Campos v. Coleman ( 2015 )

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GREGORIA CAMPOS, ADMINISTRATRIX (ESTATE
OF JOSE MAURICIO CAMPOS), ET AL. v.
ROBERT E. COLEMAN ET AL.
(SC 19195)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued October 21, 2014—officially released October 6, 2015
John W. Mills, 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 (defen-
dants).
Opinion
PALMER, J. 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.1 The pri-
mary issue presented by this case is whether we should
overrule this holding in Mendillo. We conclude that
we should.
The named plaintiff, Gregoria Campos, in her individ-
ual 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 Manage-
ment, LLC (LQ Management).2 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.3 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 over-
rule 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.
The facts underlying this case are tragic but straight-
forward. 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 chil-
dren 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 dam-
ages under the wrongful death statute, General Statutes
§ 52-555, (2) LQ Management also was liable for Cole-
man’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 defen-
dants filed a motion to strike the claims for loss of
parental consortium, as well as other claims not rele-
vant 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 dece-
dent’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 dam-
ages 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, accord-
ingly, 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 ren-
dered judgment thereon.
This appeal by the Campos children followed.4 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.5 We are persuaded by this claim.
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 con-
duct. Mendillo v. Board of Education, supra, 246 Conn.
461, 495–96. 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., 480. 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., 478. 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 quota-
tion 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. 479.
As we further observed in Mendillo, another argu-
ment 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 Hospi-
tal, 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 Educa-
tion, supra, 246 Conn. 480, 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 quo-
tation marks omitted.) Mendillo v. Board of Education,
supra, 479. 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
exend 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 rec-
ognizing . . . [a] cause of action [for loss of parental
consortium] . . . .’’ (Internal quotation marks omit-
ted.) Id., 479–80. 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, recog-
nized a cause of action for loss of parental consortium.’’
Id., 480.
Notwithstanding the conceded force of these argu-
ments, 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 substan-
tial risk of double recovery; and [5] the weight of judicial
authority.’’ Id., 485. 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., 514 (Berdon, J., concur-
ring in part and dissenting in part).
Upon reconsideration of the relevant considerations,
including the five factors that this court found determi-
native 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 dis-
favoring 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 over-
stated.
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.,
485. In Mendillo, we reasoned that ‘‘there are other
formally recognized relationships . . . [such as] sib-
lings, 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 chil-
dren who suffer a genuine loss of consortium by virtue
of their parent’s injury.’’ (Citation omitted; emphasis in
original; footnote omitted.) Id., 485–86.
Although we acknowledge that strong emotional
attachments frequently arise in all of these relation-
ships, 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., 485. Almost by definition, the familial
relationships referred to in Mendillo are more attenu-
ated 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 . . . .’’6 (Internal quotation
marks omitted.) Id., 500 (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, 500
(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 parent-
hood 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 obli-
gations may result in termination of parental rights).
We also disagree with the court’s conclusion in Men-
dillo 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 pre-
sumptively 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 chil-
dren); 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 1176 (loss of parental consortium claims are lim-
ited 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 arbi-
trarily exclude such claims by, for example, step-
children. See Mendillo v. Board of Education, supra,
246 Conn. 485. 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 chil-
dren 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 chil-
dren may bring a loss of consortium claim is not pre-
sented 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 chil-
dren the right of recovery for loss of parental con-
sortium.7
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., 513 (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 consor-
tium by minor children would impose undue societal
costs and would not yield significant social benefits.
Id., 487. 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., 487–88. 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., 488.
