abstract and divorced from its carries both in surroundings, . . of relation- and . Certain logical sympathetic appeal. aspects spousal are those there similar to of the and can ship parent-child relationship, little of loss suffered child of by question reality deprived and care of its our must Nevertheless decision take society parent. into account considerations in to addition and logical symmetry . . . can be made in loss sympathetic appeal. every compensable [N]ot and causation must terminate somewhere. In money damages, legal the extent of a tortfeasor’s for under delineating responsibility damages Code, tort courts 1714), rule of must (Civ. § general liability the line between and at some decision locate liability nonliability point, which is essentially political.” instance,
In the first reasons extension of strong argue policy against to loss consortium Loss of parent-child relationship. loss; consortium is an intangible, nonpecuniary monetary compensation will not enable to of a plaintiffs regain guidance companionship mother; adulthood, it will establish a fund so that simply upon reaching will be need of when less in maternal will be guidance, they plaintiffs men and women. To have been unusually wealthy say plaintiffs for their loss is in have suffered a “compensated” superficial; reality they obtained, loss for which can never be have they compensated; they instead, a future benefit unrelated to that loss. essentially
We cannot the social burden of for loss of ignore providing damages consortium because such awards parental merely money pay comes from the defendant or his insurer. Realistical- initially “negligent” the burden of of awards for loss of consortium.must be borne ly payment or, otherwise, in increased insurance generally public premiums in the enhanced that accrues from the number of danger greater people who choose to without insurance. We must also take into may go any account the cost of administration of a to determine and system pay awards; consortium since serious to a would virtually every injury parent a claim for loss of on behalf of each of his or her consortium engender children, or such claims would be expense settling litigating sizable. have
Plaintiffs out that courts monetary permitted recovery point awards for suffering intangible allowing pain damages loss of marital consor- cases and in sanctioning recovery negligence case, however, we tium. in this on whether before us pivots question action, should new cause of statute or recognize wholly unsupported in this context the to make precedent; inadequacy monetary damages suffered, whole the loss considered in of the social cost of light paying awards, constitutes reason for strong refusing recognize asserted claim. To avoid out that our misunderstanding, point decision refuse to a cause of action for consortium recognize *7 loss; does not of for remotely intangible suggest rejection recovery merits, each claim must be on its own in and cases judged many statutes, involved or will induce of the precedents, policy acceptance asserted of cause action.
A second a cause of action for loss reason rejecting parental that, character, consortium is because of its for such intangible damages a loss are difficult to measure. here Plaintiffs have very prayed $100,000 each; what standard could determine that an award yet by $10,000 $500,000 one of was or excessive? inadequate, Difficulty leads in turn to risk of double defining quantifying damages ¡ instructions, to ask the even under drafted to carefully recoveiy: jury, to the mother from her to care for her distinguish inability to care children from the loss to the children from mother’s inability New for them too much. Thus as observed by may asking Jersey Court in Russell Salem Company Supreme Transportation 862, 864, N.J. 502 A.2d A.L.R.3d “The social need asserted 522]: for the cause of action child’s action for loss of disputed parental [a as well be at least terms of the an family may qualified, consortium] unit, economic of the consideration by practical recognized many cases on the that reflection of the consequential disadvantages point children of found in awards to the injured parents frequently jury their own under law and on claims parents existing practice.” be, Plaintiffs out that similar could point policy arguments were, some extent raised in and that our decision Rodriguez, uphold the wife’s action for loss of consortium those We do rejected arguments. not, however, read as based Rodriguez holding arguments upon character of and the intangible damages difficulty measuring do not merit consideration. Such a would an damages holding imply extension of for loss of consortium to all foreseeable liability indefinite relationships, proposition Rodriguez plainly repudiates. then, holds no more than that in the of a context
Rodriguez, spousal do not suffice to relationship, policy arguments against contend, however, a cause of action. Plaintiffs justify holding denying that no exists to a cause of action for loss of ground adequate distinguish consortium from one for loss of consortium. We spousal parental reject the contention for three reasons.
