Campos v. Coleman ( 2015 )

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CAMPOS v. COLEMAN—DISSENT
ZARELLA, J., with whom ESPINOSA and ROBINSON,
Js., join, dissenting. It is not the duty of this court to
make law. That is a task properly left to the legislature.
‘‘To do otherwise, even if based on sound policy and
the best of intentions, would be to substitute our will
for that of a body democratically elected by the citizens
of this state and to overplay our proper role in the
theater of [state] government.’’ DeSantis v. Prelle, 891
A.2d 873, 881 (R.I. 2006). In the present case, the major-
ity steps beyond the limited role of judicial decision
making and into the role of lawmaking by recognizing
a new cause of action for loss of parental consortium.
I therefore respectfully dissent.
In Mendillo v. Board of Education, 246 Conn. 456,
717 A.2d 1177 (1998), we declined to recognize a com-
mon-law claim for the loss of parental consortium. Id.,
461, 477. Our rationale was ‘‘that the balance of reasons
and public policies tips against the recognition of such
a claim.’’ Id., 477. In the present case, however, after
concluding that the benefits of recognizing a loss of
parental consortium claim now outweigh its costs, the
majority decides to abandon Mendillo and recognize
such a claim. I cannot agree. I express no opinion as
to the merits of recognizing such a claim from a policy
perspective. Rather, as a matter of prudence, I believe
it is unwise to create such a claim by judicial authority.
In my view, this is a matter best left to the sound judg-
ment of the legislature. Accordingly, I would affirm the
judgment of the trial court.
I do not dispute that this court has the authority to
change the common law to conform to the times. In a
society of ever increasing interdependence and com-
plexity, however, it is an authority this court should
exercise only sparingly. Restraint is especially required
when we are asked, as in this case, to address policy
questions concerning families and familial relation-
ships.1 The majority outlines five policy considerations
that underlie whether this court should recognize a
cause of action for loss of parental consortium, and
there are undoubtedly more that are implicated. How-
ever, these considerations can properly be evaluated
only after gathering and considering all of the relevant
facts, many of which are not before us in this case.
Indeed, we previously have recognized that ‘‘[i]t is
not the role of this court to strike precise balances
among the fluctuating interests of competing private
groups . . . . That function has traditionally been per-
formed by the legislature, which has far greater compe-
tence and flexibility to deal with the myriad compli-
cations which may arise from the exercise of . . .
rights by some in diminution of those of others.’’
Cologne v. Westfarms Associates, 192 Conn. 48, 65, 469
A.2d 1201 (1984). Thus, the legislature, unlike this court,
is institutionally equipped to gather all of the necessary
facts to determine whether a claim for loss of parental
consortium should be permitted and, if it should, how
far it should extend. The legislature can hold public
hearings, collect data unconstrained by concerns of
relevancy and probative value, listen to evidence from
a variety of experts, and elicit input from industry and
society in general. Further, elected legislators, unlike
the members of this court, can be held directly account-
able for their policy decisions. Finally, the legislature
can produce a comprehensive policy by enacting a stat-
utory scheme that provides notice and predictability to
insurers and insureds that allows them to plan
accordingly.
In contrast, this court is limited to deciding only the
cases and questions before it, and, therefore, it is
restricted to the facts presented in this case. As a result,
there is no evidence or data before this court regarding
the consequences of allowing this new claim. The court
has not heard from, and cannot consult, experts regard-
ing the likely increases in litigation, jury awards, or
insurance premiums. Likewise, statistics regarding the
average Connecticut family size and structure—for
example, how many Connecticut children are raised by
adults other than their legal parents, such as aunts and
uncles, grandparents, older siblings, foster parents,
etc.—are not before the court. Additionally, this court
has heard no ‘‘testimony’’ regarding the impact the rec-
ognition of a claim for loss of parental consortium has
had in states that have allowed it. Undoubtedly, these
are all important considerations when the public poli-
cies that underlie a claim for loss of parental consortium
are weighed. Moreover, ‘‘the judicial process, though
public in name, is private in essence. The public cannot
broadly petition [a] court to urge it to reach a particular
result . . . . [A court cannot] take testimony from all
the persons or factions who may have an interest, or
effectively weigh the competing interests that they may
have.’’ R. Young, ‘‘A Judicial Traditionalist Confronts
the Common Law,’’ 8 Tex. Rev. L. & Pol. 299, 304 (2004).
