Summary
recognizing new cause of action for loss of parental consortium after evaluating relevant public policy factors and concluding that factors weigh in favor of recognizing such claim
Summary of this case from Cefaratti v. AranowOpinion
No. 19195.
10-06-2015
Gregoria CAMPOS, Administratrix (Estate of Jose Mauricio Campos), et al. v. Robert E. COLEMAN et al.
John W. Mills, New Haven, for the appellants (plaintiff Mauricio Campos et al.). Kenneth H. Naide, with whom, on the brief, was John A. Kiernan, pro hac vice, for the appellees (defendants). ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.
John W. Mills, New Haven, for the appellants (plaintiff Mauricio Campos et al.).
Kenneth H. Naide, with whom, on the brief, was John A. Kiernan, pro hac vice, for the appellees (defendants).
ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.
Opinion
PALMER, J.
1 In Mendillo v. Board of Education, 246 Conn. 456, 461, 495–96, 717 A.2d 1177 (1998), this court declined to recognize a derivative cause of action for loss of parental consortium by a minor child. The primary issue presented by this case is whether we should overrule this holding in Mendillo. We conclude that we should.
A cause of action for loss of parental consortium arises when a tortfeasor causes injuries to the parent of a minor child, and those injuries result in “the loss [to the child] of [the] parent's love, care, companionship and guidance....” (Internal quotation marks omitted.) Mendillo v. Board of Education, supra, 246 Conn. at 478, 717 A.2d 1177.
The traditional nuclear family has become a minority in America. In fact, presently, only 20 percent of households would be considered traditional or nuclear families, that is, a husband and wife plus children. See J. Walter Thompson Intelligence, “Meet the New Family” (September, 2014) pp. 6–7, available at https://d3ftitl17j4lal.cloudfront.net/b49a88b0–5573–4347–80e8–55300923190f–all_documents.pdf (last visited September 21, 2015). Among the alternative family forms are cohabiting couples, same-sex couples, single parent households, and extended family (or multigenerational) households. See J. Merrill, note, “Two Steps Behind: The Law's Struggle To Keep Pace with the Changing Dynamics of the American Family,” 2009 Utah L. Rev. 557, 558. These changing family structures make weighing public policies regarding family concerns more difficult than ever, and such issues should be left to the elected branches of government.
The named plaintiff, Gregoria Campos, in her individual capacity and in her capacity as administratrix of the estate of her late husband, Jose Mauricio Campos (decedent), and the Campos' three children, Mauricio Campos, Jose Ernesto Campos and Jose Eduardo Campos (Campos children), brought this action against the defendants, Robert E. Coleman and LQ Management, LLC (LQ Management). The plaintiffs alleged in their complaint that Coleman negligently had caused the decedent's death and included claims for the Campos children's loss of parental consortium. The defendants filed a motion to strike the loss of parental consortium claims in accordance with Mendillo, which the trial court granted. Thereafter, a jury returned a verdict for the decedent's estate on the wrongful death claim and for Gregoria Campos on her loss of spousal consortium claim, and the trial court rendered judgment in accordance with the verdict. The Campos children then filed this appeal, contending that we should overrule Mendillo and allow them to pursue their claims for loss of parental consortium. We agree with the Campos children that we should recognize a cause of action by a minor child for loss of parental consortium resulting from an injury to a parent, subject to certain limitations.
La Quinta Inn and Suites was named as a defendant in the plaintiffs' original complaint, but the trial court ultimately granted the defendants' motion to strike the claims against that defendant, which is not a party to this appeal. We hereinafter refer to Coleman and LQ Management collectively as the defendants.
I acknowledge that the plaintiffs argue that the cause of action for loss of parental consortium should include damages arising from their father's injuries sustained prior to his death and damages arising from his death. However, that does not change the fact that the two causes of action cannot be conflated. The majority rightly concludes that we cannot allow the latter claim, and, therefore, I am concerned only with the former.
The Campos children were all over the age of majority when this action was filed.
See Fla. Stat. Ann. § 768.0415 (West 2011); Iowa Code Ann. § 613.15 (West 1999); La. Civ.Code Ann. art. 2315(B) (2008); R.I. Gen. Laws § 9–1–41(b) (2012); Hibpshman v. Prudhoe Bay Supply, Inc., 734 P.2d 991, 997 (Alaska 1987); Villareal v. Dept. of Transportation, 160 Ariz. 474, 477, 774 P.2d 213 (1989); Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 516, 413 N.E.2d 690 (1980); Berger v. Weber, 411 Mich. 1, 13, 17, 303 N.W.2d 424 (1981); Pence v. Fox, 248 Mont. 521, 527, 813 P.2d 429 (1991); Gallimore v. Children's Hospital Medical Center, 67 Ohio St.3d 244, 255, 617 N.E.2d 1052 (1993); Williams v. Hook, 804 P.2d 1131, 1138 (Okla.1990); Reagan v. Vaughn, 804 S.W.2d 463, 467 (Tex.1990), modified on other grounds, Texas Supreme Court, Docket No. C–9548 (Tex. March 6, 1991); Hay v. Medical Center Hospital, 145 Vt. 533, 545, 496 A.2d 939 (1985); Ueland v. Pengo Hydra–Pull Corp., 103 Wash.2d 131, 140, 691 P.2d 190 (1984); Belcher v. Goins, 184 W.Va. 395, 406, 400 S.E.2d 830 (1990); Theama v. Kenosha, 117 Wis.2d 508, 527, 344 N.W.2d 513 (1984); Nulle v. Gillette–Campbell County Joint Powers Fire Board, 797 P.2d 1171, 1176 (Wyo.1990).The majority notes that twenty jurisdictions recognize the cause of action that it creates today. I do not agree with its characterization of the law in Minnesota, New Mexico, and South Dakota.The majority cites Lefto v. Hoggsbreath Enterprises, Inc., 567 N.W.2d 746 (Minn.App.1997), aff'd, 581 N.W.2d 855 (Minn.1998), to support its claim that Minnesota recognizes a limited loss of parental consortium claim. In Lefto, however, the Minnesota Supreme Court, which affirmed the decision of the Minnesota Court of Appeals, did not determine that the child could assert a claim for loss of parental consortium. See Lefto v. Hoggsbreath Enterprises, Inc., 581 N.W.2d 855, 857–58 (Minn.1998). Instead, that court interpreted Minnesota's dram shop law and concluded that the child in question could recover damages under that law for injuries the defendant caused to her mother's fiancé, with whom the mother and her daughter had been cohabiting. Id., at 856–58. The majority cannot seriously contend that allowing recovery under a dram shop law is the same as recognizing a cause of action for loss of parental consortium, even if it only claims that it is a similar cause of action. Moreover, the Minnesota Supreme Court previously had expressly rejected a claim for loss of parental consortium. Salin v. Kloempken, 322 N.W.2d 736, 742 (Minn.1982) (“[w]e conclude ... that ... a new cause of action on behalf of a child for the loss of parental consortium should not be recognized”).Similarly, the majority cites a case decided by the New Mexico Court of Appeals, Brenneman v. Board of Regents, 135 N.M. 68, 84 P.3d 685 (App.), cert. denied, 135 N.M. 51, 84 P.3d 668 (2003). In Brenneman, as in the Lefto case in Minnesota, the court was interpreting an unrelated statute, namely, New Mexico's Tort Claims Act. See id., at 69, 84 P.3d 685. The court in Brenneman concluded: “The plain language of the [Tort Claims] Act, [the] cases interpreting it, and its legislative history all indicate that loss of consortium damages should be recoverable [there]under....” Id., at 72, 84 P.3d 685. That case says nothing about allowing claims for loss of parental consortium that are brought independently of the New Mexico Tort Claims Act. At best, it can be said that the law in New Mexico is unclear; it certainly cannot be argued that New Mexico has generally recognized a cause of action for the loss of parental consortium.With respect to South Dakota, the majority cites Zoss v. Dakota Truck Underwriters, 590 N.W.2d 911 (S.D.1999), a wrongful death case. See id., at 912. The majority is correct that South Dakota allows a child to “recover [the] pecuniary value of [the] loss of society and companionship [of the parent], which includes such things as protection, guidance, advice and assistance....” Footnote 9 of the majority opinion, quoting Zoss v. Dakota Truck Underwriters, supra, at 914. The point the majority fails to understand, however, is that such recovery is limited to cases involving the wrongful death of the parent. See Zoss v. Dakota Truck Underwriters, supra, at 914. In fact, the court in Zoss seemed to suggest that there is no claim for loss of parental consortium when it defined consortium as “a right growing out of the marital relationship....” (Internal quotation marks omitted.) Id. Although I cannot say with certainty that South Dakota has rejected a cause of action for loss of parental consortium arising out of a parent's nonfatal injury, the majority certainly cannot claim that it has recognized such a cause of action or a similar cause of action.
The facts underlying this case are tragic but straightforward. On September 15, 2008, the decedent was riding a bicycle on Westfield Street in the town of West Haven when he was struck by a motor vehicle that was owned by LQ Management and operated by Coleman. The decedent suffered severe injuries, resulting in his death three days later, on September 18, 2008.
Thereafter, Gregoria Campos and the Campos children filed an eight count complaint alleging, inter alia, that (1) Coleman had negligently caused the decedent's death, thereby entitling the decedent's estate to damages under the wrongful death statute, General Statutes § 52–555, (2) LQ Management also was liable for Coleman's negligence because it owned the motor vehicle that Coleman was driving and Coleman had been driving it with LQ Management's permission, (3) Gregoria Campos was entitled to damages for loss of spousal consortium, and (4) the Campos children were entitled to damages for loss of parental consortium. The defendants filed a motion to strike the claims for loss of parental consortium, as well as other claims not relevant to this appeal, and the trial court granted the motion as to the loss of parental consortium claims. The complaint was amended in accordance with that ruling.
The jury ultimately returned a verdict for the decedent's estate on the wrongful death claim and awarded damages in the amount of $2,948,000. In addition, the jury found that Gregoria Campos was entitled to damages for loss of spousal consortium in the amount of $1 million. The jury also found that the decedent had been 42 percent contributorily negligent and, accordingly, reduced the damages for the wrongful death claim to $1,709,840 and the damages for the loss of spousal consortium claim to $580,000. The trial court rendered judgment in accordance with the jury verdict and rendered judgment thereon.
23 This appeal by the Campos children followed. They claim that, although the trial court correctly determined that, in light of this court's decision in Mendillo, the defendants were entitled to judgment as a matter of law on their claims for loss of parental consortium, Mendillo was incorrectly decided, and we therefore should overrule it. We are persuaded by this claim.
The Campos children appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51–199(c) and Practice Book § 65–2.