First, out, action for loss of spousal Rodriguez pointed consortium rests in on the or destruction large part “impairment sexual life of the element of Cal.3d No similar (12 couple.” in a child’s suit for loss consortium. damage appears Second, actions children for loss of create consortium of actions and not in the problems multiplication damages present
449 out context. As New Court in Jersey Supreme spousal pointed A.2d v. Salem 295 864: Russell Transportation Company, supra, “If the claim were there allowed would be a substantial accretion of the tortfeasor out of a transaction liability against arising single (typically of an Whereas assertion of a automobile). negligent operation demand for loss of consortium a involves of spouse’s joining claim in the action with that of the single companion injured person, debated here would entail claims as right adding many companion children, had each entitled to minor such claim injured parent separate and award. The defendant’s be further burden would appraisal enlarged were if the claims founded to both upon injuries parents. Magnification awards to a derived of from a accident damage single family single might to a well become serious defendant as well as in problem particular the total terms of cost of enhanced awards to the insured as a whole.” community children,
The instant case illustrates Patricia has nine Borer point. each of whom would his own of action for loss possess right independent action, of consortium. Even in the of context a consolidated the assertion of nine causes of action for the children in addition independent claim father’s for loss of consortium and the mother’s suit for ordinary tort demonstrates the extent to which damages, recognition plaintiffs’ asserted cause of action will the tort of the defendant. multiply has a cause of action
Finally, proposition spouse consortium, not, but that a does child finds overwhelming approval states, the decisions of other Over 30 a clear jurisdictions. have
those who decided now suit for loss question, permit spousal No consortium.1 state a child to sue loss of permits parental count, consortium. That claim has been latest 18 presented, all of them.2 jurisdictions, rejected by Love, with Tortious the Parent-Child Loss 1See Relationship: listing Interference
an
Person’s
Society
(1976)
51 Ind. L.J.
596 footnote 20.
Injured
Companionship
2The California Court of
decisions
suit for loss of
child’s
reject
Appeal
Kantor,
Leonard,
consortium are Garza v.
Suter v.
54
supra,
1025 and
supra,
Cal.App.3d
Pleasant
Sand
45
744.
v.
Washington
Decisions of other
jurisdictions
include:
Cal.App.3d
& Gravel Co.
United States
(D.C.
1958)
374];
Cir.
F.2d 471
v.
Early
262
App.D.C.
[104
1973)
(9th
law);
Cir.
474
(Alaska
F.2d 756
Jeune v. Del E. Webb Constr.
(1954)
Co.
77
Turner v. Atlantic Coast Line
723];
1958)
Ariz.
P.2d
R. Co.
(D.
226
Ga.
159 F. Supp.
[269
(South
law);
590
Carolina
v.
(1957)
445];
634
Halberg
Young
Hawaii
A.L.R.2d
[59
Hankins v. Derby
581;
(Iowa 1973)
v. Dautel
211 N.W.2d
450
We claim that denial of a cause of action for reject, finally, plaintiffs’ law consortium is inconsistent with the of tort parental principles laid down in decisions of this court. Plaintiffs refer to Rowland v. prior 97, 561, 108, 32 69 Cal.2d 113 443 P.2d Christian (1968) Cal.Rptr. [70 which to be balanced in stated some of the considerations 496], A.L.R.3d from whether to a cause of action for resulting deciding deny injury and to v. (1976) University Regents negligence, of California Tarasoff 14, 425, 551 P.2d which stated that the 334], 17 434 Cal.3d Cal.Rptr. [131 was Neither of these considerations most foreseeability. important however, of a new cause of involved the creation Rowland nor Tarasoff, attended with action for solely problems multipli- intangible damages, considerations, These which were not cation of claims and liability. cases; form the of our or considered in the basis presented prior conclusion that we should claim. reject plaintiffs’
Plaintiffs on Dillon v. 68 (1968) Cal.2d place particular emphasis Legg 72, 912, 441 728 P.2d 29 A.L.R.3d which 1316], Cal.Rptr. upheld [69 cause of action for from a mother’s emotional trauma in injuries flowing the death of her child. We that the cause of action witnessing suggested should be sustained whenever the was foreseeable” injury “reasonably and that one factor to be was “whether 741), considered (p. plaintiff the victim were related.” Plaintiffs that we follow that (Ibid.) urge closely the instant decision of case. paradigm Dillon, however,
In
limited our
to a case in which
carefully
ruling
suffered
Cal.2d
(68
740.)
