Borer v. American Airlines, Inc.

MOSK, J.

I dissent.

Each of the policy arguments which the majority marshal against recognizing the cause of action for loss of consortium in the parent-child relationship was expressly considered and rejected by this court in Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382 [ 115 Cal.Rptr. 765 , 525 P.2d 669 ].

First, the majority assert that because deprivation of consortium is an “intangible, nonpecuniary” loss, it is an injuiy which “can never be compensated.” (Ante, p. 447.) In Rodriguez , however, we held that loss of consortium is principally a form of mental suffering, and like all such subjective disabilities, it is compensable in damages. (Id., at p. 401.) Nor was this new law, as we showed by quoting with approval from earlier decisions of this court.

*454 Thus in Beagle v. Vasold (1966) 65 Cal.2d 166, 172 [ 53 Cal.Rptr. 129 , 417 P.2d 673 ], we said that “One of the most difficult tasks imposed upon a jury in deciding a case involving personal injuries is to determine the amount of money the plaintiff is to be awarded as compensation for pain and suffering. No method is available to the jury by which it can objectively evaluate such damages, and no witness may express his subjective opinion on the matter. [Citation.] In a very real sense, the jury is asked to evaluate in terms of money a detriment for which monetary compensation cannot be ascertained with any demonstrable accuracy.” “Yet,” we emphasized in Beagle (at p. 176), “the inescapable fact is that this is precisely what the jury is called upon to do.”

Again, in Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892-893 [ 103 Cal.Rptr. 856 , 500 P.2d 880 ], Justice Tobriner wrote for a unanimous court that pain and suffering is a convenient label that includes not only physical pain, but also “fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal. [Citations.] Admittedly these terms refer to subjective states, representing a detriment which can be translated into monetary loss only with great difficulty. [Citations.] But the detriment, nevertheless, is a genuine one that requires compensation [citations], and the issue generally must be resolved by the ‘impartial conscience and judgment of jurors who may be expected to act reasonably, intelligently and in harmony with the evidence.’ [Citations.] [K] Indeed, mental suffering frequently constitutes the principal element of tort damages (Rest.2d Torts, § 905, com. c); awards which fail to compensate for pain and suffering have been held inadequate as a matter of law. [Citations.]” I am utterly unable to reconcile this thorough statement of settled principles with the majority’s description of “the inadequacy of monetaiy damages to make whole the loss suffered.” {Ante, p. 447.)

The majority reject plaintiffs’ claim for a second reason, i.e., that “because of its intangible character, damages for such a loss are very difficult to measure.” {Ante, p. 448.) This merely restates the first reason, and was likewise rejected in Rodriguez . The loss here is no more and no less “intangible” than that experienced by Mrs. Rodriguez, whose husband became permanently incapacitated, and yet we held the valuation problem to be difficult but manageable. Quoting (at p. 402 of 12 Cal.3d) from Millington v. Southeastern Elevator Co. (1968) 22 N.Y.2d *455 498 [ 293 N.Y.S.2d 305, 312 , 239 N.E.2d 897 , 36 A.L.R.3d 891 ] we denied that loss of consortium is “ ‘too personal, intangible, and conjectural to be measured in pecuniaiy terms by a jury. This argument has no merit. The logic of it would also hold a jury incompetent to award damages for pain and suffering, [f] Money is a poor substitute for the loss of an only child or the pain resulting from serious injuries. Likewise, it cannot truly compensate a wife for the destruction of her marriage, but it is the only known means to compensate for the loss suffered and to symbolize society’s recognition that a culpable wrong—even if unintentional—has been done.’ ”

The majority next reason that the asserted difficulty in measuring damages “leads in turn to risk of double recovery.” {Ante, p. 448.) Again we dismissed the identical argument in Rodriguez , explaining that the alleged “risk” can be avoided by the use of such well-known procedural devices as joinder of actions and appropriate instructions to the jury. (12 Cal.3d at pp. 404-407.)

The majority concede that we rejected the foregoing arguments in Rodriguez , but now claim they do not “read”—i.e., interpret—Rodriguez as holding that the arguments “do not merit consideration.” {Ante, p. 448.) On this point, however, Rodriguez is crystal clear and requires no interpretation: far from implying that the double recovery argument might have some merit in another context, we characterized it in Rodriguez as wholly “without substance,” and quoted with approval decisions which derided it as “fallacious,” “fictional,” and a “bogey” that is “merely a convenient cliche” for denying liability. {Id., at p. 404.)