See Patterson v. Hays, 623 So.2d 1142, 1146 (Ala.1993); Lewis v. Rowland, 287 Ark. 474, 478–79, 701 S.W.2d 122 (1985); Borer v. American Airlines, Inc., 19 Cal.3d 441, 451, 453, 563 P.2d 858, 138 Cal.Rptr. 302 (1977); Lee v. Dept. of Health, 718 P.2d 221, 233–34 (Colo.1986); Mendillo v. Board of Education, supra, 246 Conn. at 461, 477, 717 A.2d 1177; Washington v. Washington Hospital Center, 579 A.2d 177, 179 n. 1 (D.C.1990); W.J. Bremer Co. v. Graham, 169 Ga.App. 115, 116–17, 312 S.E.2d 806 (1983), cert. denied, 252 Ga. 36, 312 S.E.2d 787 (1984); Halberg v. Young, 41 Haw. 634, 646 (1957); Green v. A.B. Hagglund & Soner, 634 F.Supp. 790, 796–97 (D.Idaho 1986); Karagiannakos v. Gruber, 274 Ill.App.3d 155, 158, 210 Ill.Dec. 737, 653 N.E.2d 932, appeal denied, 164 Ill.2d 565, 214 Ill.Dec. 322, 660 N.E.2d 1271 (1995); Dearborn Fabricating & Engineering Corp. v. Wickham, 551 N.E.2d 1135, 1139 (Ind.1990); Klaus v. Fox Valley Systems, Inc., 259 Kan. 522, 531, 912 P.2d 703 (1996); Lambert v. Franklin Real Estate Co., 37 S.W.3d 770, 780 (Ky.App.2000); Durepo v. Fishman, 533 A.2d 264, 264–66 (Me.1987); Gaver v. Harrant, 316 Md. 17, 32–33, 557 A.2d 210 (1989); Salin v. Kloempken, 322 N.W.2d 736, 742 (Minn.1982); Thompson v. Love, 661 So.2d 1131, 1135 (Miss.1995); Powell v. American Motors Corp., 834 S.W.2d 184, 191 (Mo.1992); Guenther ex rel. Guenther v. Stollberg, 242 Neb. 415, 421, 495 N.W.2d 286 (1993); General Electric Co. v. Bush, 88 Nev. 360, 368, 498 P.2d 366 (1972); Harrington v. Brooks Drugs, Inc., 148 N.H. 101, 104, 808 A.2d 532 (2002); Russell v. Salem Transportation Co., 61 N.J. 502, 504, 506, 295 A.2d 862 (1972); DeAngelis v. Lutheran Medical Center, 58 N.Y.2d 1053, 1055, 449 N.E.2d 406, 462 N.Y.S.2d 626 (1983); Vaughn v. Clarkson, 324 N.C. 108, 111, 376 S.E.2d 236 (1989); Hastings v. James River Aerie No. 2337–Fraternal Order of Eagles, 246 N.W.2d 747, 753 (N.D.1976); Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543, 563, 567, 652 P.2d 318 (1982); Steiner ex rel. Steiner v. Bell Telephone Co., 358 Pa.Super. 505, 522, 517 A.2d 1348 (1986), aff'd, 518 Pa. 57, 540 A.2d 266 (1988); Taylor v. Medenica, 324 S.C. 200, 222, 479 S.E.2d 35 (1996); Taylor v. Beard, 104 S.W.3d 507, 511 (Tenn.2003).The majority cites a case from the United States District Court for the District of Hawaii, namely, Marquardt v. United Airlines, Inc., 781 F.Supp. 1487 (D.Haw.1992); see footnote 11 of the majority opinion; which surmises that the Hawaii Supreme Court would overrule its earlier decision declining to recognize a cause of action for the loss of parental consortium. See Marquardt v. United Airlines, Inc., supra, at 1492. Until the Hawaii Supreme Court does so, however, the law in Hawaii is that no such cause of action exists.
Justice Zarella contends in his dissenting opinion that “[i]t is not the duty of this court to make law. That is a task properly left to the legislature.” It is black letter law, however, that “[t]he issue of whether to recognize a common-law cause of action ... is a matter of policy for the court to determine based on the changing attitudes and needs of society.” (Internal quotation marks omitted.) Mueller v. Tepler, 312 Conn. 631, 650, 95 A.3d 1011 (2014). Moreover, the weighing of public policies in the present case is no different in kind than the weighing that this court has conducted in numerous cases. See, e.g., id., at 649–58, 95 A.3d 1011 (recognizing as matter of public policy that member of same-sex couple who would have been married but for legal bar on such marriages can bring loss of consortium claim); Craig v. Driscoll, 262 Conn. 312, 338–40, 813 A.2d 1003 (2003) (recognizing that purveyor who negligently serves liquor to adult patron who, as result of his intoxication, injures another, can be proximate cause of such injuries); Jaworski v. Kiernan, 241 Conn. 399, 412, 696 A.2d 332 (1997) (“[A]s a matter of policy, it is appropriate to adopt a standard of care imposing on the defendant, a participant in a team contact sport, a legal duty to refrain from reckless or intentional conduct. Proof of mere negligence is insufficient to create liability.”); Clohessy v. Bachelor, 237 Conn. 31, 49, 675 A.2d 852 (1996) (“[w]e ... conclude, on the basis of sound public policy and principles of reasonable foreseeability, that a plaintiff should be allowed to recover, within certain limitations, for emotional distress as a result of harm done to a third party”); Hopson v. St. Mary's Hospital, 176 Conn. 485, 493, 408 A.2d 260 (1979) (recognizing cause of action for loss of spousal consortium). Indeed, we already have engaged in the very same weighing process in Mendillo v. Board of Education, supra, 246 Conn. at 480–90, 495–96, 717 A.2d 1177. We merely reach a different conclusion in the present case. If the legislature disagrees with our conclusion, it may, of course, legislatively abrogate our decision or, alternatively, modify our decision as it deems appropriate.
I, like the majority, have not found any cases or statutes concerning this issue in Delaware, Utah, or Virginia, and, for the reasons I stated in footnote 3 of this opinion, I find the law in New Mexico and South Dakota to be unclear.
In Mendillo, a majority of this court ultimately declined to recognize a minor child's claim for loss of parental consortium resulting from a tortfeasor's conduct. Mendillo v. Board of Education, supra, 246 Conn. at 461, 495–96, 717 A.2d 1177. At the outset of our analysis of this issue in Mendillo, however, we candidly acknowledged that “many of [the arguments in support of recognizing such a claim] have considerable appeal....” Id., at 480, 717 A.2d 1177. In particular, we recognized that a minor child who, by virtue of a tortfeasor's conduct, has been deprived of the love and companionship of a parent “has suffered a genuine injury, and a serious one.” (Internal quotation marks omitted.) Id., at 478, 717 A.2d 1177. Underscoring this point, we explained that “we [had] recently reaffirmed that it is our state's public policy to promote the welfare of the family, and that the interest of children in not being dislocated from the emotional attachments that derive from the intimacy of daily association ... with the parent has constitutional significance.” (Internal quotation marks omitted.) Id., quoting Pamela B. v. Ment, 244 Conn. 296, 310, 709 A.2d 1089 (1998).
We also acknowledged the argument made by the plaintiffs in Mendillo that “permitting compensation for loss of parental consortium will enable the emotionally injured child to secure the therapy that will, in turn, help to heal the wounds caused by his or her loss.... [N]ot only will the minor child benefit, but society will also benefit if the child is able to function without emotional handicap. This may well offset any increase in insurance premiums.” (Internal quotation marks omitted.) Mendillo v. Board of Education, supra, 246 Conn. at 479, 717 A.2d 1177.
As we further observed in Mendillo, another argument favoring the recognition of a derivative cause of action for parental consortium is the fact that this court already had recognized analogous causes of action for loss of spousal consortium; Hopson v. St. Mary's Hospital, 176 Conn. 485, 493, 408 A.2d 260 (1979); and bystander emotional distress. Clohessy v. Bachelor, 237 Conn. 31, 49, 675 A.2d 852 (1996). With respect to the former, we acknowledged the view, as expressed by the Supreme Court of Washington, that “permitting a husband or wife but not children to recover for loss of consortium erroneously suggests that an adult is more likely to suffer emotional injury than a child”; (internal quotation marks omitted) Mendillo v. Board of Education, supra, 246 Conn. at 480, 717 A.2d 1177, quoting Ueland v. Pengo Hydra–Pull Corp., 103 Wash.2d 131, 134, 691 P.2d 190 (1984); and noted the contention of the plaintiffs in Mendillo that, following our recognition of a derivative cause of action for spousal consortium in Hopson, the “logical [next step] from ... Hopson['s] protect [ion of] the emotional or sentimental aspects of the husband-wife relationship [is the] protection of the similar aspects of the parent-child relationship.” (Internal quotation marks omitted.) Mendillo v. Board of Education, supra, at 479, 717 A.2d 1177. With respect to our decision in Clohessy, “in which we recognized, for the first time and subject to certain limitations, that a parent and a sibling can recover damages for the emotional anguish they had [suffered] by witnessing the parent's other young child being fatally injured by the defendant's negligence”; id.; we noted the argument of the plaintiffs in Mendillo that the “[a]pplication of this court's logic in Clohessy to the question of whether a tortfeasor's liability should extend to ... loss of [parental] consortium properly instructs that the time is similarly ripe to recognize such cause of action in this state.” (Internal quotation marks omitted.) Id.
Finally, we observed what the plaintiffs in Mendillo had “characterize[d] as the emerging national trend recognizing ... [a] cause of action [for loss of parental consortium]....” (Internal quotation marks omitted.) Id., at 479–80, 717 A.2d 1177. We further observed that, in support of this argument, the plaintiffs in Mendillo had “cite[d] to a number of jurisdictions that have, since 1980, recognized a cause of action for loss of parental consortium.” Id., at 480, 717 A.2d 1177.
Notwithstanding the conceded force of these arguments, we ultimately declined to recognize a cause of action for parental consortium, “primarily on the basis of: [1] the fact that recognition of the cause of action would require arbitrary limitations; [2] the additional economic burden that recognition would impose on the general public; [3] the uncertainty that recognition would yield significant social benefits; [4] the substantial risk of double recovery; and [5] the weight of judicial authority.” Id., at 485, 717 A.2d 1177. Justice Berdon issued a concurring and dissenting opinion, joined by Justice Katz, in which he disputed these points in maintaining that the court should adopt this cause of action because its benefits outweighed its costs. See id., at 514, 717 A.2d 1177 (Berdon, J., concurring in part and dissenting in part).
Upon reconsideration of the relevant considerations, including the five factors that this court found determinative in Mendillo, we now agree with the concurring and dissenting opinion in Mendillo that the public policy factors favoring recognition of a cause of action for loss of parental consortium outweigh those factors disfavoring recognition. More specifically, we agree that the unique emotional attachment between parents and children, the importance of ensuring the continuity of the critically important services that parents provide to their children, society's interest in the continued development of children as contributing members of society, and the public policies in favor of compensating innocent parties and deterring wrongdoing provide compelling reasons to recognize such a cause of action. With respect to the countervailing policy considerations on which we relied in Mendillo, we now are persuaded for the following reasons that our concerns were overstated.
We first address our determination in Mendillo that recognizing such a cause of action would require the court “to impose arbitrary limitations on the scope of the cause of action in order to avoid the creation of a practically unlimited class of potential plaintiffs.” Id., at 485, 717 A.2d 1177. In Mendillo, we reasoned that “there are other formally recognized relationships ... [such as] siblings, grandparent and grandchild, and aunt or uncle and nephew or niece ... that could well, depending on the case, present equally strong claims of loss of consortium. Similarly, there is nothing in the underlying rationale for recognition of the claim to confine it to minor children.... There undoubtedly are adult children who suffer a genuine loss of consortium by virtue of their parent's injury.” (Citation omitted; emphasis in original; footnote omitted.) Id., at 485–86, 717 A.2d 1177.