Consequently, this court’s ad hoc decisions regarding
the extent and limits of a claim for loss of parental
consortium will provide no predictability, and determi-
nations of whether liability exists will be made only
after harm has occurred. Thus, the question of whether
to overturn Mendillo should be left to the legislature.
Setting aside the fact that this court should not be
making this policy determination, I note that the weight
of authority in other jurisdictions suggests that Mendillo
was correctly decided. The majority claims that ‘‘the
vast majority of states have recognized the cause of
action, either for cases arising from a parent’s injury,
or for cases arising from a parent’s death, or both.’’ The
majority is incorrect. In fact, only a minority of states
have recognized the cause of action the majority cre-
ates, and, of those states, only one has done so in the
absence of some legislative pronouncement regarding
relevant public policy.
Before I review the decisions of our sister states, it
is important to properly frame the cause of action in
question. In its analysis, the majority relies on, and thus
conflates, authority from other jurisdictions recogniz-
ing two distinct and separate causes of action: loss of
consortium arising from a nonfatal parental injury and
loss of consortium arising from a parent’s wrongful
death. These are very different causes of action and
must be treated as such. In the present case, the issue
is whether the court should recognize a cause of action
for the loss of consortium arising from a nonfatal paren-
tal injury. It is therefore appropriate to rely on only
those cases involving this same claim. A claim for the
loss of consortium arising from a parent’s wrongful
death is an entirely different claim, and, therefore, to
the extent the majority relies on authority from jurisdic-
tions that recognize that claim, its reliance is mis-
placed.2
Mindful of this distinction, my review reveals that
only seventeen states have recognized a claim for the
loss of consortium arising from a nonfatal parental
injury,3 with twenty-eight states and the District of
Columbia declining to recognize such a claim.4 The law
in the remaining five states is either unclear or those
states have not addressed this question.5
Moreover, it is not enough to undertake a survey of
our sister states and tally how many have or have not
recognized a cause of action for loss of parental consor-
tium. A deeper reading of the cases is required to
develop a full understanding of the weight of authority.
The majority states that ‘‘we no longer can conclude
that the weight of authority supports our holding in
Mendillo, much less that it does so overwhelmingly.’’
Text accompanying footnote 15 of the majority opinion.
The weight of authority, however, has remained largely
unchanged since our decision in Mendillo. Indeed, all
three states that have considered the viability of a cause
of action for loss of parental consortium arising from
a parent’s nonfatal injury since Mendillo was decided
in 1998 have declined to recognize this claim. See Lam-
bert v. Franklin Real Estate Co., 37 S.W.3d 770, 780
(Ky. App. 2000); Harrington v. Brooks Drugs, Inc., 148
N.H. 101, 104, 808 A.2d 532 (2002); Taylor v. Beard, 104
S.W.3d 507, 511 (Tenn. 2003). But cf. Brenneman v.
Board of Regents, 135 N.M. 68, 72, 84 P.3d 685 (App.)
(allowing recovery for loss of parental consortium
under New Mexico Tort Claims Act), cert. denied, 135
N.M. 51, 84 P.3d 668 (2003). The last state to recognize
a claim for loss of parental consortium in connection
with a parent’s nonfatal injury was Ohio in 1993, five
years before Mendillo. See Gallimore v. Children’s Hos-
pital Medical Center, 67 Ohio St. 3d 244, 255, 617 N.E.2d
1052 (1993). Thus, there has been no change in the
weight of authority since our decision in Mendillo.
With respect to the basis for creating such a cause
of action, four of the seventeen states that recognize
the claim have done so by statute.6 Thus, the majority
cannot rely on these four states to support its decision
to create a cause of action judicially because each of
those states created the cause of action through acts
of their legislatures. Furthermore, in at least one of
these states, the legislative act superseded an earlier
court decision expressly declining to recognize a cause
of action for loss of parental consortium. Zorzos v.
Rosen ex rel. Rosen, 467 So. 2d 305, 307 (Fla. 1985).