plaintiff
physical injury.
p.
Subsequent
decisions,
Dillon,
our
have refused to
interpreting
holding
recognize
cause of action in a.case in which the
suffered no
plaintiff
physical injury
himself as a result of
the infliction of
witnessing
injury upon
family
Graham, ante,
member.
Krouse v.
(See
59 at
77-78
pp.
Cal.App.
[137
863,
400
N.W.2d
Stout v. Kansas
Terminal R. Co.
City
Mo.App. 113 [157
[37
1019];
(1972)
366];
General Electric Co. v. Bush
Plaintiffs out that section point victim; an action for death the heirs of authorizes wrongful children of this section decisions recovery by interpreting permit judicial Graham, v. affection and Krouse (See the value of deceased’s society. ante, that no 67-68 and cases there Plaintiffs contend cited.) supra, pp. that the children of a deceased rational basis a ruling permits supports affection and but to recover the value lost companionship, parent cause of denies the children of a disabled similar seriously parent action.
Plaintiffs’
Civil Procedure
contention in essence asserts that Code of
underinclusive;
section 377 is
it
that
distinction
unconstitutionally
draws between the class of children whose
suffers death and those
parent
whose
suffers
cannot
Our
parent
disability
constitutionally
supported.
condenses into the
whether the classifica-
inquiry, consequently,
question
tion rests
some
of difference
a fair and substantial
“upon
ground
having
relation to the
of the
v. Reed
404 U.S.
(1971)
object
legislation.” {Reed
71,
225, 229,
75-76
L.Ed.2d
92 S.Ct.
Guano
v.
251];
Co.
Royster
[30
412,
989, 990-991,
253
415
40
U.S.
L.Ed.
S.Ct.
(1920)
560];
Virginia
[64
212,
Brown v. Merlo
8 Cal.3d
861
506 P.2d
Cal.Rptr.
[106
We two distinctions between child whose perceive significant disabled, killed is both of flow is and one whose which parent parent the fact in the latter case the victim retains his or her from that living cause action. The first distinction relates to the historical own purpose 1846, the date of the enactment of the of the death statutes. By wrongful statute, the common law courts had settled that the first death wrongful could not a cause of action heirs of a deceased victim bring against of action for considerations which lead us to a cause negligent injury 3The reject do bar an action for intentional interference consortium in a context not parent-child consortium, intentional interference with with consortium. An action for Rose Id (see in California Cal.App.2d recognized by precedent Rosefield fie 479]) unusual tort no presents danger Cal.Rptr. relatively moreover, serve to deter child of claims or The ruling, may multiplication damages. conduct. and similar antisocial stealing ed. (2d 1975) Death (See tortfeasor. Wrongful Speiser, Recovery for the defendant to “The result was it was more 1.1,1.2.) §§ profitable him, kill the than to scratch and that the most of all grievous plaintiff victim, left the bereaved of the who were injuries family frequently destitute, without a Torts This (Prosser, (4th 1971) ed. remedy.” curtailed deterrent of tort the law function loophole recovery, tortfeasors a substantial incentive finish off their victims. providing thus death statutes met an obvious and social need. wrongful logical Similar led courts to bereaved to reasons recover policy permit affection deceased. As stated in society Graham, *11 loss, Krouse v. “if were limited to damages truly ‘pecuniary’ would barred the to such recovery frequently by inability prove heirs’ children, The of loss. services or elderly parents, nonworking spouses unit, often do not result in measurable net income to the family yet of the death such a a substantial person represents unquestionably to the for loss of affection and 68.) (Ante, Recovery family.” ‘injuiy’ fulfills a felt social death action thus belief society wrongful deeply a tortfeasor who kills someone should not escape negligently no matter how his victim. unproductive completely, A suit for loss of consortium of a disabled parent wholly presents Here the cannot with for different tortfeasor picture. escape impunity, immediate victim of his tort a cause of for the the retains action injuries The the child to inflicted. claim in this not essential by prevent setting the tortfeasor from totally liability. escaping the death means action serves which