Although we acknowledge that strong emotional attachments frequently arise in all of these relationships, we do not agree that the relationships “present equally strong claims of loss of consortium” as those arising from the relationship between a minor child and a parent. Id., at 485, 717 A.2d 1177. Almost by definition, the familial relationships referred to in Mendillo are more attenuated and derivative than the parent-child relationship because the relationship between siblings, between a grandparent and a grandchild, and between an uncle or an aunt and a niece or a nephew arises through the parent-child relationship. Indeed, “[t]he parent-child relationship is ... the wellspring from which other family relationships derive....” (Internal quotation marks omitted.) Id., at 500, 717 A.2d 1177 (Berdon, J., concurring in part and dissenting in part), quoting Villareal v. Dept. of Transportation, 160 Ariz. 474, 478, 774 P.2d 213 (1989); see also Mendillo v. Board of Education, supra, at 500, 717 A.2d 1177 (Berdon, J., concurring in part and dissenting in part) (“the parent-child relationship ... is the earliest and most hallowed of the ties that bind humanity” [internal quotation marks omitted] ), quoting Nulle v. Gillette–Campbell County Joint Powers Fire Board, 797 P.2d 1171, 1173 (Wyo.1990). Moreover, the relationship between a parent and a minor child is the only one of these relationships that gives rise to legally enforceable rights. See, e.g., In re Juvenile Appeal (Docket No. 9489), 183 Conn. 11, 15, 438 A.2d 801 (1981) (“ ‘[t]he commonly understood general obligations of parenthood entail these minimum attributes: [1] express love and affection for the child; [2] express personal concern over the health, education and general well-being of the child; [3] the duty to supply the necessary food, clothing, and medical care; [4] the duty to provide an adequate domicile; and [5] the duty to furnish social and religious guidance,’ ” and failure to meet these obligations may result in termination of parental rights).
Of course, we do not suggest that the mere fact that a child's biological or adoptive parent has been injured automatically results in a compensable injury to the child. When the injured parent provided no affection, care, concern, guidance or services to the child prior to the injury, the child cannot establish that he or she was harmed by the injury, which is a required element of any tort claim.
See Fla. Stat. Ann. § 768.0415 (West 2011); La. Civ.Code Ann. art. 2315(B) (2008); R.I. Gen. Laws § 9–1–41(b) (2012); see also Iowa Code Ann. § 613.15 (West 1999) (allowing for recovery of lost value of services and support of injured parent, but claim belongs to injured parent, not child).The Iowa Supreme Court has declined to recognize a cause of action for loss of parental consortium that can be brought independently by the child. See Audubon–Exira Ready Mix, Inc. v. Illinois Central Gulf Railroad Co., 335 N.W.2d 148, 152 (Iowa 1983). Instead, Iowa allows the injured parent to recover for the lost value of services and support that the injured parent would have provided to the child but for the injury. See Iowa Code Ann. § 613.15 (West 1999).
We also disagree with the court's conclusion in Mendillo that the distinction between minor children and adult children is arbitrary. Although we recognize that many adults continue to receive affection and guidance from their parents well past the age of majority, adults do not have the same legal entitlements with respect to their parents as minor children; see id.; and are presumptively fully autonomous and responsible for their own well-being. See, e.g., Hibpshman v. Prudhoe Bay Supply, Inc., 734 P.2d 991, 997 (Alaska 1987) (loss of parental consortium claims are limited to minor children); Theama v. Kenosha, 117 Wis.2d 508, 527, 344 N.W.2d 513 (1984) ( “[w]e ... limit recovery under [a] cause of action [for loss of parental consortium] to [minor children] ... because the minor is [the] one whose relationship is most likely to be severely affected by a negligent injury to the parent”); Nulle v. Gillette–Campbell County Joint Powers Fire Board, supra, 797 P.2d at 1176 (loss of parental consortium claims are limited to minor children).
We further disagree with the suggestion of the court in Mendillo that adopting a cause of action for loss of parental consortium would require the court to arbitrarily exclude such claims by, for example, stepchildren. See Mendillo v. Board of Education, supra, 246 Conn. at 485, 717 A.2d 1177. For purposes of the present case, we need not decide whether a stepchild who has not been legally adopted by the injured stepparent should be permitted to bring a claim for loss of consortium. We recognize, however, that, in modern society, many children have parental-type relationships with adults who are neither their biological parents nor their adoptive parents. We further recognize that children who are deprived of such relationships are likely to suffer harm no less severe than the harm suffered by biological and adoptive children in similar circumstances. As we indicated, because the question of whether such children may bring a loss of consortium claim is not presented by this appeal, we leave it for another day. We are not persuaded, however, that this issue, however it ultimately may be resolved, warrants denying all children the right of recovery for loss of parental consortium.
Moreover, we reiterate that the legislature is free to take whatever action it might wish to take with respect to this and all other issues concerning the recognition and scope of the cause of action for loss of parental consortium. See footnote 5 of this opinion.
See Hibpshman v. Prudhoe Bay Supply, Inc., 734 P.2d 991, 994 (Alaska 1987); Villareal v. Dept. of Transportation, 160 Ariz. 474, 479, 774 P.2d 213 (1989); Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 515, 413 N.E.2d 690 (1980); Berger v. Weber, 411 Mich. 1, 13, 303 N.W.2d 424 (1981); Pence v. Fox, 248 Mont. 521, 526–27, 813 P.2d 429 (1991); Gallimore v. Children's Hospital Medical Center, supra, 67 Ohio St.3d at 250–51, 617 N.E.2d 1052; Williams v. Hook, 804 P.2d 1131, 1136 (Okla.1990); Reagan v. Vaughn, 804 S.W.2d 463, 465 (Tex.1990), modified on other grounds, Texas Supreme Court, Docket No. C–9548 (Tex. March 6, 1991); Hay v. Medical Center Hospital, 145 Vt. 533, 537, 496 A.2d 939 (1985); Ueland v. Pengo Hydra–Pull Corp., 103 Wash.2d 131, 134, 691 P.2d 190 (1984); Belcher v. Goins, 184 W.Va. 395, 403, 400 S.E.2d 830 (1990); Nulle v. Gillette–Campbell County Joint Powers Fire Board, 797 P.2d 1171, 1172 (1990).
For the foregoing reasons, our recognition of a cause of action by minor children for the loss of parental consortium does not require the imposition of arbitrary limitations on such a cause of action. The child-parent relationship is unique in its emotional closeness, in its value to society and in its generation of enforceable legal rights and obligations. By limiting loss of familial consortium claims to cases involving the impairment of that relationship, we are merely recognizing the natural distinction between that relationship and other familial relationships. See id., at 513, 717 A.2d 1177 (Berdon, J., concurring in part and dissenting in part) (“[t]he distinction between the interests of children and those of other relatives is rational and easily applied” [internal quotation marks omitted] ).
We next address our determination in Mendillo that recognizing a cause of action for loss of parental consortium by minor children would impose undue societal costs and would not yield significant social benefits. Id., at 487, 717 A.2d 1177. We observed in Mendillo that, unlike loss of spousal consortium claims, loss of parental consortium claims may be raised by multiple children, and the resulting costs will be borne by society as a whole through increased insurance premiums. Id., at 487–88, 717 A.2d 1177. We further stated that “the proposed offsetting value asserted by the minor plaintiffs—namely, that recovery will give the injured minor child the wherewithal to heal [his or] her wounds, thereby helping both [the child] and society at large—is too conjectural....” Id., at 488, 717 A.2d 1177.
We did not explain in Mendillo, however, why damages from loss of parental consortium claims are any more conjectural than other types of noneconomic damages, such as damages for pain and suffering and loss of spousal consortium. See Hopson v. St. Mary's Hospital, supra, 176 Conn. at 494, 408 A.2d 260 (rejecting argument that damages for loss of spousal consortium are too remote or indirect to be recognized because “[t]he task of computing damages for ... loss of consortium is no more difficult for a judge or jury than arriving at an award for pain and suffering”). Rather, it appears that this determination in Mendillo was based on the premise that a minor child's loss of parental consortium is not essentially different, or more worthy of compensation, from the loss suffered by other family members, or the losses suffered by plaintiffs in other cases involving third-party liability, which involve “the far reaches of foreseeability.” Mendillo v. Board of Education, supra, 246 Conn. at 493, 717 A.2d 1177; see id. (discussing cases in which this court previously has rejected claims of third-party liability and concluding that, “if the presence of a genuine injury were legally sufficient to impose [third-party] liability, the only limitations on such liability would be the far reaches of foreseeability”). On the contrary, the parent-child relationship is essentially different from other familial relationships, and the inability of a parent who has suffered a physical or mental injury to provide the “love, care, companionship and guidance” to minor children that he or she otherwise would have provided; (internal quotation marks omitted) id., at 478, 717 A.2d 1177; is an eminently foreseeable and uniquely harmful consequence of such an injury. See id., at 484, 717 A.2d 1177 (“as a general matter, it is foreseeable that causing serious injury to a parent may have deleterious effects on the parent's minor children”); see also id., at 499, 717 A.2d 1177 (Berdon, J., concurring in part and dissenting in part) (“[i]t is common knowledge that a parent who suffers serious physical or mental injury is unable to give his minor children the parental care, training, love and companionship in the same degree as he might have but for the injury” [internal quotation marks omitted] ), quoting Hoffman v. Dautel, 189 Kan. 165, 168, 368 P.2d 57 (1962). “Although a monetary award may be a poor substitute for the loss of a parent's society and companionship, it is the only workable way that our legal system has found to ease the injured party's tragic loss.” Theama v. Kenosha, supra, 117 Wis.2d at 523, 344 N.W.2d 513; see also id. (damages for loss of parental consortium may be used to procure domestic services and psychiatric help for child). We further note that, if no compensation is available, the harm caused by the loss of parental consortium may not be limited to the child and may have wider societal implications. See Mendillo v. Board of Education, supra, at 511, 717 A.2d 1177 (Berdon, J., concurring in part and dissenting in part) (“development of a child's character, disposition, and abilities [has] a corresponding impact on society” [internal quotation marks omitted] ). We acknowledge that recognizing this cause of action will impose societal costs, as does the recognition of virtually any cause of action, but we now believe that the benefits of recognizing a cause of action for loss of parental consortium are not conjectural and outweigh the costs.
With respect to the court's concern in Mendillo that a cause of action for loss of parental consortium “would entail adding as many companion claims as the injured parent had minor children, each such claim entitled to separate appraisal and award”; (internal quotation marks omitted) id., at 487, 717 A.2d 1177; this concern would be adequately addressed by allowing the tortfeasor to argue that loss of parental consortium damages ordinarily will be smaller per child the greater number of siblings a child has. This is because, in large families, older children frequently take on parental responsibilities for their younger siblings, and parents ordinarily have less time per child to provide training and companionship. Cf. Reagan v. Vaughn, 804 S.W.2d 463, 467 (Tex.1990) (in determining amount of damages, fact finder may consider whether other “consortium giving relationships are available to the child”), modified on other grounds, Texas Supreme Court, Docket No. C–9548 Tex. March 6, 1991). Although the total award for loss of parental consortium damages may be larger when an injured parent has numerous children, this merely reflects the fact that, overall, the scope of the injury is greater.