In the thirteen remaining states that have created, by
decisional law, a cause of action for loss of parental
consortium arising from a parent’s nonfatal injury,
twelve relied, at least in part, on wrongful death statutes
allowing children to recover damages for loss of paren-
tal consortium.7 In all of those states, the courts rea-
soned that allowing such damages under the wrongful
death statute was a legislative expression of the state’s
public policy and that it would be inconsistent with the
policy of the state to deny recovery when the parent
is not fatally injured. See, e.g., Hibpshman v. Prudhoe
Bay Supply, Inc., 734 P.2d 991, 994 (Alaska 1987)
(‘‘[p]recluding minor children from maintaining a cause
of action for loss of parental consortium arising from
their parent’s injury would . . . be inconsistent with
the legislature’s authorization of such recovery when
the parent dies’’); Villareal v. Dept. of Transportation,
160 Ariz. 474, 479, 774 P.2d 213 (1989) (‘‘[the Arizona]
legislature recognizes the value of the parent-child rela-
tionship and allows children to recover for the wrongful
death of a parent’’); Williams v. Hook, 804 P.2d 1131,
1136–37 (Okla. 1990) (‘‘[W]e are hard pressed to find a
distinction between allowing children to recover for
loss of consortium a child suffers through the actual
death of a parent under [Oklahoma’s wrongful death
statute] and refusing to allow recovery for the loss of
consortium when for all practical purposes the parent
is in a state which equates death. . . . In enacting [that
statute], the [Oklahoma] [l]egislature has acknowl-
edged that children have a legal entitlement to their
parent’s society.’’ [Citation omitted; footnotes omit-
ted.]); Belcher v. Goins, 184 W. Va. 395, 403, 400 S.E.2d
830 (1990) (‘‘the [West Virginia] legislature has implic-
itly recognized legal entitlement to parent consortium
in nonfatal injury cases by explicitly recognizing entitle-
ment to parental consortium in wrongful death cases’’).
In Connecticut, however, the legislature has not cre-
ated a cause of action for the loss of parental consor-
tium arising from wrongful death. Connecticut’s
wrongful death statute allows only a spouse to recover
for the postmortem loss of spousal consortium. See
General Statutes § 52-555a. If the legislature also had
wanted to allow recovery for the postmortem loss of
parental consortium, it certainly could have done so.
See, e.g., Dept. of Public Safety v. State Board of Labor
Relations, 296 Conn. 594, 605, 996 A.2d 729 (2010).
After a more searching review of the law in our sister
states, it is evident that Wisconsin is the only jurisdic-
tion on which the majority can rely to support its posi-
tion. Indeed, Wisconsin is the only state that has
recognized the claim for loss of parental consortium
arising from a parent’s nonfatal injury through deci-
sional law without relying on a previous expression of
policy by the legislature. See Theama v. Kenosha, 117
Wis. 2d 508, 527, 344 N.W.2d 513 (1984). As I previously
discussed, of the seventeen states that recognize a claim
for the loss of parental consortium arising from a nonfa-
tal parental injury, sixteen have done so in reliance on
the legislature’s expression of the state public policy on
parental consortium claims. Accordingly, the majority’s
statement that the weight of authority no longer sup-
ports our decision in Mendillo misrepresents the state
of the law across the nation.
What is also clear from reviewing decisions from
other jurisdictions is that courts are deeply divided over
whether public policy favors recognizing a cause of
action for the loss of parental consortium. For example,
courts have reached different conclusions with respect
to whether a child’s claim for loss of parental consor-
tium arising from a nonfatal injury will result in double
recovery. Compare, e.g., Borer v. American Airlines,
Inc., 19 Cal. 3d 441, 448, 563 P.2d 858, 138 Cal. Rptr. 302
(1977) (‘‘[d]ifficulty in defining and quantifying damages
leads in turn to risk of double recovery: to ask the jury,
even under carefully drafted instructions, to distinguish
the loss to the mother from her inability to care for her
children from the loss to the children from the mother’s
inability to care for them may be asking too much’’),
and Russell v. Salem Transportation Co., 61 N.J. 502,
507, 295 A.2d 862 (1972) (‘‘[t]he asserted social need
for the disputed cause of action may well be qualified,
at least in terms of the family as an economic unit, by
the practical consideration recognized by many of the
cases on the point that reflection of the consequential
disadvantages to children of injured parents is fre-
quently found in jury awards to the parents on their
own claims under existing law and practice’’), with Hay
v. Medical Center Hospital, 145 Vt. 533, 541–42, 496
A.2d 939 (1985) (‘‘The recognition of a separate cause
of action on behalf of a minor child . . . will allow
juries to properly allocate losses among the separate
claims of multiple plaintiffs. We are confident in the
ability of . . . trial court judges to give adequate jury
instructions concerning the computation and allocation
of damages, and of juries to follow such instructions.’’),
and Nulle v. Gillette-Campbell County Joint Powers
Fire Board, 797 P.2d 1171, 1176 (Wyo. 1990) (‘‘The
specter of double recovery can be easily eliminated
by the trial court’s distinctly specifying in proper jury
instructions the respective elements of damages to
which the parent and the child are each entitled. We
presume the jury reads and follows its instructions.’’).
