Borer v. American Airlines, Inc.
Decision Date | 06 May 1977 |
Court | California Supreme Court |
Parties | , 563 P.2d 858 Ann Marie BORER, a minor, etc., et al., Plaintiffs and Appellants, v. AMERICAN AIRLINES, INC., Defendant and Respondent. L.A. 30650. |
John H. Russell and Sarrail & Russell, San Francisco, for plaintiffs and appellants.
Brill, Hunt, DeBuys & Burby, Stuart E. Rissman, Michael T. Fox, Los Angeles, and Ellis J. Horvitz, Encino, for defendant and respondent.
In Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669 we held that a married person whose spouse had been injured by the negligence of a third party may maintain a cause of action for loss of 'consortium.' We defined loss of 'consortium' as the 'loss of conjugal fellowship and sexual relations' (12 Cal.3d at p. 385, 115 Cal.Rptr. at p. 766, 525 P.2d at p. 670), but ruled that the term included the loss of love, companionship, society, sexual relations, and household services. Our decision carefully avoided resolution of the question whether anyone other than the spouse of a negligently injured person, such as a child or a parent, could maintain a cause of action analogous to that upheld in Rodriguez. We face that issue today: the present case presents a claim by nine children for the loss of the services, companionship, affection and guidance of their mother; the companion case of Baxter v. Superior Court, Cal., 138 Cal.Rptr. 315, 563 P.2d 871 presents the claim of a mother and father for the loss of the companionship and affection of their 16-year-old son.
Claims for loss of consortium of parents or of children have come before our Courts of Appeal on four occasions since the date of the filing of Rodriguez. Two decisions have held that a child has no cause of action for loss of parental consortium. (Garza v. Kantor (1976) 54 Cal.App.3d 1025, 127 Cal.Rptr. 164; Suter v. Leonard (1975) 45 Cal.App.3d 744, 120 Cal.Rptr. 110.) Two other cases have said that a parent can state a cause of action for loss of a child's consortium. (Mobaldi v. Board of Regents (1976) 55 Cal.App.3d 573, 586, 127 Cal.Rptr. 720; Hair v. County of Monterey (1975) 45 Cal.App.3d 538, 545, 119 Cal.Rptr. 639 (dictum).) Unpersuaded of any legal distinction between a parent's claim for loss of a child's consortium and a child's claim for loss of a parent's consortium, we granted hearings in the instant case and in Baxter v. Superior Court in order to address generally the question whether to recognize a new cause of action for loss of consortium in a parent-child relationship.
Judicial recognition of a cause of action for loss of consortium, we believe, must be narrowly circumscribed. Loss of consortium is an intangible injury for which money damages do not afford an accurate measure or suitable recompense; recognition of a right to recover for such losses in the present context, moreover, may substantially increase the number of claims asserted in ordinary accident cases, the expense of settling or resolving such claims, and the ultimate liability of the defendants. Taking these considerations into account, we shall explain why we have concluded that the payment of damages to persons for the lost affection and society of a parent or child neither truly compensates for such loss nor justifies the social cost in attempting to do so. We perceive significant differences between the marital relationship and the parent-child relationship that support the limitation of a cause of action for loss of consortium to the marital situation; we shall therefore further elaborate our reasons for concluding that a child cannot maintain a cause of action for loss of parental consortium. In similar fashion we conclude in the companion case of Baxter v. Superior Court that a parent cannot maintain a cause of action for loss of a child's consortium.
Finally, we shall explain why we reject plaintiffs' argument that because children can recover in a wrongful death action for the loss of the affection and society of their deceased parent, a denial of plaintiffs' cause of action for the loss of consortium of their injured parent would deprive them of the equal protection of the laws.
Since this appeal arises following a trial court order sustaining a demurrer to plaintiffs' complaint without leave to amend, we focus first on the specific allegations of plaintiffs' complaint. Plaintiffs, the nine children of Patricia Borer, allege that on March 21, 1972, the cover on a lighting fixture at the American Airlines Terminal at Kennedy Airport fell and struck Patricia. Plaintiffs further assert that as a result of the physical injuries sustained by Patricia, each of them has been 'deprived of the services, society, companionship, affection, tutelage, direction, guidance, instruction and aid in personality development, all with its accompanying psychological, educational and emotional detriment, by reason of Patricia Borer being unable to carry on her usual duties of a mother.' The complaint sets forth causes of action based upon negligence, breach of warranty, and manufacture of a defective product; it names as defendants American Airlines, two companies which manufactured and assembled the lighting fixture, and various fictitious defendants. Each plaintiff seeks damages of $100,000.
Defendant American Airlines demurred to the complaint for failure to state a cause of action. (Code Civ.Proc., § 430.10, subd. (e).) The trial court sustained the demurrer without leave to amend, and entered judgment dismissing the suit as to defendant American Airlines. Plaintiffs appealed from that judgment.
Our analysis of plaintiffs' appeal begins with our decision in Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669. In holding that a spouse has a cause of action for loss of consortium, we considered the proffered argument that such a holding would logically require us to uphold an analogous cause of action in the parent-child context or in even more distant relationships; we rejected that contention.
Quoting decisions of other states on the above point, we stated on pages 403--404, 115 Cal.Rptr. on page 779, 525 P.2d on page 683 that
Rodriguez, thus, does not compel the conclusion that foreseeable injury to a legally recognized relationship necessarily postulates a cause of action; instead it clearly warns that social policy must at some point intervene to delimit liability. Patricia Borer, for example, foreseeably has not only a husband (who has a cause of action under Rodriguez) and the children who sue here, but also parents whose right of action depends upon our decision in the companion case of Baxter v. Superior Court; foreseeably, likewise, she has brothers, sisters, cousins, inlaws, friends, colleagues, and other acquaintances who will be deprived of her companionship. No one suggests that all such persons possess a right of action for loss of Patricia's consortium; all agree that somewhere a line must be drawn. As stated by Judge Breitel in Tobin v. Grossman (1969) 24 N.Y.2d 609, 619, 301 N.Y.S.2d 554, 561, 249 N.E.2d 419, 424;
The decision whether to limit liability for loss of consortium by denying a cause of action in the parent-child context, or to permit that action but deny any claim based upon more remote relationships, is thus a question of policy. As explained by Justice Fleming in Suter v. Leonard (1975) 45 Cal.App.3d 744, 746, 120 Cal.Rptr. 110, 111:
In the first instance, strong policy reasons argue against extension of liability to loss of consortium of the parent-child relationship. Loss of consortium is an intangible, nonpecuniary loss; monetary compensation will not enable plaintiffs to regain the...
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