We do not suggest that all children necessarily receive the same amount of care and companionship from their parents. For example, some of an injured parent's children may have a parental relationship with another person who fills many of the child's needs, while others do not, or one of the children may have special needs that require more care and attention from a parent. Consequently, there may be circumstances in which some children will be entitled to a greater award of damages for loss of parental consortium than other children.
These are but two examples of similar relationships for which liability under the majority's newly created cause of action could ultimately exist. Other possibilities include aunts and uncles and nieces and nephews, stepparents and stepchildren, foster parents and foster children, and siblings, to name only a few more. In each of these relationships, it is conceivable that the adult, although not the child's natural or legal parent, stands in loco parentis.
Finally, we address our conclusion in Mendillo that recognizing a cause of action for loss of parental consortium “would create a significant risk of double recovery.” Mendillo v. Board of Education, supra, 246 Conn. at 489, 717 A.2d 1177. In support of this conclusion, we explained that the injured parent “would be entitled, as part of [his or] her own damages for loss of life's ordinary activities, to recover for [the] inability to care for [his or] her minor children.” Id. Although a parent might be able to recover for damages for the loss of the ability to provide services to his or her children in a case in which a loss of parental consortium claim has not been raised, this court held in Hopson v. St. Mary's Hospital, supra, 176 Conn. at 485, 408 A.2d 260, that loss of spousal consortium encompasses “both loss of services [to the other spouse, the value of which the injured spouse could recover in his or her own name] and loss of conjugal affection....” Id.; see also id. (services provided by spouse and loss of conjugal affection both constitute spousal consortium, and “courts commit error when they attempt to distinguish between the different elements of [this] conceptualistic unity” [internal quotation marks omitted] ). Similarly, parental consortium consists of both a parent's services to his or her children, such as cooking, driving or housekeeping, as well as such intangibles as the parent's “love, care, companionship and guidance....” (Internal quotation marks omitted.) Mendillo v. Board of Education, supra, at 478, 717 A.2d 1177. To prevent double recovery under this approach, it would be sufficient to require the parent's claim and the child's claim to be joined in the same proceeding and to require the trial court to instruct the jury that damages for loss of the injured parent's services are recoverable only by the minor child pursuant to the child's loss of parental consortium claim.
Next, we consider the court's assessment of the weight of authority on the question of whether to recognize a cause of action for loss of parental consortium. This court stated in Mendillo that “the overwhelming weight of authority in the nation is against recognition of a cause of action for loss of parental consortium.” Id., at 490, 717 A.2d 1177. Our research reveals, however, that, of the forty-nine other states and the District of Columbia, the vast majority of states have recognized the cause of action, either for cases arising from a parent's injury, or for cases arising from a parent's death, or both. Twenty jurisdictions have recognized, in some form, a cause of action for loss of parental consortium arising from a parent's injury, twenty-six jurisdictions have declined to recognize such a cause of action, and four jurisdictions are either unclear on the issue or have not addressed it. Of the courts that have declined to recognize claims for loss of parental consortium arising from a parent's injury, seven have done so in divided opinions. More significantly, thirty-four jurisdictions have recognized, either judicially or, more commonly, legislatively, a cause of action for loss of parental consortium arising from the wrongful death of a parent. Only five jurisdictions, including this state, have declined to recognize loss of parental consortium claims arising from either an injury to or the death of a parent. Thus, courts in other jurisdictions are divided on the question of whether to recognize a cause of action for loss of parental consortium arising from an injury to the parent, with only a small majority—twenty-six out of fifty—declining to do so, whereas a large majority of states have adopted such a cause of action arising out of the death of a parent, thereby recognizing that “children have a legal entitlement to their parent's society.” Williams v. Hook, 804 P.2d 1131, 1137 (Okla.1990) (“[i]n enacting [a wrongful death statute providing for damages for loss of parental consortium], the [l]egislature has acknowledged that children have a legal entitlement to their parent's society” [footnote omitted] ). Accordingly, we no longer can conclude that the weight of authority supports our holding in Mendillo, much less that it does so overwhelmingly.
See Fla. Stat. Ann. § 768.0415 (West 2011); R.I. Gen. Laws § 9–1–41(b) (2012); Hibpshman v. Prudhoe Bay Supply, Inc., supra, 734 P.2d at 997; Villareal v. Dept. of Transportation, supra, 160 Ariz. at 477, 774 P.2d 213; Higley v. Kramer, 581 So.2d 273, 282–83 (La.App.), cert. denied, 583 So.2d 483 (La.1991); Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 516, 413 N.E.2d 690 (1980); Berger v. Weber, 411 Mich. 1, 13, 17, 303 N.W.2d 424 (1981); Pence v. Fox, 248 Mont. 521, 527, 813 P.2d 429 (1991); Gallimore v. Children's Hospital Medical Center, 67 Ohio St.3d 244, 255, 617 N.E.2d 1052 (1993); Williams v. Hook, 804 P.2d 1131, 1138 (Okla.1990); Reagan v. Vaughn, supra, 804 S.W.2d at 467; Hay v. Medical Center Hospital, 145 Vt. 533, 545, 496 A.2d 939 (1985); Ueland v. Pengo Hydra–Pull Corp., supra, 103 Wash.2d at 140, 691 P.2d 190; Belcher v. Goins, 184 W.Va. 395, 406, 400 S.E.2d 830 (1990); Theama v. Kenosha, supra, 117 Wis.2d at 527, 344 N.W.2d 513; Nulle v. Gillette–Campbell County Joint Powers Fire Board, supra, 797 P.2d at 1176; see also Audubon–Exira Ready Mix, Inc. v. Illinois Central Gulf Railroad Co., 335 N.W.2d 148, 151–52 (Iowa 1983) (damages for loss of parental consortium may be recovered by injured parent on child's behalf and are child's property); Brenneman v. Board of Regents, 135 N.M. 68, 72, 84 P.3d 685 (App.) (“[parental] loss of consortium is exactly the type of damage based [on] the traditional tort concepts of duty that the [l]egislature intended to include” as damages under New Mexico's Tort Claims Act), cert. denied, 135 N.M. 51, 84 P.3d 668 (2003). Some states have adopted an unusual or limited form of the cause of action for loss of parental consortium. See Lefto v. Hoggsbreath Enterprises, Inc., 567 N.W.2d 746, 750 (Minn.App.1997) (child cannot recover for loss of parental consortium but can recover pecuniary damages for “the loss of aid, advice, comfort, and protection” under Minnesota's dram shop law when person in parental role has been injured), aff'd, 581 N.W.2d 855 (Minn.1998); Zoss v. Dakota Truck Underwriters, 590 N.W.2d 911, 914 (S.D.1999) (child cannot recover for loss of parental consortium in wrongful death action but can recover pecuniary value of loss of “the decedent's society and companionship, which includes such things as protection, guidance, advice and assistance,” because pecuniary injury “need not exist only between the time of injury and the time of death”).We note that Mendillo incorrectly identified Florida and Iowa as jurisdictions that do not recognize loss of parental consortium claims. Mendillo v. Board of Education, supra, 246 Conn. at 490, 717 A.2d 1177, citing Zorzos v. Rosen ex rel. Rosen, 467 So.2d 305 (Fla.1985), and Audubon–Exira Ready Mix, Inc. v. Illinois Central Gulf Railroad Co., supra, 335 N.W.2d at 148. Although the court in Zorzos had declined to adopt a cause of action for loss of parental consortium; see Zorzos v. Rosen ex rel. Rosen, supra, at 307; that case was legislatively abrogated in 1988; see 1988 Fla. Laws 973, 974 (c. 88–173, § 1), codified at Fla. Stat. Ann. § 768.0415 (West 2011); and the Iowa Supreme Court had rejected a common-law cause of action for loss of parental consortium only for claims arising from the death of the parent. See Audubon–Exira Ready Mix, Inc. v. Illinois Central Gulf Railroad Co., supra, at 151 (child's common-law loss of parental consortium action arising from death was not recognized because value of “ ‘services decedents might and would have rendered in training and educating their children’ ” is recoverable by parent's estate pursuant to wrongful death statute). The court in Mendillo also failed to recognize that loss of parental consortium claims arising from a parent's injury had been authorized by statute in Rhode Island since 1984. See 1984 R.I. Pub. Laws 140 (c. 64, § 1), codified as amended at R.I. Gen. Laws § 9–1–41(b) (2012). Finally, one of the cases recognizing loss of parental consortium claims was decided after this court issued its decision in Mendillo. See Brenneman v. Board of Regents, supra, 135 N.M. at 72, 84 P.3d 685.
The majority pays mere lip service to the principle of stare decisis, claiming that it may properly overrule Mendillo because, in Hopson v. St. Mary's Hospital, 176 Conn. 485, 494–96, 408 A.2d 260 (1979), we overruled our earlier decision in Marri v. Stamford Street Railroad Co., 84 Conn. 9, 23–24, 78 A. 582 (1911), in which we declined to recognize a claim for loss of spousal consortium. See footnote 16 of the majority opinion. The only commonality between this case and Hopson, however, is that they both deal with consortium claims. In Hopson, this court concluded that its decision and reasoning in Marri were no longer persuasive because “a growing majority of courts have come to recognize a right of action for loss of consortium in either spouse.... The right of a husband to bring an action for loss of consortium has long been acknowledged in a substantial majority of the jurisdictions. The right of the wife ... has now been recognized in many jurisdictions.” (Citation omitted; footnote omitted.) Hopson v. St. Mary's Hospital, supra, at 495, 408 A.2d 260. The conditions that existed in Hopson, however, do not exist in the present case. As I discussed previously, the majority of jurisdictions decline to recognize a claim for loss of parental consortium, and, since our decision in Mendillo, no state has recognized such a claim. Therefore, the logic that compelled the court in Hopson to overrule Marri does not compel this court to overrule Mendillo in the present case.