Secondly, wrongful unit can recover of care the loss family parental compensation in the and services case of the death of the While the parent. wrongful lives, however, “the of the child’s loss can be parent tangible aspects Stainback, J., in the own of action. cause As compensated parent’s put v. ., 41 Hawaii 640. . ‘where a has Halberg Young, supra, parent been act recover of another will from injured by negligent parent sustained, full other which he has if damage including inability, children, to care for his and thus the to any, properly ability parent’s not, out his to in a and maintain the child has cariy duty support legal ” sense, been or (Suter him.’ destroyed impaired by injury Leonard, supra, Cal.App.3d that the between the award
We conclude distinction damages has been child whose of affection and tortiously society parent has been killed, to a child whose of such denial parent damages disabled, rests a rational basis. Plaintiffs’ constitutional upon argument therefore fails.
In do not doubt the or the summary, reality magnitude We are need of children suffered aware of the by plaintiffs. injury keenly affection, love, for the of their society any guidance parents; injuiy which diminishes the of a needs is meet these ability parent plainly conclude, all members of that We family tragedy, harming community. however, that into account all considerations which bear on this taking to alle including monetary question, inadequacy compensation viate that and the tragedy, difficulty measuring damages, danger extended and we should not imposing disproportionate liability, recog nize a cause of action for the loss of consortium. nonstatutory is affirmed. judgment
Clark, J., Richardson, J., Sullivan, J.,* and concurred. J.,† Wright, *12 MOSK, J. I dissent.
Each of the
which
marshal
policy arguments
majority
against
the cause of action for loss of consortium in the
recognizing
parent-child
was
considered and
this court
in
relationship
expressly
rejected by
v. Bethlehem Steel
12 Cal.3d
(1974)
Rodriguez
Corp.
Cal.Rptr.
[115
765,
Chairman of the Judicial Council. Chief Justice of California under sitting †Retired assignment Acting by Chairman of Judicial Council. 129, 166, 65 Cal.2d v. Vasold Thus in Cal.Rptr. [53 Beagle most difficult tasks “One of the P.2d we said that 673], upon imposed determine the is to in a case injuries involving personal deciding jury is to be awarded amount of pain compensation money plaintiff it can which to the method is available and No jury suffering. his witness and no evaluate may express damages, objectively sense, In real the matter. jury on very [Citation.] subjective opinion for which detriment terms of monetary to evaluate in is asked money with demonstrable accuracy.” cannot be ascertained any compensation fact is that “the “Yet,” 176), (at inescapable Beagle emphasized do.” is called what this upon jury precisely 7 Cal.3d Kaiser Foundation Hospitals Again, Capelouto 856, Justice Tobriner wrote for 880], 500 P.2d 892-893 Cal.Rptr. is a convenient label that and unanimous court that suffering pain nervousness, also but includes not grief, “fright, only physical pain, shock, humiliation, mortification, embarrass- indignity, anxiety, worry, ment, these terms terror or ordeal. Admittedly [Citations.] apprehension, states, a detriment which can be refer subjective representing with But translated into loss only great difficulty. monetary [Citations.] detriment, nevertheless, is a one that genuine requires compensation must be resolved and the issue [citations], ‘impartial generally to act who conscience may expected judgment jurors with the evidence.’ and in harmony reasonably, intelligently [Citations.] Indeed, element constitutes mental principal suffering frequently [K] Torts, which fail to com. awards c); (Rest.2d § of tort damages held as a have been inadequate suffering pain compensate *13 I to reconcile this am unable of law. thorough matter utterly [Citations.]” “the with the of settled majority’s description statement principles the loss suffered.” make whole of monetaiy damages inadequacy 447.) {Ante, p. reason, i.e., that for a second claim
