Mendillo v. Board of Education

BERDON, J., with whom KATZ, J.,

joins, concurring in part and dissenting in part. I agree with and join in parts I, II and III of the majority opinion, but I disagree with part IV concerning the rejection of the claim for loss of consortium (sometimes referred to as the loss of society and companionship of a parent)1 by a minor child resulting from a serious injury to the child’s parent. The majority holds that we should recognize an action for loss of spousal consortium under our jurisprudence, but that, as a matter of law, we should reject compensation for a minor child who is injured because he is deprived of the love, affection, care, attention, companionship, comfort and protection of a parent as the result *497of the negligence of a third party. Unfortunately, the issue before us is not raised under an ideal fact pattern,2 but when this court rejects this right for children— indeed, children of tender years — to receive compensation for the loss of society and companionship of a parent as a result of the wrongful conduct of another, it does so for all cases.

I predict that this court will soon look on the decision in this case as the 1979 Hopson3 court viewed the 1911 Marri4 decision in which a spousal loss of consortium claim was denied: that is, this court will conclude that the “reasoning [of the majority in this case is] no longer persuasive and its result [is] unsound.” Hopson v. St. Mary’s Hospital, 176 Conn. 485, 494, 408 A.2d 260 (1979). But, unfortunately, in the interim, children who may be seriously injured as a result of the loss of society and companionship of a parent — injuries that can have an effect on the children for the remainder of their lives — will be denied the right of any compensation *498even if it is the result of the infliction of an intentional tort on the parent. In my view, “[l]ogic, justice and public policy demand [that this court adopt this cause of action in order to protect the] child’s interest in the family relationship.” Williams v. Hook, 804 P.2d 1131, 1136 (Okla. 1990).

First, as an overview, the reasoning that led this court to adopt causes of action for spousal loss of consortium and bystander emotional distress has equal applicability to a cause of action for loss of parental consortium. In Hopson, this court concluded that “the effect of the Marri decision [denying the plaintiff husband’s claim for loss of consortium] is to deny the existence of any harm where harm is most assuredly to be expected. It is a well-settled principle of law that a tortfeasor takes his victim as he finds him. Should the victim be married, it follows that the spouse may suffer personal and compensable, though not physical, injuries as a direct result of the defendant’s negligence and that such injuries should not go uncompensated.” (Emphasis added.) Hopson v. St. Mary’s Hospital, supra, 176 Conn. 493. Likewise, because of the crucial role of the parent in a child’s life, “[s]hould the victim be [aparent], it follows that the [child] may suffer personal and compensable, though not physical, injuries as a direct result of the defendant’s negligence . . . .” Id.; Villareal v. Dept. of Transportation, 160 Ariz. 474, 479, 774 P.2d 213 (1989) (“[F]oreseeability of harm to a victim’s child is as equally foreseeable as harm to a victim’s spouse. Because we have already recognized a cause of action for the victim’s spouse, we reject this argument [which would deny compensation] . . . .”); Hay v. Medical Center Hospital of Vermont, 145 Vt. 533, 539, 496 A.2d 939 (1985) (“we see little difference in terms of remoteness between the situation of a spouse seeking to recover for loss of consortium, and that of a minor child similarly seeking recovery for loss of consortium”); W. *499Prosser, Torts (4th Ed. 1971) § 125, p. 897 (“ [i]t is particularly difficult when recovery is permitted to the wife, [to deny it] to the child”).

Furthermore, the logical extension of Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996), would be to recognize the loss of parental consortium claim for a child. In Clohessy, we concluded that bystander emotional distress, the emotional anguish a person sustains by witnessing a parent or sibling being seriously injured as a result of an accident caused by the negligence of another, was compensable. Id., 46-47. Although the factual predicate in Clohessy was that of a mother witnessing a child fatally injured by a negligent driver, we adopted the rule affording a cause of action for bystander emotional distress for anyone “ ‘closely related to the injury victim,’ ” including a child with respect to his or her parent. Id., 52. We reached this result after determining that the harm suffered by a close relative of an injured victim is “ ‘as foreseeable as the injury itself, for few persons travel through life alone’ id., 47; and that protection of the “personal emotional stability [of the injured victim’s close relative] is worthy of legal protection against unreasonable conduct.” (Internal quotation marks omitted.) Id., 46. Likewise, if the loss of spousal consortium and the emotional distress of a bystander are foreseeable, then logically, the severe emotional anguish a child will suffer as a result of the loss of his parent’s consortium is just as foreseeable. Hoffman v. Dautel, 189 Kan. 165, 168, 368 P.2d 57 (1962) (“[i]t is common knowledge that a parent who suffers serious physical or mental injuiy 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”). Moreover, as will be discussed herein, the child’s interest in the parent’s love, affection, care and guidance is just as *500deserving of legal protection as the spouse’s interest in the same elements.

Despite the majority’s concession that the specific harm alleged in loss of parental consortium actions is foreseeable, it rejects the cause of action on the basis of policy considerations. Upon review of the majority’s arguments, it is clear that they, like the arguments rejected in Hopson for upholding the decision in Marri, are either without merit, without foundation or based upon exaggerated claims.