Johnson v. United States, United States District Court, Docket Nos. 1:14cv220–MHT, 1:14cv221–MHT, 1:14cv222–MHT (M.D.Ala. December 3, 2014); Lewis v. Rowland, 287 Ark. 474, 478–79, 701 S.W.2d 122 (1985); Borer v. American Airlines, Inc., 19 Cal.3d 441, 451, 453, 563 P.2d 858, 138 Cal.Rptr. 302 (1977); Lee v. Dept. of Health, 718 P.2d 221, 233–34 (Colo.1986); Pleasant ex rel. Pleasant v. Washington Sand & Gravel Co., 262 F.2d 471, 473 (D.C.Cir.1958); W.J. Bremer Co. v. Graham, 169 Ga.App. 115, 116–17, 312 S.E.2d 806 (1983), cert. denied, 252 Ga. 36, 312 S.E.2d 787 (1984); Green v. A.B. Hagglund & Soner, 634 F.Supp. 790, 796–97 (D.Idaho 1986); Karagiannakos v. Gruber, 274 Ill.App.3d 155, 158, 210 Ill.Dec. 737, 653 N.E.2d 932, appeal denied, 164 Ill.2d 565, 214 Ill.Dec. 322, 660 N.E.2d 1271 (1995); Dearborn Fabricating & Engineering Corp. v. Wickham, 551 N.E.2d 1135, 1139 (Ind.1990); Klaus v. Fox Valley Systems, Inc., 259 Kan. 522, 531, 912 P.2d 703 (1996); Lambert v. Franklin Real Estate Co., 37 S.W.3d 770, 780 (Ky.App.2000); Durepo v. Fishman, 533 A.2d 264, 264–66 (Me.1987); Gaver v. Harrant, 316 Md. 17, 32–33, 557 A.2d 210 (1989); Thompson v. Love, 661 So.2d 1131, 1135 (Miss.1995); Powell v. American Motors Corp., 834 S.W.2d 184, 191 (Mo.1992); Guenther ex rel. Guenther v. Stollberg, 242 Neb. 415, 421, 495 N.W.2d 286 (1993); General Electric Co. v. Bush, 88 Nev. 360, 368, 498 P.2d 366 (1972); Harrington v. Brooks Drugs, Inc., 148 N.H. 101, 104, 808 A.2d 532 (2002); Russell v. Salem Transportation Co., 61 N.J. 502, 504, 506, 295 A.2d 862 (1972); DeAngelis v. Lutheran Medical Center, 84 App.Div.2d 17, 27, 445 N.Y.S.2d 188 (1981), aff'd, 58 N.Y.2d 1053, 449 N.E.2d 406, 462 N.Y.S.2d 626 (1983); Vaughn v. Clarkson, 324 N.C. 108, 111, 376 S.E.2d 236 (1989); Hastings v. James River Aerie No. 2337–Fraternal Order of Eagles, 246 N.W.2d 747, 753 (N.D.1976); Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543, 563, 567, 652 P.2d 318 (1982); Steiner ex rel. Steiner v. Bell Telephone Co., 358 Pa.Super. 505, 522, 517 A.2d 1348 (1986), aff'd, 518 Pa. 57, 540 A.2d 266 (1988); Taylor v. Medenica, 324 S.C. 200, 222, 479 S.E.2d 35 (1996); Taylor v. Beard, 104 S.W.3d 507, 511 (Tenn.2003).
The majority does not contend that our holding in Mendillo was clearly wrong, nor could it. Indeed, Mendillo could not clearly have been wrong because, when it was decided, more than one half of our sister states had expressly declined to recognize a cause of action for loss of parental consortium. See Mendillo v. Board of Education, supra, 246 Conn. at 490–91, 717 A.2d 1177. Moreover, if Mendillo was clearly wrong, then, surely, the legislature would have taken some action in the seventeen years since it was decided. For instance, when this court decided in Craig v. Driscoll, supra, 262 Conn. at 339–40, 813 A.2d 1003, that the state's Dram Shop Act did not preclude a common-law negligence action against a purveyor of alcoholic beverages that serves liquor to an intoxicated patron who subsequently injures a third party, the legislature took only about four months to effectively overrule this court's holding in that case. See Public Acts 2003, No. 03–91, § 1.
We have found no cases addressing the issue in the states of Delaware, Utah and Virginia. The law in Hawaii is unclear. The Supreme Court of Hawaii declined to recognize a cause of action for loss of parental consortium in Halberg v. Young, 41 Haw. 634, 646 (1957), but the United States District Court for the District of Hawaii noted in 1992 that, in light of intervening cases, the Supreme Court of Hawaii would overrule Halberg and recognize the cause of action. Marquardt v. United Airlines, Inc., 781 F.Supp. 1487, 1492 (D.Haw.1992). The Supreme Court of Hawaii has not addressed the issue since the District Court issued its decision in Marquardt.
See Borer v. American Airlines, Inc., 19 Cal.3d 441, 460, 563 P.2d 858, 138 Cal.Rptr. 302 (1977) (Mosk, J., dissenting) (contending that court should recognize cause of action for loss of parental consortium); Durepo v. Fishman, 533 A.2d 264, 266 (Me.1987) (Nichols and Glassman, Js., dissenting) (same); Gaver v. Harrant, 316 Md. 17, 33, 557 A.2d 210 (1989) (Adkins, J., dissenting) (same); Thompson v. Love, 661 So.2d 1131, 1137 (Miss.1995) (McRae, Sullivan and Banks, Js., dissenting) (same); Guenther ex rel. Guenther v. Stollberg, 242 Neb. 415, 421, 495 N.W.2d 286 (1993) (White, J., dissenting) (same); Guenther ex rel. Guenther v. Stollberg, supra, at 426, 495 N.W.2d 286 (Shanahan, J., dissenting) (same); Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543, 574, 652 P.2d 318 (1982) (Lent, C.J., dissenting) (same); Steiner ex rel. Steiner v. Bell Telephone Co., 358 Pa.Super. 505, 524, 517 A.2d 1348 (1986) (Brosky, J., dissenting) (same), aff'd, 518 Pa. 57, 540 A.2d 266 (1988).Four courts that have recognized a cause of action for loss of parental consortium have done so in divided opinions. See Reagan v. Vaughn, supra, 804 S.W.2d at 469 (Hecht, J., concurring and dissenting) (arguing that court should not recognize cause of action for loss of parental consortium arising from injury); Hay v. Medical Center Hospital, 145 Vt. 533, 546, 496 A.2d 939 (1985) (Larrow and Peck, Js., dissenting) (contending that child of injured parent was limited to recovering damages authorized by wrongful death statute because, under that statute, person who is permanently comatose is deemed dead); Ueland v. Pengo Hydra–Pull Corp., supra, 103 Wash.2d at 141–43, 691 P.2d 190 (Dore, J., dissenting) (contending that court should not recognize cause of action for loss of parental consortium); Nulle v. Gillette–Campbell County Joint Powers Fire Board, supra, 797 P.2d at 1176–78 (Thomas, J., dissenting) (same). In another case, certain justices did not agree with the court's decision to recognize a cause of action for loss of parental consortium but contended that the injured parent could be allowed to recover for the cost of “services or companionship that the parent would normally have provided.” Berger v. Weber, 411 Mich. 1, 18, 48–49, 303 N.W.2d 424 (1981) (Levin and Ryan, Js., and Coleman, C.J., dissenting).
The following statutes allow for a cause of action for the loss of parental consortium arising out of the wrongful death of a parent: Colo.Rev.Stat. Ann. §§ 13–21–201(1) and 13–21–203(1)(a) (2014) (wrongful death action may be brought for benefit of decedent's children, and recovery may include damages for loss of companionship); Haw.Rev.Stat. § 663–3(b)(5) (Supp.2014) (award in wrongful death action may include damages for “[l]oss of parental care, training, guidance, or education”); Kan. Stat. Ann. § 60–1904(a)(5) (1994) (award in wrongful death action may include damages for “loss of parental care, training, guidance or education”); La. Civ.Code Ann. arts. 2315(13), 2315.2(A)(1) (2008) (wrongful death action may be brought for benefit of decedent's children, and recovery may include damages for “loss of consortium, service, and society”); Me.Rev.Stat. Ann. tit. 18–A, § 2–804(b) (West 2012) (wrongful death action may be brought for benefit of decedent's children, and recovery may include damages for “the loss of comfort, society and companionship of the deceased”); Md.Code Ann., Cts. and Jud. Proc. § 3–904(d) (LexisNexis 2013) (award in wrongful death action may include damages for “loss of society, companionship, comfort, protection ... parental care ... attention, advice, counsel, training, guidance, or education ... for the death of ... [3] [a] parent of a minor child”); Mass. Ann. Laws c. 229, § 2 (LexisNexis 2009) (wrongful death action may be brought for benefit of decedent's children, and recovery may include damages for “care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent”); Mich. Comp. Laws Serv. § 600.2922(3)(a) and (6) (LexisNexis Supp.2015) (wrongful death action may be brought for benefit of decedent's children, and award may include damages for “the loss of the society and companionship of the deceased”); Mo. Ann. Stat. §§ 537.080 and 537.090 (2008) (wrongful death action may be brought for benefit of decedent's children, and recovery may include damages for “the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support” that decedent would have provided); Nev.Rev.Stat. § 41.085(2) and (4) (2013) (wrongful death action may be brought for benefit of decedent's children, and recovery may include damages for loss of decedent's “companionship, society, comfort and consortium”); N.H.Rev.Stat. Ann. § 556:12(III) (2007) (when decedent is parent of minor children, trier of fact may award damages to children for “the loss of the comfort, society, affection, guidance, and companionship of the deceased,” limited to $50,000 per child); N.C. Gen.Stat. § 28A–18–2 (b) (2013) (wrongful death action may be brought for benefit of decedent's children, and recovery may include damages for loss of “[s]ociety, companionship, comfort, guidance, kindly offices and advice of the decedent”); Ohio Rev.Code Ann. § 2125.02(13)(3) (West 2014) (award in wrongful death action may include damages for “[l]oss of the society of the decedent, including loss of companionship, consortium, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, and education, suffered by the surviving ... dependent children”); Okla. Stat. Ann. tit. 12, § 1053(13) (West 2015) (award in wrongful death action may include damages for “loss of companionship of the children ... of the decedent”); Or.Rev.Stat. § 30.020(2) (2013) (in wrongful death action, “damages may be awarded in an amount which ... [d] [j]ustly, fairly and reasonably compensates the decedent's ... children ... for loss of the society, companionship and services of the decedent”); 42 Pa. Cons.Stat. Ann. § 8301(a) and (b) (West 2007) (wrongful death action may be brought for benefit of decedent's children); W. Va.Code Ann. § 55–7–6(b) and (c)(1) (LexisNexis 2008) (wrongful death action may be brought for benefit of decedent's children, and recovery may include damages for loss of “society, companionship, comfort, guidance, kindly offices and advice of the decedent”); Wis. Stat. Ann. § 895.04(4) (West Supp.2014) (in wrongful death action, “damages not to exceed ... $350,000 per occurrence in the case of a deceased adult, for loss of society and companionship may be awarded to the ... children ... of the deceased”); Wyo. Stat. Ann. § 1–38–102(b) and (c) (2013) (wrongful death action may be brought for benefit of decedent's children, and recovery may include damages for “loss of probable future companionship, society and comfort”).The following cases have recognized a cause of action for the loss of parental consortium arising out of the wrongful death of a parent: Hibpshman v. Prudhoe Bay Supply, Inc., supra, 734 P.2d at 994 (under Alaska's wrongful death statute, action may be brought for benefit of decedent's child, and recovery may include damages for loss of consortium); Merritt–Chapman & Scott Corp. v. Frazier, 289 F.2d 849, 858 (9th Cir.) (under Arizona's wrongful death statute, jury was permitted to award decedent's children damages for loss of companionship, comfort and guidance), cert. denied, 368 U.S. 835, 82 S.Ct. 60, 7 L.Ed.2d 36 (1961); Consolidated Freightways Corp. v. Futrell, 201 Ga.App. 233, 233, 410 S.E.2d 751 (1991) (award in wrongful death action may include damages for loss of “a parent's society, advice, example and counsel” [internal quotation marks omitted] ), cert. denied, Georgia Supreme Court, Docket No. S92C0070 (Ga. November 1, 1991); Horner v. Sani–Top, Inc., 143 Idaho 230, 237, 141 P.3d 1099 (2006) (“general damages, such as loss of society and companionship, will be presumed upon death when the plaintiff is the ... child ... of the decedent”); TRW Vehicle Safety Systems, Inc. v. Moore, 936 N.E.2d 201, 222 (Ind.2010) (under Indiana's wrongful death statute, “[a] decedent's minor children may recover for loss of parental training and guidance as well as for the loss of their parent's care” [internal quotation marks omitted] ); Drews v. Gobel Freight Lines, Inc., 197 Ill.App.3d 1049, 1058, 145 Ill.Dec. 533, 557 N.E.2d 303 (1990) (damages that decedent's children may recover in wrongful death action include “all of those intangible benefits encompassed by the terms ‘loss of society’ or ‘loss of consortium’ ”), aff'd, 144 Ill.2d 84, 161 Ill.Dec. 324, 578 N.E.2d 970 (1991); Giuliani v. Guiler, 951 S.W.2d 318, 323 (Ky.1997) (recognizing common-law action for loss of parental consortium arising from wrongful death); State Farm Mutual Automobile Ins. Co. v. Luebbers, 138 N.M. 289, 300, 119 P.3d 169 (App.2005) (damages for loss of parental consortium may be recovered under wrongful death statute and in independent common-law action), cert. quashed, 140 N.M. 675, 146 P.3d 810 (2006); Mease v. Commonwealth, 145 Pa.Cmwlth. 407, 412, 603 A.2d 679 (1992) (beneficiary in wrongful death action is entitled to pecuniary value of services, society and comfort that decedent would have provided); Smith v. Wells, 258 S.C. 316, 319, 188 S.E.2d 470 (1972) (decedent's children may recover for “loss of companionship, and ... deprivation of the use and comfort of the [decedent's] society” in wrongful death action); Taylor v. Beard, 104 S.W.3d 507, 509 (Tenn.2003) (under wrongful death statute, “ ‘pecuniary value’ ” includes damages for loss of parental consortium); Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex.1986) (decedent's children may recover damages for loss of companionship and society); Murray v. United States, 327 F.Supp. 835, 841 (D.Utah 1971) (under Utah's wrongful death statute, children may recover damages for “loss of society, companionship, happiness and association with their ... [parents]”), amended on other grounds, 463 F.2d 208 (10th Cir.1972); Matthews v. Hicks, 197 Va. 112, 119–20, 87 S.E.2d 629 (1955) (damages in wrongful death action, which may be brought for benefit of decedent's children, may include “loss of deceased's care, attention and society”); Ueland v. Pengo Hydra–Pull Corp., supra, 103 Wash.2d at 134, 691 P.2d 190 (“[a] child ... can bring an action for wrongful death ... where loss of consortium is an element of the recovery”).