Additionally, some courts have dismissed the argu-
ment that creating this new claim would result in
increased insurance premiums and a societal economic
burden. See, e.g., Berger v. Weber, 411 Mich. 1, 15, 303
N.W.2d 424 (1981) (‘‘[C]ompensating a child who has
suffered emotional problems because of the deprivation
of a parent’s love and affection may provide the child
with the means of adjustment to the loss. The child
receives the immediate benefit of the compensation, but
society will also benefit if the child is able to function
without emotional handicap. This may well offset any
increase in insurance premiums.’’); Ueland v. Pengo
Hydra-Pull Corp., 103 Wash. 2d 131, 140, 691 P.2d 190
(1984) (rejecting argument that recognition of claim
would increase insurance rates by stating ‘‘[t]his is a
standard argument raised against expanding any area
of tort liability’’). At the same time, other courts have
expressed genuine concern over the societal cost of
increased litigation, higher insurance premiums, and
more individuals forgoing insurance altogether. See,
e.g., Salin v. Kloempken, 322 N.W.2d 736, 741 (Minn.
1982) (‘‘[r]ealistically, the burden of paying damage
awards will be borne by the public generally in
increased insurance premiums or, alternatively, in the
enhanced danger that accrues from the greater number
of people who may choose to go without insurance’’);
Harrington v. Brooks Drugs, Inc., supra, 148 N.H. 104
(‘‘The probability of increased litigation and multiple
claims, which will hinder settlements and increase
expenses, is . . . a concern . . . . In addition, we
remain concerned that the social burden of providing
damages for this loss will ultimately be borne by the
public . . . .’’ [Citation omitted; internal quotation
marks omitted.]). When reasonable minds can differ,
as they have in other cases addressing this issue, this
court should not impose its will on the public. Instead,
it should defer to the legislature, which can fully assess
and more accurately weigh the relevant policy consider-
ations.
In light of the foregoing considerations, prudence
counsels this court to stay its hand. Instead, the majori-
ty’s recognition of a cause of action for loss of parental
consortium raises more questions than it answers. For
example, insurers and defendants are left to wonder
where the line between liability and nonliability truly
lies. Can grandchildren bring a cause of action for loss
of consortium when a grandparent who raises them is
injured? Similarly, should liability be permitted when
the relationship between a child and his or her noncus-
todial parent is impaired?8 Deciding where to draw the
line is essentially a political decision that turns on a
number of socio-economic factors, and it should there-
fore be left to the legislature. See, e.g., Borer v. Ameri-
can Airlines, Inc., supra, 19 Cal. 3d 446–47; Guenther
ex rel. Guenther v. Stollberg, 242 Neb. 415, 419, 495
N.W.2d 286 (1993).
‘‘This uncertainty suggests that the legislature, which
can invite public participation in the analysis of all
relevant policy considerations and provide clear pro-
spective rules to implement that policy, is better suited
than this court to determine the costs and benefits of
various liability regimes. . . . Our sympathy for the
[children who have lost the love, affection, and society
of a parent] . . . should not lead us to usurp the legisla-
ture’s authority to formulate public policy in this area.’’
Craig v. Driscoll, 262 Conn. 312, 352–53, 813 A.2d 1003
(2003) (Sullivan, C. J., dissenting). The legislature is
better equipped to consider and resolve the competing
policy concerns at play. Moreover, if experience proves
that the balance between liability and nonliability is not
properly struck, the legislature is free to modify the
cause of action at any time. Courts, on the other hand,
must await a proper case and a ‘‘demonstration of error,
illogic, or incongruity . . . .’’ Norwest v. Presbyterian
Intercommunity Hospital, 293 Or. 543, 553, 652 P.2d
318 (1982). Accordingly, as I previously discussed, the
question of whether to recognize a claim for the loss
of parental consortium arising from a parent’s nonfatal
injury should be addressed by the legislature, not
this court.
Finally, the doctrine of stare decisis dictates that we
should follow Mendillo, not overturn it.9 In State v.
Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), Justice
Palmer, the author of the majority opinion in the present
case, noted: ‘‘This court has repeatedly acknowledged
the significance of stare decisis to our system of juris-
prudence because it gives stability and continuity to
our case law. . . . The doctrine of stare decisis coun-
sels that a court should not overrule its earlier decisions
unless the most cogent reasons and inescapable logic
require it. . . . Stare decisis is justified because it
allows for predictability in the ordering of conduct,
it promotes the necessary perception that the law is
relatively unchanging, it saves resources and it pro-
motes judicial efficiency. . . . It is the most important
application of a theory of decisionmaking consistency
in our legal culture and . . . is an obvious manifesta-
tion of the notion that decisionmaking consistency itself
has normative value.’’ (Citation omitted; internal quota-
tion marks omitted.) Id., 519. ‘‘The doctrine of stare
decisis protects the legitimate expectations of those
who live under the law, and . . . is one of the means by
which exercise of an arbitrary discretion in the courts is
restrained.’’ (Citation omitted; internal quotation marks
omitted.) Hubbard v. United States, 514 U.S. 695, 716,
115 S. Ct. 1754, 131 L. Ed. 2d 779 (1995) (Scalia, J.,
concurring in part and concurring in the judgment). We
also have recognized that this court will overrule a
previous decision when it is clearly wrong. See, e.g.,
State v. Miranda, 274 Conn. 727, 734, 878 A.2d 1118
(2005).10
The majority fails to explain why ‘‘the most cogent
reasons and inescapable logic require’’ that we overturn
Mendillo; State v. Salamon, supra, 287 Conn. 519; or
why it simply believes that Mendillo was wrongly
decided. In overruling this court’s holding in Mendillo,
the majority destroys any semblance of stability in this
area of the law. For instance, insurers now cannot be
sure whether this court will further extend this cause of
action to stepchildren, a question the majority expressly
leaves unresolved, or other family members. To account
for this uncertainty, insurers may raise premiums for
all insureds, which would be a rational response to the
unpredictability the majority has introduced into this
area of the law by overruling Mendillo, a case under
which insurers and insureds have operated for nearly
twenty years.
In sum, the question of whether to overturn Mendillo
and create a cause of action for the loss of parental
consortium rests on policy considerations that only the
legislature properly can evaluate. Moreover, the major-
ity of other states that have addressed this issue have
declined, as we did in Mendillo, to recognize such a
cause of action. This court will now be only the second
state supreme court in the country to recognize this
cause of action in the absence of any legislative pro-
nouncement supporting its creation. Finally, the princi-
ple of stare decisis dictates that we should adhere to
our holding in Mendillo. In overruling Mendillo, rather
than deferring to the legislature, the majority casts a
shadow of doubt over when and to what extent this
court will further expand the scope of loss of consor-
tium claims.
For the foregoing reasons, I respectfully dissent.
1
The traditional nuclear family has become a minority in America. In fact,
presently, only 20 percent of households would be considered traditional
or nuclear families, that is, a husband and wife plus children. See J. Walter
Thompson Intelligence, ‘‘Meet the New Family’’ (September, 2014) pp. 6–7,
available at https://d3ftitl17j4lal.cloudfront.net/b49a88b0-5573-4347-80e8-
55300923190f-all documents.pdf (last visited September 21, 2015). Among
the alternative family forms are cohabiting couples, same-sex couples, single
parent households, and extended family (or multigenerational) households.
See J. Merrill, note, ‘‘Two Steps Behind: The Law’s Struggle To Keep Pace
with the Changing Dynamics of the American Family,’’ 2009 Utah L. Rev.
557, 558. These changing family structures make weighing public policies
regarding family concerns more difficult than ever, and such issues should
be left to the elected branches of government.
2
I acknowledge that the plaintiffs argue that the cause of action for loss
of parental consortium should include damages arising from their father’s
injuries sustained prior to his death and damages arising from his death.
However, that does not change the fact that the two causes of action cannot
be conflated. The majority rightly concludes that we cannot allow the latter
claim, and, therefore, I am concerned only with the former.
3
See Fla. Stat. Ann. § 768.0415 (West 2011); Iowa Code Ann. § 613.15
(West 1999); La. Civ. Code Ann. art. 2315 (B) (2008); R.I. Gen. Laws § 9-1-
41 (b) (2012); Hibpshman v. Prudhoe Bay Supply, Inc., 734 P.2d 991, 997
(Alaska 1987); Villareal v. Dept. of Transportation, 160 Ariz. 474, 477, 774
P.2d 213 (1989); Ferriter v. Daniel O’Connell’s Sons, Inc., 381 Mass. 507,
516, 413 N.E.2d 690 (1980); Berger v. Weber, 411 Mich. 1, 13, 17, 303 N.W.2d
424 (1981); Pence v. Fox, 248 Mont. 521, 527, 813 P.2d 429 (1991); Gallimore
v. Children’s Hospital Medical Center, 67 Ohio St. 3d 244, 255, 617 N.E.2d
1052 (1993); Williams v. Hook, 804 P.2d 1131, 1138 (Okla. 1990); Reagan v.