The majority next seek to distinguish Rodriguez on three grounds, but none is convincing. First, the majority claim Rodriguez “pointed out” that the spousal action for loss of consortium rests “in large part” on the impairment of the sexual life of the couple. {Ante, p. 448.) Rodriguez “pointed out” no such thing; on the contrary, we there reasoned that the nonsexual loss suffered by a spouse is at least as great as the sexual loss: “Nor is the wife’s personal loss limited to her sexual rights. As we recognized in Deshotel (50 Cal.2d at p. 665), consortium includes ‘conjugal society, comfort, affection, and companionship.’ An important aspect of consortium is thus the moral support each spouse gives the other through the triumph and despair of life. A severely disabled *456 husband may well need all the emotional strength he has just to survive the shock of his injury, make the agonizing adjustment to his new and drastically restricted world, and preserve his mental health through the long years of frustration ahead. He will often turn inwards, demanding more solace for himself than he can give to others. Accordingly, the spouse of such a man cannot expect him to share the same concern for her problems that she experienced before his accident. As several of the cases have put it, she is transformed from a happy wife into a lonely nurse. Yet she is entitled to enjoy the companionship and moral support that marriage provides no less than its sexual side, and in both cases no less than her husband.” (Final italics added; 12 Cal.3d at pp. 405-406.)

Precisely the same reasoning can be invoked in the case at bar: a severely disabled mother may well need all her emotional strength to survive the shock of her injury, to adjust to her newly restricted life, and to preserve her mental health through the ensúing years of frustration; and she will therefore often turn inwards, demanding more solace and comfort from her children than she can give to them in return. By its terms, Rodriguez applies to such a situation.

Two further points must be made in this connection, however obvious they may seem. Rodriguez cannot fairly be limited, as the majority imply, to sexually active couples: surely a husband or wife of advanced years suffers a no less compensable loss of conjugal society when his or her lifetime companion is grievously injured by the negligence of another. And even if Rodriguez were to be subjected to such a harsh restriction, surely the majority do not mean to hold that sexual activity is more worthy of the law’s concern than the affection, comfort, and guidance which loving parents bestow on their children.

The majority’s second purported ground of distinction may conveniently be reduced to syllogistic form: (1) if loss of parental consortium were actionable, a single accident would give rise to as many claims as the victim had minor children; (2) in our society the victim is likely to have several such children but can have only one spouse; therefore (3) to recognize the cause of action for loss of parental consortium would result in a much larger liability for individual defendants and a much larger total cost to the insured community than flow from Rodriguez. (Ante, pp. 448-449.)

*457 The minor premise of the majority’s argument—that an accident victim is likely to have several children under age 18—is, however, demonstrably inaccurate. In Rodriguez we observed that “In our society the likelihood that an injured adult will be a married man or woman is, substantial,” and supported that statement by a reference to the Statistical Abstract of the United States published annually by the Bureau of the Census. ( 12 Cal.3d at p. 400 & fn. 19.) That document showed, for example, that during the peak working years of. ages 25 to 65, the proportion of all men who were married ranged between 77.8 percent and 89.7 percent. {Ibid.) Contrary to the majority’s supposition, the same source reveals that the proportion of families with several minor children is very low: as of 1974, 46 percent of the families in the United States had no minor children and an additional 19.2 percent had only one such child, making over 65 percent of the total; conversely, only 9.5 percent of families had three minor children, and the entire class of “4 or more” such children comprised a mere 7.4 percent. 1

The last of the quoted figures establishes that, contrary to the majority’s implication, the case at bar is completely atypical of American society in the second half of the 20th century. If all the families with four or more minor children constitute only 7.4 percent of the total, the proportion of families with, as here, the extremely large number of nine children—eight of whom were minors at the time the complaint was filed—must be a minute fraction of 1 percent. In these circumstances it is manifestly misleading for the majority to assert that the fact the victim has nine children “illustrates” this ground of distinction. {Ante, p. 449.)

For the same reason' I see no relevance in the majority’s further observation that the assertion of the nine children’s individual causes of action in addition to the father’s claim for loss of spousal consortium and the mother’s suit for personal injuries “demonstrates the extent to which recognition of plaintiffs’ asserted cause of action will multiply the tort liability of the defendant.” {Ante, p. 449.) The only point it “demonstrates” is that 9 plus 2 equal 11. It certainly does not support the majority’s claim that significant multiplications of liability will be frequent events.

*458 Not only do the statistics show the majority’s concern to be unwarranted, they also confirm the verdict of common sense in this matter, i.e., that plaintiffs actually ask us to take a smaller, not a larger, step than we took in Rodriguez . Inasmuch as adult, emancipated children who are no longer living in the family home could prove little if any damage from loss of parental consortium, I assume the majority are most troubled by the prospect of claims by minor children. (See ante, p. 449.) Upon reflection, it will be seen that such children inevitably comprise a much more limited class than spouses, for two reasons: not all married persons have children; and of those who do, they are parents of minor children for a far shorter period of time than they are spouses. It is therefore not surprising that although more than three-quarters of the adult population is married, almost half of such households—46 percent—have no minor children whatever. It follows that recognition of the cause of action for loss of parental consortium will result in a lesser rather than a greater effect on individual liability and overall insurance costs than our approval of the corresponding action by a spouse in Rodriguez . v

The majority’s third proposed ground of distinction (ante, p. 449) deserves little comment. Emphasis is placed on the fact that no state has recognized the cause of action for loss of parental consortium, while a substantial number had permitted a spousal consortium action by the time we decided Rodriguez . (12 Cal.3d at pp. 389-390.) But the latter fact was invoked in Rodriguez to justify our departure from a directly contrary decision of this court—a hurdle we do not face here. Even while emphasizing the out-of-state authorities, moreover, we expressly warned that although we should be mindful of the trend “ ‘our decision is not reached by a process of following the crowd.’ ” (Id., at p. 392.)