The other states are Arkansas, New Jersey, New York and North Dakota.
Justice Zarella contends in his dissenting opinion that we should not rely on the states in which the legislature has provided a statutory cause of action for loss of parental consortium arising from nonfatal injuries or death in support of our conclusion that most states have concluded that the public policies favoring the recognition of such a cause of action outweigh those disfavoring it. Presumably, however, the legislatures in these states performed the same balancing of public policy interests that we have performed and came to the conclusion that the policies in favor of compensating children for the loss of parental consortium outweigh the policies against it. We see no reason why we should be required to ignore these legislative policy assessments.
45 Because we no longer agree with this court's weighing of the relevant public policy factors in Mendillo, we now overrule our holding in that case and conclude that we should recognize a cause of action for loss of parental consortium. To decide otherwise would be inconsistent with the “the fundamental policy purposes of the tort compensation system—compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct....” Mendillo v. Board of Education, supra, 246 Conn. at 482, 717 A.2d 1177. Consistent with the foregoing analysis, however, we impose the following restrictions on loss of parental consortium claims. First, loss of parental consortium claims must be joined with the parent's negligence claim whenever possible, and the jury must be instructed that only the child raising the claim can recover the pecuniary value of the parent's services. Cf. Hopson v. St. Mary's Hospital, supra, 176 Conn. at 494, 408 A.2d 260 (loss of spousal consortium claim should be joined in one action with injured spouse's claim and tried before single trier of fact to minimize possibility of inconsistent verdicts). Second, and relatedly, because a loss of parental consortium action “is derivative of the injured [parent's] cause of action, the consortium claim would be barred when the [action] brought by the injured [parent] has been terminated by settlement or by an adverse judgment on the merits.” Id. Third, a loss of parental consortium claim may be raised only by a person who was a minor on the date that the parent was injured, and damages may be awarded only for the period between the date of the parent's injury and the date that the child reaches the age of majority.
In overruling Mendillo, we are mindful of the important role that the doctrine of stare decisis plays in our jurisprudence and that we should overrule a prior decision only when logic dictates such a result. See, e.g., Jaiguay v. Vasquez, 287 Conn. 323, 351 n. 22, 948 A.2d 955 (2008). Like Hopson v. St. Mary's Hospital, supra, 176 Conn. at 485, 408 A.2d 260, in which we overruled our earlier precedent declining to recognize a claim for loss of spousal consortium; see id., at 494–96, 408 A.2d 260 (overruling Marri v. Stamford Street Railroad Co., 84 Conn. 9, 78 A. 582 [ (1911) ], and recognizing cause of action for loss of spousal consortium); this is such a case.
In the unusual case in which those actions cannot be joined, the injured parent may recover damages arising out of the parent's inability to care for his or her minor child only if the child has not already recovered for the loss of the parent's society and companionship. This limitation will eliminate any risk of a double recovery in the rare case in which joinder of the two claims is impossible or highly impracticable.
For purposes of this opinion, a minor child is a person under the age of eighteen years who has not been legally emancipated. See General Statutes § 46b–120(1) (“ ‘[c]hild’ means any person under eighteen years of age who has not been legally emancipated”). The record reveals that Jose Eduardo Campos was the only one of the Campos children who was a minor when the decedent was injured on September 15, 2008.Because the issue is not before us, we express no opinion as to whether a physically or mentally disabled person who is dependent on parental care, but who is over the age of eighteen, may raise a loss of parental consortium claim.
6 The defendants also contend that, if we recognize a cause of action for loss of parental consortium, we should limit liability to damages arising from injury to the parent during the parent's life and thereby preclude damages arising from the parent's death. For the reasons set forth in our decision in Ladd v. Douglas, 203 Conn. 187, 523 A.2d 1301 (1987), we agree with the restriction advocated by the defendants. In Ladd, we considered whether the plaintiff, Catherine Ladd, whose husband had been killed in a motor vehicle accident, was entitled to damages for the loss of spousal consortium during the ten days that her husband lived following the accident and for the period after his death, pursuant to § 52–555. Id., at 189, 523 A.2d 1301. The defendants, the driver, the lessee and the lessor of the vehicle that struck the decedent, conceded that the plaintiff could recover for loss of consortium for the period between the accident and her husband's death. Id. The defendants contended, however, that Ladd was not entitled to damages for loss of spousal consortium resulting from her husband's death because, under the common law, there is no “right of recovery for the wrongful death of a victim on the part of either his estate or members of his family.” Id., at 191, 523 A.2d 1301. We agreed, observing that “our wrongful death statute has been regarded as the exclusive means by which damages resulting from death are recoverable.” Id., at 195, 523 A.2d 1301. We further observed that, under the wrongful death statute, a decedent's estate may “recover the value to the decedent of his nonpecuniary as well as pecuniary services to others”; id., at 197, 523 A.2d 1301; but the decedent's family members are not authorized to recover damages in their own right. See id. Accordingly, we concluded that a spouse may not recover damages for postmortem loss of spousal consortium under Connecticut statutory or common law. Id. Our reasoning in Ladd applies equally to loss of parental consortium claims. We therefore conclude that loss of parental consortium claims are limited to claims resulting from a parent's injury during the parent's life.
After our decision in Ladd, the legislature enacted General Statutes § 52–555a, which authorizes a cause of action for loss of spousal consortium arising from the death of a spouse separate and independent from a wrongful death action. See Public Acts 1989, No. 89–148, § 1, codified at General Statutes § 52–555a. The legislature, however, has not authorized a cause of action for loss of parental consortium arising from the death of a parent.
7 In addition to adopting the foregoing limitations on liability, the fact finder necessarily must consider whether the parent's injuries were insignificant or serious, and whether they were temporary or permanent. We decline, however, to impose the limitation adopted by a number of courts that damages are recoverable only when the parent has suffered a “serious, permanent and disabling mental or physical injury” that is “so overwhelming and severe that it causes the parent-child relationship to be destroyed or [to be] nearly destroyed.” Keele v. St. Vincent Hospital & Health Care Center, 258 Mont. 158, 162, 852 P.2d 574 (1993); accord Villareal v. Dept. of Transportation, supra, 160 Ariz. at 480, 774 P.2d 213. Rather, “the severity of the injury to the parent and its actual effect [on] the parent-child relationship ... the nature of the child's relationship with the parent, the child's emotional and physical characteristics, and whether other consortium giving relationships are available to the child”; Reagan v. Vaughn, supra, 804 S.W.2d at 467; are factors to be considered by the fact finder on a case-by-case basis in determining the amount of damages.
The Campos children contend that they should be entitled “to seek compensation for the serious harm they sustained watching their father suffer for three days in the hospital before he succumbed to [his] injuries....” Under our case law, however, such injuries are compensable in actions for bystander emotional distress, subject to the limitations on that cause of action. See Clohessy v. Bachelor, supra, 237 Conn. at 52–53, 675 A.2d 852 (close family member of victim may recover for emotional injury caused by contemporaneous sensory perception of event that caused victim's injury or by viewing victim immediately after event if no material change has occurred with respect to victim's location and condition, but family member may not recover for such injury if he or she was not at scene where injury occurred or did not arrive shortly after injury causing event). The plaintiffs have cited no authority for the proposition that the type of emotional injury caused by witnessing a parent's suffering, as distinct from the injury caused by the loss of a parent's love, care, companionship and guidance, should be recoverable in an action for the loss of parental consortium.
89 Finally, we address the defendants' contention that, if we recognize a cause of action for loss of parental consortium, we should not make it available to the parties in the present case but should apply it prospectively only. In support of their claim, the defendants rely on Ostrowski v. Avery, 243 Conn. 355, 703 A.2d 117 (1997), in which this court applied “the three-part test set out in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), for determining whether a decision must be applied prospectively only. A common-law decision will be applied nonretroactively only if: (1) it establishes a new principle of law, either by overruling past precedent on which litigants have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed ... (2) given its prior history, purpose and effect, retrospective application of the rule would retard its operation; and (3) retroactive application would produce substantial inequitable results, injustice or hardship.” (Citation omitted; internal quotation marks omitted.) Ostrowski v. Avery, supra, at 378 n. 18, 703 A.2d 117. The defendants contend that, because we have created a new rule that would impose a substantial burden on them, they have met this test. The defendants also refer to this court's holding in Hopson that the newly adopted cause of action for loss of spousal consortium would not be available when “a spouse's claims for ... injuries has been concluded by judgment or settlement or the running of [the] limitations [period] prior to” the issuance of that decision. Hopson v. St. Mary's Hospital, supra, 176 Conn. at 496, 408 A.2d 260. The defendants acknowledge that the new cause of action was available to the plaintiffs in Hopson, but they contend that this was because the appeal in that case was interlocutory. Because the present case has gone to judgment on the merits, they contend that our holding cannot apply retroactively under Hopson.