The reject plaintiffs’ majority character, are for such a loss of its very damages “because intangible This restates the first 448.) to measure.” {Ante, merely difficult p. The here is no more in loss reason, was likewise and Rodriguez. rejected Mrs. whose that than less Rodriguez, no experienced and “intangible” held the and yet became incapacitated, husband permanently 402 of (at difficult but to be Quoting p. manageable. valuation problem 22 N.Y.2d Elevator Co. (1968) v. Southeastern from Cal.3d) Millington 305, 312, N.Y.S.2d 239 N.E.2d 36 A.L.R.3d we denied 891] “ that of consortium is ‘too and personal, intangible, conjectural be measured in terms This has no merit. pecuniaiy by jury. argument The of it would also hold a to award logic jury damages incompetent for the an is a substitute loss of pain suffering, Money poor only [f] Likewise, child or the from serious it cannot pain resulting injuries. truly a wife for the destruction her but it is the marriage, compensate and to known means loss suffered symbolize compensate if that a unintentional—has recognition society’s culpable wrong—even ” been done.’ The next reason that the asserted in majority difficulty measuring “leads in turn to risk of double 448.) damages {Ante, Again recovery.” p. we dismissed the identical that the argument Rodriguez, explaining “risk” can be avoided the use of well-known alleged procedural devices as of actions and instructions to the (12 joinder appropriate jury. Cal.3d at 404-407.) pp.
The concede that we majority rejected foregoing arguments “read”—i.e., but now claim do not Rodriguez, they interpret—Rodriguez as “do not merit consideration.” holding {Ante, arguments however, On this 448.) is clear and p. point, Rodriguez crystal requires no far from that the double interpretation: implying recovery argument context, have some merit in another we characterized it in might substance,” “without with Rodriguez wholly quoted approval “fallacious,” “fictional,” decisions which derided it as and a “bogey” a convenient cliche” for {Id., 404.) “merely denying liability. on three but next seek to majority grounds, distinguish Rodriguez First, out” none is claim Rodriguez “pointed convincing. that the action for consortium rests “in on loss of spousal large part” of the sexual life of the impairment {Ante, p. Rodriguez couple. out” no such on the we there reasoned that the “pointed thing; contrary, *14 nonsexual loss suffered is at least as as the sexual loss: by spouse great “Nor is the wife’s loss limited to her sexual we As personal rights. in Deshotel Cal.2d at consortium includes (50 665), recognized comfort, affection, and An ‘conjugal society, companionship.’ important of consortium thus the is moral each the aspect support spouse gives other A and of life. disabled through triumph severely despair
husband
well need all the emotional
he has
to survive
may
strength
just
the shock of his
make
to his new and
injury,
agonizing adjustment
world,
restricted
and
his mental health
drastically
preserve
through
inwards,
of frustration ahead. He will often turn
long years
demanding
more solace for himself than he can
to others.
give
Accordingly,
of such a man cannot
him to share the same concern for
spouse
expect
her
that she
before his accident. As several of the
problems
experienced
it,
cases have
she is
wife into a
transformed from a
put
happy
lonely
Yet she
nurse.
is entitled to
and moral
enjoy
companionship
support
side,
no less than its sexual
and in both cases no
marriage provides
added;
less than her husband.”
italics
Two further must be made in this however obvious points limited, seem. cannot they may Rodriguez fairly majority imply, active a husband or wife of advanced sexually surely couples: years suffers a no less loss of when his or her compensable conjugal society lifetime of another. companion grievously injured by negligence And if restriction, even were to be to such a harsh Rodriguez subjected do not mean to hold that sexual is more surely activity affection, comfort, of the law’s concern than the worthy guidance which bestow on their children. loving parents second of distinction conve- majority’s ground purported may be reduced to form: if loss of (1) consortium niently syllogistic parental actionable, were accident would rise to as claims as single give many children; the victim had minor in our the victim is society likely have several such children but can have one therefore spouse; the cause of action for loss of consortium would result recognize in much for individual defendants and a much larger liability larger total cost to the than flow insured from (Ante, community Rodriguez. 448-449.) pp.