When that crowd is marching in the wrong direction, we have not heretofore hesitated to break ranks and strike out on our own. I need not list the many instances in which this court has initiated new trends in the law of personal torts by extending the protection of the courts to previously neglected classes of accident victims. A sufficient example is Rowland v. Christian (1968) 69 Cal.2d 108 [ 70 Cal.Rptr. 97 , 443 P.2d 561 , 32 A.L.R.3d 496 ], in which we judicially abolished the ancient common law distinctions between invitee, licensee and trespasser, and brought the latter two classes within the shelter of the fundamental tort doctrine that every person is responsible for injury caused by his lack of ordinary care in the management of his property. (Civ. Code, § 1714.)

*459 The majority attempt to distinguish Rowland on the grounds that we deal here with a cause of action “for solely intangible damages, attended with problems of multiplication of claims and liability.” (Ante, p. 450.) But these grounds have not only been repudiated in Rodriguez , they also miss the point of Rowland : in that case we were likewise faced with an essential unanimity of our sister jurisdictions, yet we rejected their rule for California because we believed it to be “contrary to our modern social mores and humanitarian values.” ( 69 Cal.2d at p. 118 .) We would do well to be guided by those same values in the task at hand.

I conclude that there is no escaping the conflict between the reasoning of the majority herein and the letter and spirit of Rodriguez . Yet the majority repeatedly reaffirm the holding of that decision. One can only infer that the majority’s true motivation is neither the claimed inadequacy of monetary compensation for this loss, nor the difficulty of measuring damages, nor the danger of disproportionate liability. These are mere window-dressing, designed to lend an appearance of logic and objectivity to what is in fact a purely discretionary exercise of the judicial power to limit the potential liability of common law tortfeasors. The majority suggest their actual incentive earlier in the opinion, when they reason that the victim foreseeably has not only a husband, children, and parents, but also “brothers, sisters, cousins, inlaws, friends, colleagues, and other acquaintances who will be deprived of her companionship. No one suggests that all such persons possess a right of action for loss of [the victim’s] consortium; all agree that somewhere a line must be drawn.” (Ante, p. 446.)

I agree that it must, but I cannot subscribe to the majority’s ad terrorem argument for determining the proper place to draw such a line. The majority raise the spectre of liability not only to the victim’s spouse but also to a Gilbert and Sullivan parade of “his sisters and his cousins, whom he reckons up by dozens,” then dismiss that possibility with the unimpeachable observation that no one is suggesting the latter be compensated. The implication lingers, however, that such demands will become irresistible if the rights of the victim’s children are recognized in the case at bar.

Again we rejected a similar argument in Rodriguez (12 Cal.3d at pp. 402-403), relying principally on our decision in Dillon v. Legg (1968) *460 68 Cal.2d 728 [69 Cal.Rptr; 72, 441 P.2d 912 , 29 A.L.R.3d 1316 ]. The teaching of those cases is that the rights of a proposed new class of tort plaintiffs should be forthrightly judged on their own merits, rather than by indulging in gloomy speculation on where it will all end. As we summarized in Rodriguez , “That the law might be urged to move too far, in other words, is an unacceptable excuse for not moving at all.” ( 12 Cal.3d at p. 404 .)

When we focus accordingly on the precise issue of whether a minor child should have a cause of action for negligent deprivation of parental consortium, the decision is not difficult. The majority readily concede both “the reality [and] the magnitude of the injury” suffered by plaintiffs herein. (Ante, p. 453.) And as shown above, the obstacles to recovery for such injury are essentially illusoiy: monetary damages are no less adequate and no more difficult to fix than in other cases of mental suffering, and recognition of this cause of action will have a smaller effect on liability and insurance costs than our decision in Rodriguez—indeed, in a substantial proportion of instances it will have no such effect at all. It follows that the case is controlled by “the general principle that a person is liable for injuries caused by his failure to exercise reasonable care in the circumstances” (Rowland v. Christian (1968) supra, 69 Cal.2d 108, 112 ), and the complaint should be held good against a demurrer.

There is, in short, no valid excuse for denying these children their day in court. Justice, compassion, and respect for our humanitarian values require that the “line” in this matter be drawn elsewhere.

I would reverse the judgment.

Appellants’ petition for a rehearing was denied June 2, 1977. Bird, C. J., and Mosk, J., were of the opinion that the petition should be granted.

Statistical Abstract of the United States (96th ed. 1975) page 42, table No. 56. The same table discloses that these proportions have remained remarkably constant over the past 25 years, varying by only a few percentage points throughout that period.