10 We are not persuaded by the defendants' argument. The general rule is that judicial decisions apply retroactively to pending cases; e.g., Avoletta v. State, 152 Conn.App. 177, 186 n. 2, 98 A.3d 839, cert. denied, 314 Conn. 944, 102 A.3d 1116 (2014); and this court's decision in Ostrowski sets forth the conditions under which the courts will recognize an exception to that general rule. See Ostrowski v. Avery, supra, 243 Conn. at 378 n. 18, 703 A.2d 117; see also Marone v. Waterbury, 244 Conn. 1, 10, 707 A.2d 725 (1998) (“judgments that are not by their terms limited to prospective application are presumed to apply retroactively”); Clohessy v. Bachelor, supra, 237 Conn. at 57, 675 A.2d 852 (“[t]raditionally ... in cases of civil tort liability in which new causes of action are recognized, the new theory of liability is applied to the parties in the case”). The defendants in the present case have pointed to no exceptional circumstances that would render the retroactive application of our decision in the present case inequitable or unduly harsh, and they cannot seriously contend that they relied to their detriment on the rule enunciated in Mendillo. See Hopson v. St. Mary's Hospital, supra, 176 Conn. at 495–96, 408 A.2d 260 (“[o]ur decision ... [adopting a cause of action for loss of spousal consortium] does not drastically or radically change existing law, for in no serious way will an existing interest be impaired or an expectation be disappointed or a reliance be defeated”); see also Mueller v. Tepler, 312 Conn. 631, 655, 95 A.3d 1011 (2014) (newly adopted cause of action for loss of consortium by person who would have married victim of tortious conduct if she had not been prevented by law that violated public policy was available to parties to appeal when defendants could not have relied on previous rule to their detriment); Clohessy v. Bachelor, supra, at 57 n. 15, 675 A.2d 852 (newly adopted cause of action for bystander emotional distress was available to parties to appeal because existence of rule could have “had no influence on the defendant's alleged negligent conduct”); Hopson v. St. Mary's Hospital, supra, at 496 n. 5, 408 A.2d 260 (courts are more willing to abandon old rule and to apply new rule to parties in case “when the rule to be discarded may not be reasonably supposed to have determined the conduct of the litigants”).
The defendants contended at oral argument before this court that, because the jury's award of damages for the wrongful death claim might well have been different if the Campos children had been permitted to present their loss of parental consortium claim to the jury at trial, allowing the Campos children to bring a claim at this point could result in double recovery. The defendants have cited to nothing in the record, however, that would support a conclusion that the jury's award of damages included amounts that would be recoverable in an action for loss of parental consortium. In any event, under the limitations that we have placed on loss of parental consortium claims in the present case, Jose Eduardo Campos is the only plaintiff who will be able to assert a loss of parental consortium claim; see footnote 18 of this opinion; and he will be entitled to seek damages only for the three days that the decedent survived after he was injured. Any potential overlap in damages is therefore de minimis.
Moreover, contrary to the defendants' contention, the appeal in Hopson was not interlocutory but was “[f]rom the judgment of the [trial] court rendered on the demurrers [to the plaintiff husband's loss of consortium claim, which the trial court had] sustained....” (Footnote omitted.) Hopson v. St. Mary's Hospital, supra, 176 Conn. at 486, 408 A.2d 260. Thus, when we stated in Hopson that the holding of that case would not apply to cases that had “been concluded by judgment”; id., at 496, 408 A.2d 260; we clearly were referring to cases in which there was no appeal pending. See, e.g., State v. Thompson, 118 Conn.App. 140, 154, 983 A.2d 20 (2009) (prior judicial decision applied to case in which judgment had been rendered and in which appeal from judgment was pending), cert. denied, 294 Conn. 932, 986 A.2d 1057 (2010); cf. Marone v. Waterbury, supra, 244 Conn. at 13, 707 A.2d 725 (for purposes of determining whether judicial decision applies retroactively to workers' compensation award, award was final and decision did not apply “when ... the parties fail[ed] to appeal [from the award] within the statutory time period”); see also Marone v. Waterbury, supra, at 11 n. 10, 707 A.2d 725 (presumption of retroactivity of judicial decisions is limited to “pending cases” because application of judicial decision to case in which no appeal is pending and trial court would be required to open and modify judgment would violate principles of res judicata and collateral estoppel). We therefore conclude that our holding recognizing a cause of action for loss of parental consortium applies to the present case and to other pending cases. No action for loss of parental consortium will be allowed, however, when a parent's “claim for ... injuries has been concluded by judgment or settlement or the running of [the] limitations [period] prior to the [issuance] of this opinion....” Hopson v. St. Mary's Hospital, supra, at 496, 408 A.2d 260.
The judgment is reversed with respect to the claims for loss of parental consortium and the case is remanded with direction to deny the defendants' motion to strike those claims and for further proceedings in accordance with this opinion.
In this opinion ROGERS, C.J., and EVELEIGH and McDONALD, Js., concurred.
ZARELLA, J., with whom ESPINOSA and ROBINSON, Js., join, dissenting.
It is not the duty of this court to make law. That is a task properly left to the legislature. “To do otherwise, even if based on sound policy and the best of intentions, would be to substitute our will for that of a body democratically elected by the citizens of this state and to overplay our proper role in the theater of [state] government.” DeSantis v. Prelle, 891 A.2d 873, 881 (R.I.2006). In the present case, the majority steps beyond the limited role of judicial decision making and into the role of lawmaking by recognizing a new cause of action for loss of parental consortium. I therefore respectfully dissent.
In Mendillo v. Board of Education, 246 Conn. 456, 717 A.2d 1177 (1998), we declined to recognize a common-law claim for the loss of parental consortium. Id., at 461, 477, 717 A.2d 1177. Our rationale was “that the balance of reasons and public policies tips against the recognition of such a claim.” Id., at 477, 717 A.2d 1177. In the present case, however, after concluding that the benefits of recognizing a loss of parental consortium claim now outweigh its costs, the majority decides to abandon Mendillo and recognize such a claim. I cannot agree. I express no opinion as to the merits of recognizing such a claim from a policy perspective. Rather, as a matter of prudence, I believe it is unwise to create such a claim by judicial authority. In my view, this is a matter best left to the sound judgment of the legislature. Accordingly, I would affirm the judgment of the trial court.
I do not dispute that this court has the authority to change the common law to conform to the times. In a society of ever increasing interdependence and complexity, however, it is an authority this court should exercise only sparingly. Restraint is especially required when we are asked, as in this case, to address policy questions concerning families and familial relationships.1 The majority outlines five policy considerations that underlie whether this court should recognize a cause of action for loss of parental consortium, and there are undoubtedly more that are implicated. However, these considerations can properly be evaluated only after gathering and considering all of the relevant facts, many of which are not before us in this case.
Indeed, we previously have recognized that “[i]t is not the role of this court to strike precise balances among the fluctuating interests of competing private groups.... That function has traditionally been performed by the legislature, which has far greater competence and flexibility to deal with the myriad complications which may arise from the exercise of ... rights by some in diminution of those of others.” Cologne v. Westfarms Associates, 192 Conn. 48, 65, 469 A.2d 1201 (1984). Thus, the legislature, unlike this court, is institutionally equipped to gather all of the necessary facts to determine whether a claim for loss of parental consortium should be permitted and, if it should, how far it should extend. The legislature can hold public hearings, collect data unconstrained by concerns of relevancy and probative value, listen to evidence from a variety of experts, and elicit input from industry and society in general. Further, elected legislators, unlike the members of this court, can be held directly accountable for their policy decisions. Finally, the legislature can produce a comprehensive policy by enacting a statutory scheme that provides notice and predictability to insurers and insureds that allows them to plan accordingly.
In contrast, this court is limited to deciding only the cases and questions before it, and, therefore, it is restricted to the facts presented in this case. As a result, there is no evidence or data before this court regarding the consequences of allowing this new claim. The court has not heard from, and cannot consult, experts regarding the likely increases in litigation, jury awards, or insurance premiums. Likewise, statistics regarding the average Connecticut family size and structure—for example, how many Connecticut children are raised by adults other than their legal parents, such as aunts and uncles, grandparents, older siblings, foster parents, etc.—are not before the court. Additionally, this court has heard no “testimony” regarding the impact the recognition of a claim for loss of parental consortium has had in states that have allowed it. Undoubtedly, these are all important considerations when the public policies that underlie a claim for loss of parental consortium are weighed. Moreover, “the judicial process, though public in name, is private in essence. The public cannot broadly petition [a] court to urge it to reach a particular result.... [A court cannot] take testimony from all the persons or factions who may have an interest, or effectively weigh the competing interests that they may have.” R. Young, “A Judicial Traditionalist Confronts the Common Law,” 8 Tex. Rev. L. & Pol. 299, 304 (2004). Consequently, this court's ad hoc decisions regarding the extent and limits of a claim for loss of parental consortium will provide no predictability, and determinations of whether liability exists will be made only after harm has occurred. Thus, the question of whether to overturn Mendillo should be left to the legislature.
Setting aside the fact that this court should not be making this policy determination, I note that the weight of authority in other jurisdictions suggests that Mendillo was correctly decided. The majority claims that “the vast majority of states have recognized the cause of action, either for cases arising from a parent's injury, or for cases arising from a parent's death, or both.” The majority is incorrect. In fact, only a minority of states have recognized the cause of action the majority creates, and, of those states, only one has done so in the absence of some legislative pronouncement regarding relevant public policy.
Before I review the decisions of our sister states, it is important to properly frame the cause of action in question. In its analysis, the majority relies on, and thus conflates, authority from other jurisdictions recognizing two distinct and separate causes of action: loss of consortium arising from a nonfatal parental injury and loss of consortium arising from a parent's wrongful death. These are very different causes of action and must be treated as such. In the present case, the issue is whether the court should recognize a cause of action for the loss of consortium arising from a nonfatal parental injury. It is therefore appropriate to rely on only those cases involving this same claim. A claim for the loss of consortium arising from a parent's wrongful death is an entirely different claim, and, therefore, to the extent the majority relies on authority from jurisdictions that recognize that claim, its reliance is misplaced.2
Mindful of this distinction, my review reveals that only seventeen states have recognized a claim for the loss of consortium arising from a nonfatal parental injury,3 with twenty-eight states and the District of Columbia declining to recognize such a claim.4 The law in the remaining five states is either unclear or those states have not addressed this question.5
Moreover, it is not enough to undertake a survey of our sister states and tally how many have or have not recognized a cause of action for loss of parental consortium. A deeper reading of the cases is required to develop a full understanding of the weight of authority. The majority states that “we no longer can conclude that the weight of authority supports our holding in Mendillo, much less that it does so overwhelmingly.” Text accompanying footnote 15 of the majority opinion. The weight of authority, however, has remained largely unchanged since our decision in Mendillo. Indeed, all three states that have considered the viability of a cause of action for loss of parental consortium arising from a parent's nonfatal injury since Mendillo was decided in 1998 have declined to recognize this claim. See Lambert v. Franklin Real Estate Co., 37 S.W.3d 770, 780 (Ky.App.2000); Harrington v. Brooks Drugs, Inc., 148 N.H. 101, 104, 808 A.2d 532 (2002); Taylor v. Beard, 104 S.W.3d 507, 511 (Tenn.2003). But cf. Brenneman v. Board of Regents, 135 N.M. 68, 72, 84 P.3d 685 (App.) (allowing recovery for loss of parental consortium under New Mexico Tort Claims Act), cert. denied, 135 N.M. 51, 84 P.3d 668 (2003). The last state to recognize a claim for loss of parental consortium in connection with a parent's nonfatal injury was Ohio in 1993, five years before Mendillo. See Gallimore v. Children's Hospital Medical Center, 67 Ohio St.3d 244, 255, 617 N.E.2d 1052 (1993). Thus, there has been no change in the weight of authority since our decision in Mendillo.