Vaughn, 804 S.W.2d 463, 467 (Tex. 1990), modified on other grounds, Texas
Supreme Court, Docket No. C-9548 (Tex. March 6, 1991); Hay v. Medical
Center Hospital, 145 Vt. 533, 545, 496 A.2d 939 (1985); Ueland v. Pengo
Hydra-Pull Corp., 103 Wash. 2d 131, 140, 691 P.2d 190 (1984); Belcher v. Goins,
184 W. Va. 395, 406, 400 S.E.2d 830 (1990); Theama v. Kenosha, 117 Wis.
2d 508, 527, 344 N.W.2d 513 (1984); Nulle v. Gillette-Campbell County Joint
Powers Fire Board, 797 P.2d 1171, 1176 (Wyo. 1990).
The majority notes that twenty jurisdictions recognize the cause of action
that it creates today. I do not agree with its characterization of the law in
Minnesota, New Mexico, and South Dakota.
The majority cites Lefto v. Hoggsbreath Enterprises, Inc., 567 N.W.2d 746
(Minn. App. 1997), aff’d, 581 N.W.2d 855 (Minn. 1998), to support its claim
that Minnesota recognizes a limited loss of parental consortium claim. In
Lefto, however, the Minnesota Supreme Court, which affirmed the decision
of the Minnesota Court of Appeals, did not determine that the child could
assert a claim for loss of parental consortium. See Lefto v. Hoggsbreath
Enterprises, Inc., 581 N.W.2d 855, 857–58 (Minn. 1998). Instead, that court
interpreted Minnesota’s dram shop law and concluded that the child in
question could recover damages under that law for injuries the defendant
caused to her mother’s fiance, with whom the mother and her daughter had
been cohabiting. Id., 856–58. The majority cannot seriously contend that
allowing recovery under a dram shop law is the same as recognizing a cause
of action for loss of parental consortium, even if it only claims that it is a
similar cause of action. Moreover, the Minnesota Supreme Court previously
had expressly rejected a claim for loss of parental consortium. Salin v.
Kloempken, 322 N.W.2d 736, 742 (Minn. 1982) (‘‘[w]e conclude . . . that
. . . a new cause of action on behalf of a child for the loss of parental
consortium should not be recognized’’).
Similarly, the majority cites a case decided by the New Mexico Court of
Appeals, Brenneman v. Board of Regents, 135 N.M. 68, 84 P.3d 685 (App.),
cert. denied, 135 N.M. 51, 84 P.3d 668 (2003). In Brenneman, as in the Lefto
case in Minnesota, the court was interpreting an unrelated statute, namely,
New Mexico’s Tort Claims Act. See id., 69. The court in Brenneman con-
cluded: ‘‘The plain language of the [Tort Claims] Act, [the] cases interpreting
it, and its legislative history all indicate that loss of consortium damages
should be recoverable [there]under . . . .’’ Id., 72. That case says nothing
about allowing claims for loss of parental consortium that are brought
independently of the New Mexico Tort Claims Act. At best, it can be said
that the law in New Mexico is unclear; it certainly cannot be argued that
New Mexico has generally recognized a cause of action for the loss of
parental consortium.
With respect to South Dakota, the majority cites Zoss v. Dakota Truck
Underwriters, 590 N.W.2d 911 (S.D. 1999), a wrongful death case. See id.,
912. The majority is correct that South Dakota allows a child to ‘‘recover
[the] pecuniary value of [the] loss of society and companionship [of the
parent], which includes such things as protection, guidance, advice and
assistance . . . .’’ Footnote 9 of the majority opinion, quoting Zoss v. Dakota
Truck Underwriters, supra, 914. The point the majority fails to understand,
however, is that such recovery is limited to cases involving the wrongful
death of the parent. See Zoss v. Dakota Truck Underwriters, supra, 914. In
fact, the court in Zoss seemed to suggest that there is no claim for loss of
parental consortium when it defined consortium as ‘‘a right growing out of
the marital relationship . . . .’’ (Internal quotation marks omitted.) Id.
