19 Cal.3d 441, 30650, Borer v. American Airlines, Inc.

Docket Nº:30650
Citation:19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858
Opinion Judge:[10] Tobriner
Party Name:Borer v. American Airlines, Inc.
Attorney:[7] John H. Russell and Sarrail & Russell for Plaintiffs and Appellants. [8] Brill, Hunt, DeBuys & Burby, Stuart E. Rissman, Michael T. Fox and Ellis J. Horvitz for Defendant and Respondent.
Case Date:May 06, 1977
Court:Supreme Court of California

Page 441

19 Cal.3d 441

138 Cal.Rptr. 302, 563 P.2d 858

Ann Marie BORER, a minor, etc., et al., Plaintiffs and Appellants,


AMERICAN AIRLINES, INC., Defendant and Respondent.

L.A. 30650.

Supreme Court of California

May 6, 1977.

In Bank

Rehearing Denied June 2, 1977.

Page 442

[Copyrighted Material Omitted]

Page 443

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.

TOBRINER, Acting Chief Justice.

In Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 115 Cal.Rptr. 765 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

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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 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.

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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. 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 'Recognizing the traditional power of the courts to control the development of a judge-made rule of law, the court in Diaz v. Eli Lilly and Company (1973) Supra, 364 Mass. 153, 302 N.E.2d 555, 563, stated: 'Nor does it follow that if the husband-wife relationship is protected as here envisaged, identical protection must be afforded by analogy to other relationships from that of parent-child in a lengthy regress to that of

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master-servant; courts will rather proceed from case to case with discerning caution.' (Fn. omitted.) ( ) Dismissing the same argument, the New Jersey court stated that 'The law has always been most solicitous of the husband and wife relationship, perhaps more so than the parent and child relationship. (Citation.) In any event, policy rather than logic is the determinative factor and, while persuasive arguments may be mustered in favor of the child's claim (Prosser, supra, at p. 919), the reciprocal recognition of the wife's claim may readily be rested on its own footing of equality and justice without any compulsion of going further.' (Ekalo v. Constructive Serv. Corp. of Am. (1965) Supra, 46 N.J. 82, 215 A.2d 1, 7.)'

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; 'Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree.'

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: 'Plaintiff's claim, viewed in the abstract and divorced from its surroundings, carries both logical and sympathetic appeal . . . Certain aspects of spousal relationship are similar to those of the parent-child relationship, and there can be little question of the reality of the loss suffered by a child deprived of the society and care of its parent. Nevertheless our decision must take into account considerations in addition to logical symmetry and sympathetic appeal . . . (N)ot every loss can be made compensable in money damages, and legal causation must terminate somewhere. In delineating the extent of a tortfeasor's responsibility for damages under the general rule of tort liability (Civ.Code, § 1714), the courts must

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locate the line between liability and nonliability at some point, a decision which is essentially political.'

In the first instance, strong policy reasons argue against extension of...

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