With respect to the basis for creating such a cause of action, four of the seventeen states that recognize the claim have done so by statute.6 Thus, the majority cannot rely on these four states to support its decision to create a cause of action judicially because each of those states created the cause of action through acts of their legislatures. Furthermore, in at least one of these states, the legislative act superseded an earlier court decision expressly declining to recognize a cause of action for loss of parental consortium. Zorzos v. Rosen ex rel. Rosen, 467 So.2d 305, 307 (Fla.1985).
In the thirteen remaining states that have created, by decisional law, a cause of action for loss of parental consortium arising from a parent's nonfatal injury, twelve relied, at least in part, on wrongful death statutes allowing children to recover damages for loss of parental consortium.7 In all of those states, the courts reasoned that allowing such damages under the wrongful death statute was a legislative expression of the state's public policy and that it would be inconsistent with the policy of the state to deny recovery when the parent is not fatally injured. See, e.g., Hibpshman v. Prudhoe Bay Supply, Inc., 734 P.2d 991, 994 (Alaska 1987) (“[p]recluding minor children from maintaining a cause of action for loss of parental consortium arising from their parent's injury would ... be inconsistent with the legislature's authorization of such recovery when the parent dies”); Villareal v. Dept. of Transportation, 160 Ariz. 474, 479, 774 P.2d 213 (1989) (“[the Arizona] legislature recognizes the value of the parent-child relationship and allows children to recover for the wrongful death of a parent”); Williams v. Hook, 804 P.2d 1131, 1136–37 (Okla.1990) (“[W]e are hard pressed to find a distinction between allowing children to recover for loss of consortium a child suffers through the actual death of a parent under [Oklahoma's wrongful death statute] and refusing to allow recovery for the loss of consortium when for all practical purposes the parent is in a state which equates death.... In enacting [that statute], the [Oklahoma] [l]egislature has acknowledged that children have a legal entitlement to their parent's society.” [Citation omitted; footnotes omitted.] ); Belcher v. Goins, 184 W.Va. 395, 403, 400 S.E.2d 830 (1990) (“the [West Virginia] legislature has implicitly recognized legal entitlement to parent consortium in nonfatal injury cases by explicitly recognizing entitlement to parental consortium in wrongful death cases”).
In Connecticut, however, the legislature has not created a cause of action for the loss of parental consortium arising from wrongful death. Connecticut's wrongful death statute allows only a spouse to recover for the postmortem loss of spousal consortium. See General Statutes § 52–555a. If the legislature also had wanted to allow recovery for the postmortem loss of parental consortium, it certainly could have done so. See, e.g., Dept. of Public Safety v. State Board of Labor Relations, 296 Conn. 594, 605, 996 A.2d 729 (2010).
After a more searching review of the law in our sister states, it is evident that Wisconsin is the only jurisdiction on which the majority can rely to support its position. Indeed, Wisconsin is the only state that has recognized the claim for loss of parental consortium arising from a parent's nonfatal injury through decisional law without relying on a previous expression of policy by the legislature. See Theama v. Kenosha, 117 Wis.2d 508, 527, 344 N.W.2d 513 (1984). As I previously discussed, of the seventeen states that recognize a claim for the loss of parental consortium arising from a nonfatal parental injury, sixteen have done so in reliance on the legislature's expression of the state public policy on parental consortium claims. Accordingly, the majority's statement that the weight of authority no longer supports our decision in Mendillo misrepresents the state of the law across the nation.
What is also clear from reviewing decisions from other jurisdictions is that courts are deeply divided over whether public policy favors recognizing a cause of action for the loss of parental consortium. For example, courts have reached different conclusions with respect to whether a child's claim for loss of parental consortium arising from a nonfatal injury will result in double recovery. Compare, e.g., Borer v. American Airlines, Inc., 19 Cal.3d 441, 448, 563 P.2d 858, 138 Cal.Rptr. 302 (1977) (“[d]ifficulty in defining and quantifying damages leads in turn to risk of double recovery: to ask the jury, even under carefully drafted instructions, to distinguish the loss to the mother from her inability to care for her children from the loss to the children from the mother's inability to care for them may be asking too much”), and Russell v. Salem Transportation Co., 61 N.J. 502, 507, 295 A.2d 862 (1972) (“[t]he asserted social need for the disputed cause of action may well be qualified, at least in terms of the family as an economic unit, by the practical consideration recognized by many of the cases on the point that reflection of the consequential disadvantages to children of injured parents is frequently found in jury awards to the parents on their own claims under existing law and practice”), with Hay v. Medical Center Hospital, 145 Vt. 533, 541–42, 496 A.2d 939 (1985) (“The recognition of a separate cause of action on behalf of a minor child ... will allow juries to properly allocate losses among the separate claims of multiple plaintiffs. We are confident in the ability of ... trial court judges to give adequate jury instructions concerning the computation and allocation of damages, and of juries to follow such instructions.”), and Nulle v. Gillette–Campbell County Joint Powers Fire Board, 797 P.2d 1171, 1176 (Wyo.1990) (“The specter of double recovery can be easily eliminated by the trial court's distinctly specifying in proper jury instructions the respective elements of damages to which the parent and the child are each entitled. We presume the jury reads and follows its instructions.”).
Additionally, some courts have dismissed the argument that creating this new claim would result in increased insurance premiums and a societal economic burden. See, e.g., Berger v. Weber, 411 Mich. 1, 15, 303 N.W.2d 424 (1981) (“[C]ompensating a child who has suffered emotional problems because of the deprivation of a parent's love and affection may provide the child with the means of adjustment to the loss. The child receives the immediate benefit of the compensation, but society will also benefit if the child is able to function without emotional handicap. This may well offset any increase in insurance premiums.”); Ueland v. Pengo Hydra–Pull Corp., 103 Wash.2d 131, 140, 691 P.2d 190 (1984) (rejecting argument that recognition of claim would increase insurance rates by stating “[t]his is a standard argument raised against expanding any area of tort liability”). At the same time, other courts have expressed genuine concern over the societal cost of increased litigation, higher insurance premiums, and more individuals forgoing insurance altogether. See, e.g., Salin v. Kloempken, 322 N.W.2d 736, 741 (Minn.1982) (“[r]ealistically, the burden of paying damage awards will be borne by the public generally in increased insurance premiums or, alternatively, in the enhanced danger that accrues from the greater number of people who may choose to go without insurance”); Harrington v. Brooks Drugs, Inc., supra, 148 N.H. at 104, 808 A.2d 532 (“The probability of increased litigation and multiple claims, which will hinder settlements and increase expenses, is ... a concern.... In addition, we remain concerned that the social burden of providing damages for this loss will ultimately be borne by the public....” [Citation omitted; internal quotation marks omitted.] ). When reasonable minds can differ, as they have in other cases addressing this issue, this court should not impose its will on the public. Instead, it should defer to the legislature, which can fully assess and more accurately weigh the relevant policy considerations.
In light of the foregoing considerations, prudence counsels this court to stay its hand. Instead, the majority's recognition of a cause of action for loss of parental consortium raises more questions than it answers. For example, insurers and defendants are left to wonder where the line between liability and nonliability truly lies. Can grandchildren bring a cause of action for loss of consortium when a grandparent who raises them is injured? Similarly, should liability be permitted when the relationship between a child and his or her noncustodial parent is impaired?8 Deciding where to draw the line is essentially a political decision that turns on a number of socio-economic factors, and it should therefore be left to the legislature. See, e.g., Borer v. American Airlines, Inc., supra, 19 Cal.3d at 446–47, 138 Cal.Rptr. 302, 563 P.2d 858; Guenther ex rel. Guenther v. Stollberg, 242 Neb. 415, 419, 495 N.W.2d 286 (1993).
“This uncertainty suggests that the legislature, which can invite public participation in the analysis of all relevant policy considerations and provide clear prospective rules to implement that policy, is better suited than this court to determine the costs and benefits of various liability regimes.... Our sympathy for the [children who have lost the love, affection, and society of a parent] ... should not lead us to usurp the legislature's authority to formulate public policy in this area.” Craig v. Driscoll, 262 Conn. 312, 352–53, 813 A.2d 1003 (2003) (Sullivan, C.J., dissenting). The legislature is better equipped to consider and resolve the competing policy concerns at play. Moreover, if experience proves that the balance between liability and nonliability is not properly struck, the legislature is free to modify the cause of action at any time. Courts, on the other hand, must await a proper case and a “demonstration of error, illogic, or incongruity....” Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543, 553, 652 P.2d 318 (1982). Accordingly, as I previously discussed, the question of whether to recognize a claim for the loss of parental consortium arising from a parent's nonfatal injury should be addressed by the legislature, not this court.
Finally, the doctrine of stare decisis dictates that we should follow Mendillo, not overturn it.9 In State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), Justice Palmer, the author of the majority opinion in the present case, noted: “This court has repeatedly acknowledged the significance of stare decisis to our system of jurisprudence because it gives stability and continuity to our case law.... The doctrine of stare decisis counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it.... Stare decisis is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging, it saves resources and it promotes judicial efficiency.... It is the most important application of a theory of decisionmaking consistency in our legal culture and ... is an obvious manifestation of the notion that decisionmaking consistency itself has normative value.” (Citation omitted; internal quotation marks omitted.) Id., at 519, 949 A.2d 1092. “The doctrine of stare decisis protects the legitimate expectations of those who live under the law, and ... is one of the means by which exercise of an arbitrary discretion in the courts is restrained.” (Citation omitted; internal quotation marks omitted.) Hubbard v. United States, 514 U.S. 695, 716, 115 S.Ct. 1754, 131 L.Ed.2d 779 (1995) (Scalia, J., concurring in part and concurring in the judgment). We also have recognized that this court will overrule a previous decision when it is clearly wrong. See, e.g., State v. Miranda, 274 Conn. 727, 734, 878 A.2d 1118 (2005).10
The majority fails to explain why “the most cogent reasons and inescapable logic require” that we overturn Mendillo; State v. Salamon, supra, 287 Conn. at 519, 949 A.2d 1092; or why it simply believes that Mendillo was wrongly decided. In overruling this court's holding in Mendillo, the majority destroys any semblance of stability in this area of the law. For instance, insurers now cannot be sure whether this court will further extend this cause of action to stepchildren, a question the majority expressly leaves unresolved, or other family members. To account for this uncertainty, insurers may raise premiums for all insureds, which would be a rational response to the unpredictability the majority has introduced into this area of the law by overruling Mendillo, a case under which insurers and insureds have operated for nearly twenty years.
In sum, the question of whether to overturn Mendillo and create a cause of action for the loss of parental consortium rests on policy considerations that only the legislature properly can evaluate. Moreover, the majority of other states that have addressed this issue have declined, as we did in Mendillo, to recognize such a cause of action. This court will now be only the second state supreme court in the country to recognize this cause of action in the absence of any legislative pronouncement supporting its creation. Finally, the principle of stare decisis dictates that we should adhere to our holding in Mendillo. In overruling Mendillo, rather than deferring to the legislature, the majority casts a shadow of doubt over when and to what extent this court will further expand the scope of loss of consortium claims.
For the foregoing reasons, I respectfully dissent.