We did not explain in Mendillo, however, why dam-
ages from loss of parental consortium claims are any
more conjectural than other types of noneconomic dam-
ages, such as damages for pain and suffering and loss of
spousal consortium. See Hopson v. St. Mary’s Hospital,
supra, 176 Conn. 494 (rejecting argument that damages
for loss of spousal consortium are too remote or indirect
to be recognized because ‘‘[t]he task of computing dam-
ages 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.’’ Men-
dillo v. Board of Education, supra, 246 Conn. 493; 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 limi-
tations on such liability would be the far reaches of
foreseeability’’). On the contrary, the parent-child rela-
tionship is essentially different from other familial rela-
tionships, 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., 478; is an eminently fore-
seeable and uniquely harmful consequence of such an
injury. See id., 484 (‘‘as a general matter, it is foreseeable
that causing serious injury to a parent may have deleteri-
ous effects on the parent’s minor children’’); see also
id., 499 (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 compan-
ionship, 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 523; 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, 511 (Berdon, J., concurring in part
and dissenting in part) (‘‘development of a child’s char-
acter, 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 out-
weigh 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., 487; this concern would be ade-
quately 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 chil-
dren frequently take on parental responsibilities for
their younger siblings, and parents ordinarily have less
time per child to provide training and companionship.8
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 relation-
ships 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.
Finally, we address our conclusion in Mendillo that
recognizing a cause of action for loss of parental consor-
tium ‘‘would create a significant risk of double recov-
ery.’’ Mendillo v. Board of Education, supra, 246 Conn.
489. 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. 485, that loss of spousal consortium encom-
passes ‘‘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 distin-
guish between the different elements of [this] conceptu-
alistic unity’’ [internal quotation marks omitted]).
Similarly, parental consortium consists of both a par-
ent’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, 478. 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 recog-
nize 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., 490. 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,9 twenty-six jurisdictions have
declined to recognize such a cause of action,10 and four
jurisdictions are either unclear on the issue or have
not addressed it.11 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.12 More significantly, thirty-four jurisdictions
have recognized, either judicially or, more commonly,
legislatively, a cause of action for loss of parental con-
sortium arising from the wrongful death of a parent.13
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.14 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]egis-
lature has acknowledged that children have a legal enti-
tlement 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.15
Because we no longer agree with this court’s
weighing of the relevant public policy factors in Men-
dillo, 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—compensa-
tion of innocent parties, shifting the loss to responsible
parties or distributing it among appropriate entities,
and deterrence of wrongful conduct . . . .’’16 Mendillo
v. Board of Education, supra, 246 Conn. 482. 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.17 Cf. Hopson v. St. Mary’s Hos-
pital, supra, 176 Conn. 494 (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.18
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 rea-
sons 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 acci-
dent, 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., 189. 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 defen-
dants 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., 191. We agreed, observing
that ‘‘our wrongful death statute has been regarded as
the exclusive means by which damages resulting from
death are recoverable.’’ Id., 195. 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., 197; 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 con-
sortium under Connecticut statutory or common law.
Id. Our reasoning in Ladd applies equally to loss of
parental consortium claims.19 We therefore conclude
that loss of parental consortium claims are limited to
claims resulting from a parent’s injury during the par-
ent’s life.
In addition to adopting the foregoing limitations on
liability, the fact finder necessarily must consider
whether the parent’s injuries were insignificant or seri-
ous, 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, perma-
nent 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.
480. 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 par-
ent, 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 467; are factors to be considered by the fact
finder on a case-by-case basis in determining the
amount of damages.20
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 prospec-
tively 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 nonretroac-
tively 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 impres-
sion whose resolution was not clearly foreshadowed
. . . (2) given its prior history, purpose and effect, ret-
rospective application of the rule would retard its opera-
tion; and (3) retroactive application would produce
substantial inequitable results, injustice or hardship.’’
(Citation omitted; internal quotation marks omitted.)
Ostrowski v. Avery, supra, 378 n.18. 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 run-
ning of [the] limitations [period] prior to’’ the issuance
of that decision. Hopson v. St. Mary’s Hospital, supra,
176 Conn. 496. 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 pre-
sent case has gone to judgment on the merits, they
contend that our holding cannot apply retroactively
under Hopson.
We are not persuaded by the defendants’ argument.