457 an accident the argument—that The minor majority’s premise however, 18—is, under children have several is to age victim likely “In our that we observed society inaccurate. In Rodriguez demonstrably is, woman married man or adult will be a that an the likelihood injured to the a reference statement substantial,” that supported the United States of the annually by Statistical Abstract published document That 19.) 400 & fn. Cal.3d at of the Census. (12 Bureau p. 65, 25 to showed, that years ages working of. during peak example, 77.8 between married men who were of all ranged the proportion {Ibid.) supposition, and 89.7 majority’s Contrary percent. percent with several of families that source reveals the same proportion in the the families 46 as of low: minor children percent very had additional 19.2 and an minor children States had no percent United total; child, of the only one such over conversely, making only percent “4 class of children, the entire 9.5 of families had three minor percent 7.4 such children a mere or more” comprised percent.1 that, The last of the establishes contrary quoted figures of American the case at bar is atypical majority’s implication, completely the families with four If all of the 20th in the second half century. society total, 7.4 children constitute or more minor only percent of nine here, number with, of families large extremely proportion was time the at the whom were minors complaint children—eight circumstances it is be a minute fraction of In these filed—must percent. that the fact the victim for the to assert manifestly misleading 449.) has nine children “illustrates” this of distinction. {Ante,p. ground I For same reason' see no relevance in the further majority’s individual causes of observation the assertion of the nine children’s in addition claim consortium and action father’s for loss spousal the extent to which the mother’s suit for “demonstrates injuries personal will the tort asserted cause of action multiply recognition plaintiffs’ it “demon- {Ante, of the defendant.” The only point liability It does not strates” is that 9 11. certainly support plus equal will be claim that of majority’s significant multiplications events. frequent (96th 1975) table No. 56. Abstract of the United States ed. page 1Statistical constant over that these have remained remarkably
same table discloses
proportions
a few
throughout
period.
years, varying by
percentage points
past
*16
Not
do the statistics show the
to be
concern
unwarrant-
majority’s
ed,
matter, i.e.,
also confirm the verdict of
that
common sense in this
they
smaller,
ask us to take a
we took
not
than
plaintiffs actually
larger, step
adult,
in
Inasmuch as
children who are no
Rodriguez.
emancipated
in the
home could
little if
from
longer living
family
prove
any damage
consortium,
loss of
I assume the
are most troubled
parental
by
ante,
of claims
minor children.
(See
449.)
prospect
by
p.
Upon
reflection, it will be seen that such children
a much
inevitably comprise
more limited class than
for two reasons: not all married
spouses,
persons
children;
do,
have
and of those who
are
of minor children
they
parents
for a far shorter
of time than
are
It is therefore not
period
they
spouses.
that
more than
of the adult
although
surprising
tion is
three-quarters
popula-
married,
half
almost
of such households—46
no
percent—have
minor children whatever.
It follows that
cause of
recognition
action for loss of
consortium will result in a lesser rather than a
parental
effect on individual
and overall insurance costs than our
greater
action
approval
corresponding
by spouse Rodriguez.
v
449)
third
The
of distinction
majority’s
(ante,
proposed ground
p.
deserves little comment.
is
on the fact that no state has
Emphasis
placed
consortium,
cause of action for loss of
while a
recognized
substantial number had
consortium action
permitted
spousal
by
time we decided
Cal.3d at
But the
(12
latter fact
389-390.)