Although I cannot say with certainty that South Dakota has rejected a cause
of action for loss of parental consortium arising out of a parent’s nonfatal
injury, the majority certainly cannot claim that it has recognized such a
cause of action or a similar cause of action.
4
See Patterson v. Hays, 623 So. 2d 1142, 1146 (Ala. 1993); Lewis v.
Rowland, 287 Ark. 474, 478–79, 701 S.W.2d 122 (1985); Borer v. American
Airlines, Inc., 19 Cal. 3d 441, 451, 453, 563 P.2d 858, 138 Cal. Rptr. 302
(1977); Lee v. Dept. of Health, 718 P.2d 221, 233–34 (Colo. 1986); Mendillo
v. Board of Education, supra, 246 Conn. 461, 477; Washington v. Washington
Hospital Center, 579 A.2d 177, 179 n.1 (D.C. 1990); W.J. Bremer Co. v.
Graham, 169 Ga. App. 115, 116–17, 312 S.E.2d 806 (1983), cert. denied, 252
Ga. 36, 312 S.E.2d 787 (1984); Halberg v. Young, 41 Haw. 634, 646 (1957);
Green v. A. B. Hagglund & Soner, 634 F. Supp. 790, 796–97 (D. Idaho 1986);
Karagiannakos v. Gruber, 274 Ill. App. 3d 155, 158, 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 Valleny Systems, Inc., 259 Kan. 522, 531, 912 P.2d 703 (1996); Lambert
v. Franklin Real Estate Co., 37 S.W.3d 770, 780 (Ky. App. 2000); Durepo v.
Fishman, 533 A.2d 264, 264–66 (Me. 1987); Gaver v. Harrant, 316 Md. 17,
32–33, 557 A.2d 210 (1989); Salin v. Kloempken, 322 N.W.2d 736, 742 (Minn.
1982); Thompson v. Love, 661 So. 2d 1131, 1135 (Miss. 1995); Powell v.
American Motors Corp., 834 S.W.2d 184, 191 (Mo. 1992); Guenther ex rel.
Guenther v. Stollberg, 242 Neb. 415, 421, 495 N.W.2d 286 (1993); General
Electric Co. v. Bush, 88 Nev. 360, 368, 498 P.2d 366 (1972); Harrington v.
Brooks Drugs, Inc., 148 N.H. 101, 104, 808 A.2d 532 (2002); Russell v. Salem
Transportation Co., 61 N.J. 502, 504, 506, 295 A.2d 862 (1972); DeAngelis
v. Lutheran Medical Center, 58 N.Y.2d 1053, 1055, 449 N.E.2d 406, 462
N.Y.S.2d 626 (1983); Vaughn v. Clarkson, 324 N.C. 108, 111, 376 S.E.2d 236
(1989); Hastings v. James River Aerie No. 2337-Fraternal Order of Eagles,
246 N.W.2d 747, 753 (N.D. 1976); Norwest v. Presbyterian Intercommunity
Hospital, 293 Or. 543, 563, 567, 652 P.2d 318 (1982); Steiner ex rel. Steiner
v. Bell Telephone Co., 358 Pa. Super. 505, 522, 517 A.2d 1348 (1986), aff’d,
518 Pa. 57, 540 A.2d 266 (1988); Taylor v. Medenica, 324 S.C. 200, 222, 479
S.E.2d 35 (1996); Taylor v. Beard, 104 S.W.3d 507, 511 (Tenn. 2003).
The majority cites a case from the United States District Court for the
District of Hawaii, namely, Marquardt v. United Airlines, Inc., 781 F. Supp.
1487 (D. Haw. 1992); see footnote 11 of the majority opinion; which surmises
that the Hawaii Supreme Court would overrule its earlier decision declining
to recognize a cause of action for the loss of parental consortium. See
Marquardt v. United Airlines, Inc., supra, 1492. Until the Hawaii Supreme
Court does so, however, the law in Hawaii is that no such cause of
action exists.
5
I, like the majority, have not found any cases or statutes concerning this
issue in Delaware, Utah, or Virginia, and, for the reasons I stated in footnote 3
of this opinion, I find the law in New Mexico and South Dakota to be unclear.
6
See Fla. Stat. Ann. § 768.0415 (West 2011); La. Civ. Code Ann. art. 2315
(B) (2008); R.I. Gen. Laws § 9-1-41 (b) (2012); see also Iowa Code Ann.
§ 613.15 (West 1999) (allowing for recovery of lost value of services and
support of injured parent, but claim belongs to injured parent, not child).
