Hendrix v. General Motors Corp.

• Decision Date: 22 August 1983
• Citation: 193 Cal.Rptr. 922,146 Cal.App.3d 296
• Court: California Court of Appeals Court of Appeals
• Parties: Sharon Jean HENDRIX, Plaintiff and Appellant, v. GENERAL MOTORS CORPORATION, et al., Defendants and Respondents. Civ. 52720.

Page 922

193 Cal.Rptr. 922

146 Cal.App.3d 296

Sharon Jean HENDRIX, Plaintiff and Appellant, v. GENERAL MOTORS CORPORATION, et al., Defendants and Respondents.

Civ. 52720.

Court of Appeal, First District, Division 1, California.

Aug. 22, 1983.

Hearing Granted Oct. 20, 1983.

Jimm Parker, Law Office of Alfred R. Brown, Oakland, for plaintiff and appellant.

Edward J. McFetridge, Joseph J. Kubancik, St. Clair, Zappettini, McFetridge & Griffin, San Francisco, for respondents General Motors Corp.

Robert M. Davis, Thomas M. Frieder, Cresswell, Terreo, Davis & Lamborn, Oakland, for Doten Pontiac, Inc.

BREINER ^*, Justice, Pro Tem.

In this personal injury action we are asked to decide whether an unmarried cohabitant may state a cause of action for loss of consortium. We conclude she may not, and we affirm.

FACTS

Plaintiffs Lebron Mitchell and Sharon Jean Hendrix joined in a complaint against General Motors Corporation, the manufacturer, and Doten Pontiac, the seller, for damages arising out of an automobile accident in which Mitchell was severely injured. Mitchell stated three causes of action for products liability and negligence; in the Defendants demurred to the fourth cause of action on the ground that an action for loss of consortium cannot be maintained if the plaintiff was not married to the injured party. The trial court sustained the demurrer without leave to amend and entered a judgment of dismissal against Hendrix. She now appeals.

fourth cause of action, Hendrix alleged loss of consortium. Hendrix alleged that she was "the prospective wife of plaintiff Lebron Mitchell and at all times herein mentioned did reside with Lebron Mitchell."

DISCUSSION

The right of a married woman to recover for loss of consortium resulting from injuries to her husband was first recognized in Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669. Subsequent cases, however, refused to expand the cause of action to the child of an injured parent (Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858), the parent of an injured child (Baxter v. Superior Court (1977) 19 Cal.3d 461, 138 Cal.Rptr. 315, 563 P.2d 871), or the fiancee of an injured man (Tong v. Jocson (1977) 76 Cal.App.3d 603, 142 Cal.Rptr. 726; see also Etienne v. DKM Enterprises, Inc. (1982) 136 Cal.App.3d 487, 489, 186 Cal.Rptr. 321.) But for a recent development in the case law, we would summarily affirm the judgment in this case based upon those precedents.

Recently, however, the Fourth District Court of Appeal concluded that an unmarried cohabitant may state a cause of action for loss of consortium upon a showing that the nonmarital relationship possesses the "characteristics" of a marriage. (Butcher v. Superior Court (1983) 139 Cal.App.3d 58, 188 Cal.Rptr. 503.) For the reasons discussed below, we decline to follow that case, and we adhere to the line of authority which confines recovery for loss of consortium to an injury which occurs within a legal marriage.

I

In establishing the right of a spouse to recover for loss of consortium, the Supreme Court emphasized the foreseeability of the relationship: "one who negligently causes a severely disabling injury to an adult may reasonably expect that the injured person is married and that his or her spouse will be adversely affected by that injury. In our society the likelihood that an injured adult will be a married man or woman is substantial.... And the probability that the spouse of a severely disabled person will suffer a personal loss by reason of that injury is equally substantial." (Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d at p. 400, 115 Cal.Rptr. 765, 525 P.2d 669.)

Later in Borer v. American Airlines, Inc., supra, 19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858, the Supreme Court narrowed the wide sweep of that language and cautioned that Rodriguez should not be read so broadly as to permit a cause of action for loss of consortium whenever there is a "foreseeable injury to a legally recognized relationship ...." (P. 446, 138 Cal.Rptr. 302, 563 P.2d 858.) "Judicial recognition of a cause of action for loss of consortium, we believe, must be narrowly circumscribed." (P. 444, 138 Cal.Rptr. 302, 563 P.2d 858.) "[S]ocial policy must at some point intervene to delimit liability." (P. 446, 138 Cal.Rptr. 302, 563 P.2d 858.) "[T]he courts must locate the line between liability and nonliability at some point, a decision which is essentially political." (Pp. 446-447, 138 Cal.Rptr. 302, 563 P.2d 858, quoting from Suter v. Leonard (1975) 45 Cal.App.3d 744, 746, 120 Cal.Rptr. 110.)