Rodriguez.
pp.
was invoked in
our
from a
Rodriguez
justify
departure
directly
decision of this court—a hurdle we do not face here. Even while
contrary
authorities, moreover,
the out-of-state
we
emphasizing
warned
expressly
“
we should be mindful of the trend
‘our decision
not
is
although
”
reached
the crowd.’
(Id.,
392.)
by process
following
When that
direction,
crowd is
in the
we have not
marching
wrong
heretofore hesitated to break
I
ranks and strike out on our own. need not
list the
instances in which this court has initiated new trends in the
many
law of
torts
of the courts to
personal
extending
protection
A
classes of accident victims.
sufficient
is
neglected
previously
example
v. Christian
deal here with a cause action “for damages, solely intangible 450.) of with of claims and (Ante, problems multiplication liability.” p. also these have not been in But Rodriguez, they grounds only repudiated faced with an of Rowland: in that case we were likewise miss point rule essential of our sister we their rejected unanimity jurisdictions, yet California our for because we believed it to be modern “contrary social mores and 118.) humanitarian values.” Cal.2d at We would (69 p. to be do well those in hand. same values the task at guided by between I that there is no conflict conclude reasoning escaping of Yet the and the letter and herein Rodriguez. of spirit majority One of decision. can reaffirm the that only holding repeatedly majority the claimed inade- true motivation neither that infer majority’s loss, this nor the of for of difficulty monetary compensation quacy These nor the of disproportionate liability. measuring danger damages, to lend an mere are logic window-dressing, designed appearance exercise of the is in fact a what discretionary judicial purely objectivity The to limit the of common law tortfeasors. liability potential power their actual incentive earlier in the when opinion, they suggest majority husband, children, that victim has not reason only foreseeably “brothers, cousins, friends, sisters, inlaws, but also colleagues, parents, who will be her No and other acquaintances deprived companionship. that all of action loss of one right suggests persons possess [the consortium; be all that somewhere a line must drawn.” agree victim’s] 446.) (Ante, p. must,
I but it I cannot subscribe to the ad agree majority’s terrorem to draw such a line. argument determining proper place The raise the not to the victim’s spectre spouse cousins, to a but also Gilbert and Sullivan sisters and “his his parade dozens,” he whom reckons then dismiss with up possibility one is observation that no latter be unimpeachable suggesting however, The that such demands will lingers, compensated. implication victim’s are in irresistible if the children become rights recognized the case at bar. in a similar (12 Cal.3d argument Rodriguez
Again rejected on our decision Dillon 402-403), relying principally Legg pp. 72, 441 P.2d 29 A.L.R.3d
68 Cal.2d 1316]. Cal.Rptr; new class of tort cases is that the of those proposed rights teaching merits, rather than on their own should be forthrightly judged plaintiffs As we on where it will all end. by indulging gloomy speculation far, too the law move summarized in “That urged Rodriguez, might words, at all.” (12 excuse for not in other is an moving unacceptable Cal.3d at issue of whether a minor
When we focus on the precise accordingly *18 for child should have a cause action negligent deprivation consortium, difficult. The concede the decision is not readily suffered both “the injury” by plaintiffs reality magnitude [and] above, obstacles to for And as shown herein. recovery (Ante, p. no are less are such damages essentially illusoiy: monetary injury fix in other cases of mental no more difficult to than and adequate of action will have a smaller of this cause and suffering, recognition in than our decision and insurance costs effect on Rodriguez—in- no effect it will have deed, of instances in a substantial proportion “the that the case is controlled It follows at all. general principle reasonable his to exercise caused failure is liable injuries person 69 Cal.2d v. Christian (1968) in the circumstances” (Rowland care supra, a demurrer. be held and the should 112), good against complaint is, short, their no valid excuse for these children There day denying Justice, for our humanitarian values in court. compassion, respect be elsewhere. that the “line” this matter drawn require I would reverse the judgment. Bird, C. 1977. was denied June a rehearing petition
Appellants’ Mosk, J., J., that the should were granted. opinion petition