The Iowa Supreme Court has declined to recognize a cause of action for
loss of parental consortium that can be brought independently by the child.
See Audubon-Exira Ready Mix, Inc. v. Illinois Central Gulf Railroad Co.,
335 N.W.2d 148, 152 (Iowa 1983). Instead, Iowa allows the injured parent
to recover for the lost value of services and support that the injured parent
would have provided to the child but for the injury. See Iowa Code Ann.
§ 613.15 (West 1999).
7
See Hibpshman v. Prudhoe Bay Supply, Inc., 734 P.2d 991, 994 (Alaska
1987); Villareal v. Dept. of Transportation, 160 Ariz. 474, 479, 774 P.2d 213
(1989); Ferriter v. Daniel O’Connell’s Sons, Inc., 381 Mass. 507, 515, 413
N.E.2d 690 (1980); Berger v. Weber, 411 Mich. 1, 13, 303 N.W.2d 424 (1981);
Pence v. Fox, 248 Mont. 521, 526–27, 813 P.2d 429 (1991); Gallimore v.
Children’s Hospital Medical Center, supra, 67 Ohio St. 3d 250–51; Williams
v. Hook, 804 P.2d 1131, 1136 (Okla. 1990); Reagan v. Vaughn, 804 S.W.2d
463, 465 (Tex. 1990), modified on other grounds, Texas Supreme Court,
Docket No. C-9548 (Tex. March 6, 1991); Hay v. Medical Center Hospital,
145 Vt. 533, 537, 496 A.2d 939 (1985); Ueland v. Pengo Hydra-Pull Corp.,
103 Wash. 2d 131, 134, 691 P.2d 190 (1984); Belcher v. Goins, 184 W. Va. 395,
403, 400 S.E.2d 830 (1990); Nulle v. Gillette-Campbell County Joint Powers
Fire Board, 797 P.2d 1171, 1172 (1990).
8
These are but two examples of similar relationships for which liability
under the majority’s newly created cause of action could ultimately exist.
Other possibilities include aunts and uncles and nieces and nephews, step-
parents and stepchildren, foster parents and foster children, and siblings,
to name only a few more. In each of these relationships, it is conceivable
that the adult, although not the child’s natural or legal parent, stands in
loco parentis.
9
The majority pays mere lip service to the principle of stare decisis,
claiming that it may properly overrule Mendillo because, in Hopson v. St.
Mary’s Hospital, 176 Conn. 485, 494–96, 408 A.2d 260 (1979), we overruled
our earlier decision in Marri v. Stamford Street Railroad Co., 84 Conn. 9,
23–24, 78 A. 582 (1911), in which we declined to recognize a claim for loss
of spousal consortium. See footnote 16 of the majority opinion. The only
commonality between this case and Hopson, however, is that they both deal
with consortium claims. In Hopson, this court concluded that its decision
and reasoning in Marri were no longer persuasive because ‘‘a growing
majority of courts have come to recognize a right of action for loss of
consortium in either spouse. . . . The right of a husband to bring an action
for loss of consortium has long been acknowledged in a substantial majority
of the jurisdictions. The right of the wife . . . has now been recognized in
many jurisdictions.’’ (Citation omitted; footnote omitted.) Hopson v. St.
Mary’s Hospital, supra, 495. The conditions that existed in Hopson, however,
do not exist in the present case. As I discussed previously, the majority of
jurisdictions decline to recognize a claim for loss of parental consortium,
and, since our decision in Mendillo, no state has recognized such a claim.
Therefore, the logic that compelled the court in Hopson to overrule Marri
does not compel this court to overrule Mendillo in the present case.
10
The majority does not contend that our holding in Mendillo was clearly
wrong, nor could it. Indeed, Mendillo could not clearly have been wrong
because, when it was decided, more than one half of our sister states
had expressly declined to recognize a cause of action for loss of parental
consortium. See Mendillo v. Board of Education, supra, 246 Conn. 490–91.
Moreover, if Mendillo was clearly wrong, then, surely, the legislature would
have taken some action in the seventeen years since it was decided. For
instance, when this court decided in Craig v. Driscoll, supra, 262 Conn.
339–40, that the state’s Dram Shop Act did not preclude a common-law
negligence action against a purveyor of alcoholic beverages that serves
liquor to an intoxicated patron who subsequently injures a third party, the
legislature took only about four months to effectively overrule this court’s
holding in that case. See Public Acts 2003, No. 03-91, § 1.