Absent legislative authority, we think the line must be drawn to exclude a nonmarital cohabitant. The Butcher court rejected the notion that the public policy in favor of marriage should preclude recovery by an unmarried plaintiff. (Butcher v. Superior Court, supra, 139 Cal.App.3d at pp. 69-70, 188 Cal.Rptr. 503.) We disagree, and find strong policy reasons for confining recovery to a legal spouse.

First, we note that at common law a party must have been legally married to the injured person at the time of the injury to assert a claim for loss of consortium. (Prosser, Law of Torts, (4th ed. 1971) § 124, p. 874.) Sound reasons underlie this rule. The cause of action for loss of consortium presupposes that upon entry into a marriage a party is entitled to expect not only financial support or services but also comfort, companionship, sexual relations, and more. An injury to one spouse thus interferes with the other spouse's enjoyment of these benefits. (See generally Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d at pp. 404-406, 115 Cal.Rptr. 765, 525 P.2d 669.) But until marriage, neither party has a legal right to expect any such benefits from the other. Consequently, without marriage, an injury to one of the cohabitants does not interfere with a legally cognizable right of the other.

In California, one cannot sue for breach of a promise to marry. (Civ.Code, § 43.5.) It would be anomalous to permit a person to recover for the loss of consortium yet deny that same person recovery for the loss of those same marital benefits upon the failure to carry out the promise of marriage. (Tremblay v. Carter (Fla.App.1980) 390 So.2d 816; Sawyer v. Bailey (Me.1980) 413 A.2d 165.)

Furthermore, despite what appeared some years ago to be a changing social trend toward cohabitation without marriage (Comment, Consortium Rights of the Unmarried: Time for a Reappraisal (1981) 15 Family L.Q. 223, 224; Comment, In re Cary: A Judicial Recognition of Illicit Cohabitation (1974) 25 Hastings L.J. 1226; see Marvin v. Marvin (1976) 18 Cal.3d 660, 665, 134 Cal.Rptr. 815, 557 P.2d 106), marriage continues to be the foundation of this nation's family life. (See Marvin v. Marvin, supra, 18 Cal.3d at p. 684, 134 Cal.Rptr. 815, 557 P.2d 106.)

We perceive the policy of this state favoring marriage to be based upon the salutary notion that marriage is the basic unit of social order; a policy rooted not only in community mores, but also in the need to define the familial rights and responsibilities of society's members. This policy has been legislatively reflected in the statutes governing the solemnization of marriage (Civ.Code., § 4100-4309), in the rule prohibiting common law marriages (Civ.Code., § 4100), and in the statutes defining the rights and responsibilities of husbands and wives toward each other and their children (Civ.Code., §§ 196-239, 5100-5138). And it has been repeatedly reaffirmed by judicial decisions.

In Marvin v. Marvin, supra, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106, the Supreme Court emphasized that "the structure of society itself largely depends upon the institution of marriage, and nothing we have said in this opinion should be taken to derogate from that institution." (P. 684, 134 Cal.Rptr. 815, 557 P.2d 106.) Recently, in Norman v. Unemployment Ins. Appeals Bd. (1983) 34 Cal.3d 1, 192 Cal.Rptr. 134, 663 P.2d 904, the Supreme Court had the opportunity to reexamine the policy supporting the marriage relation and stated: "We reaffirm our recognition of a strong public policy favoring marriage. [Citation.] No similar policy favors the maintenance of nonmarital relationships." (P. 9, 192 Cal.Rptr. 134, 663 P.2d 904.) And in deferring to the Legislature the role of establishing a change in the public policy of this state, the court said: "In the absence of legislation which grants to members of a nonmarital realtionship the same benefits as those granted to spouses, no basis exists in this context for extending to nonmarital relations the preferential status afforded to marital relations." (Ibid.)

The pedestal upon which marriage is placed was well described in Nieto v. City of Los Angeles (1982) 138 Cal.App.3d 464, 470-471, 188 Cal.Rptr. 31: "Spouses receive special consideration from the state, for marriage is a civil contract 'of so solemn and binding a nature ... that the consent of the parties alone will not constitute marriage ...; but one to which the consent of the state is also required.' (Mott v. Mott (1889) 82 Cal. 413, 416 .) Marriage is accorded this degree of dignity in recognition that '[t]he joining of the man and woman in marriage is at once the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime.' (Marvin v. Marvin, supra, 18 Cal.3d 660, 684, 134 Cal.Rptr. 815, 557 P.2d 106.) Consonant therewith, the state is most solicitous of the rights of spouses. (See, e.g., (Civ.Code, § 5100 et seq.) The state affords similar protection to certain putative relationships in recognition of the good faith in which the innocent party undertook to marry. (Civ.Code, § 4452.) Unmarried cohabitants receive no similar solicitous statutory protection, nor should they; such would impede the state's substantial interest in promoting and protecting marriage."

This strong public policy would be...