The general rule is that judicial decisions apply retroac-
tively 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. 378 n.18; 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 retroac-
tively’’); Clohessy v. Bachelor, supra, 237 Conn. 57
(‘‘[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 seri-
ously contend that they relied to their detriment on the
rule enunciated in Mendillo.21 See Hopson v. St. Mary’s
Hospital, supra, 176 Conn. 495–96 (‘‘[o]ur decision . . .
[adopting a cause of action for loss of spousal consor-
tium] 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 reli-
ance 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, 57 n.15 (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, 496 n.5 (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’’).
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 demur-
rers [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. 486. Thus, when we stated in Hopson that the
holding of that case would not apply to cases that had
‘‘been concluded by judgment’’; id., 496; 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. Water-
bury, supra, 244 Conn. 13 (for purposes of determining
whether judicial decision applies retroactively to work-
ers’ 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, 11 n.10 (presump-
tion 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 estop-
pel). We therefore conclude that our holding recogniz-
ing 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, 496.
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.
1
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. 478.
2
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.
3
The Campos children were all over the age of majority when this action
was filed.
4
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.
5
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., 649–58 (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. Kier-
nan, 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 partici-
pant in a team contact sport, a legal duty to refrain from reckless or inten-
tional 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. 480–90, 495–96. 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.
6
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.
7
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 consor-
tium. See footnote 5 of this opinion.
8
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.
9
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 997; Vil-
lareal v. Dept. of Transportation, supra, 160 Ariz. 477; 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 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
140; Belcher v. Goins, 184 W. Va. 395, 406, 400 S.E.2d 830 (1990); Theama
v. Kenosha, supra, 117 Wis. 2d 527; Nulle v. Gillette-Campbell County Joint
Powers Fire Board, supra, 797 P.2d 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 jurisdic-
tions that do not recognize loss of parental consortium claims. Mendillo v.
Board of Education, supra, 246 Conn. 490, 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 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, 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 consor-
tium only for claims arising from the death of the parent. See Audubon-
Exira Ready Mix, Inc. v. Illinois Central Gulf Railroad Co., supra, 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 Men-
dillo. See Brenneman v. Board of Regents, supra, 135 N.M. 72.
10
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, 653 N.E.2d 932, appeal
denied, 164 Ill. 2d 565, 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 A.D. 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); Has-
tings 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).
11
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.
12
See Borer v. American Airlines, Inc., 19 Cal. 3d 441, 460, 563 P.2d 838,
138 Cal. Rptr. 302 (1977) (Mosk, J., dissenting) (contending that court should
recognize cause of action for loss of parental consortium); Durepo v. Fish-
man, 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, 426
(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 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 coma-
tose is deemed dead); Ueland v. Pengo Hydra-Pull Corp., supra, 103 Wash.
2d 141–43 (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 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).
13
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 (B), 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. & 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)
(4) (2013) (wrongful death action may be brought for benefit of decedent’s
children, and recovery may include damages for loss of ‘‘[s]ociety, compan-
ionship, comfort, guidance, kindly offices and advice of the decedent’’);
Ohio Rev. Code Ann. § 2125.02 (B) (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 (B) (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, com-
panionship 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, companion-
ship, 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) (wrong-
ful 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: Hibpsh-
man v. Prudhoe Bay Supply, Inc., supra, 734 P.2d 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 dece-
dent’’); 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, 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, 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. Common-
wealth, 145 Pa. Commw. 407, 412, 603 A.2d 679 (1992) (beneficiary in wrong-
ful 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 companion-
ship, and . . . deprivation of the use and comfort of the [decedent’s] soci-
ety’’ 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 associa-
tion 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 134 (‘‘[a]
child . . . can bring an action for wrongful death . . . where loss of con-
sortium is an element of the recovery’’).
14
The other states are Arkansas, New Jersey, New York and North Dakota.
15
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 out-
weigh 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.
16
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. 485, in which we overruled
our earlier precedent declining to recognize a claim for loss of spousal
consortium; see id., 494–96 (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.
17
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.
18
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.
19
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.
20
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. 52–53 (close
family member of victim may recover for emotional injury caused by contem-
poraneous 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.
21
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 consor-
tium. 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.