I

The majority first argues that the logic underlying our decision to adopt the cause of action for loss of spousal consortium in Hopson is not applicable to a parental consortium cause of action because the spousal relationship is different in source and kind from the parent-child relationship. According to the majority, the spousal relationship is different in kind from the parent-child relationship because it is a “ ‘unique human relationship,’ ” and “ ‘the closest entity recognized by society.’ ” I do not question this close bond between husband and wife, but I find the majority’s distinction unpersuasive because the parent-child relationship is “the earliest and most hallowed of the ties that bind humanity . . . .” (Internal quotation marks omitted.) Nulle v. Gillette-Campbell County Joint Powers Fire Board, 797 P.2d 1171, 1173 (Wyo. 1990). As a child gets older, of course, that relationship typically wanes, and, consequently, the damages to be awarded a child for loss of parental consortium decrease accordingly. Indeed, once a child has reached complete independence there generally would be no basis for a claim of loss of parental consortium.

The “parent-child relationship is . . . the wellspring from which other family relationships derive . . . .” Villareal v. Dept. of Transportation, supra, 160 Ariz. *501478; S. Ridgeway, “Loss of Consortium and Loss of Services Actions: A Legacy of Separate Spheres,” 50 Mont. L. Rev. 349, 368 (1989) (“spousal and parent-child relationships are the basis of the American family”).5 For these reasons, many jurisdictions have concluded that “[t]he claim for loss of parental consortium . . . is not sufficiently distinguishable from . . . spousal consortium claims in injuiy cases ... to warrant nonrecognition.” Hibpshman v. Prudhoe Bay Supply, Inc., 734 P.2d 991, 994 (Alaska 1987); see, e.g., Hay v. Medical Center Hospital of Vermont, supra, 145 Vt. 533; Belcher v. Goins, 184 W. Va. 395, 400 S.E.2d 830 (1990); Theama v. Kenosha, 117 Wis. 2d 508, 344 N.W.2d 513 (1984).

The majority argues that the spousal relationship is different in source from the parent-child relationship because it is based on notions of commitment, and because the protected rights of spouses that arise out of their marriage contract are similar to the elements of consortium. The public policy set forth by our statutes and case law demonstrate, however, that the parent-child relationship, like the spousal relationship, is based on the notion of commitment, and is the source of rights similar to the elements of spousal consortium — “the rights of the child to [the] support, aid, protection, affection and society of the parent . . . .” Pence v. Fox, 248 Mont. 521, 526, 813 P.2d 429 (1991).

*502According to our legislature, “[t]he public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and ... to provide a temporary or permanent nurturing and safe environment for children when necessary . . . .” General Statutes § 17a-101 (a). Holdings of this court provide further proof of the commitment a parent owes his or her child, and the child’s legally recognized right to his parent’s consortium. In the case of In re Juvenile Appeal, (Docket No. 9489), 183 Conn. 11, 15, 438 A.2d 801 (1981), this court acknowledged that a parent is obligated to: “(1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) . . . supply the necessary food, clothing, and medical care; (4) ... provide an adequate domicile, and (5) ... furnish social and religious guidance.” (Internal quotation marks omitted.) In Pamela B. v. Ment, 244 Conn. 296, 310, 709 A.2d 1089 (1998), we held that the “right to family integrity . . . encompasses the reciprocal rights of both parent and children . . . the interest of the parents in the companionship, care, custody and management of his or her children . . . and of the children in not being dislocated from the emotional attachments that derive from the intimacy of daily association, with the parent . . . .” (Citations omitted; emphasis added; internal quotation marks omitted.)

Moreover, decisions of the United States Supreme Court over the last thirty years reflect a growing awareness that the legal status of children has changed, like that of women, “from that of a chattel to that of a person entitled to legal redress for wrongs done to [the child].” Note, “The Child’s Right to Sue for Loss of a Parent’s Love, Care and Companionship Caused by Tortious Injury to the Parent,” 56 B.U. L. Rev. 722, 742 (1976). For example, children are now recognized as *503persons under the United States constitution,6 and they enjoy rights protected by the first amendment,7 and the fourteenth amendment.8 In keeping with this recognition of children’s rights, we must afford children the right to bring an action against a tortfeasor for injuries they suffer as a result of the injury inflicted on their parents.

II

The majority asserts that this court should not adopt the loss of parental consortium cause of action because the weight of judicial authority is opposed to it. Contrary to the majority’s assertion, there is an emerging national trend to recognize such claims by children. Before 1980, none of the jurisdictions accepted this claim;9 yet, today, in 1998, fifteen jurisdictions recognize it.10 Moreover, “able criticisms [from scholars] have *504been mounted against [rejecting this cause of action]11 and it must now be recognized that the more liberal view may well gain further adherents.” W. Prosser & W. *505Keeton, Torts (5th Ed. 1984) § 125, p. 936. Furthermore, many of our state trial judges, relying on the underlying logic of such cases as Hopson and Clohessy, have made a determination that the fundamental policy of the law supports extending a tortfeasor’s responsibility to the child of an injured victim.12

*506Even if the majority were correct that the clear trend across the United States is to reject this cause of action “we are not bound by the mere weight of judicial precedent but rather by the rule which embodies the more persuasive reasoning.” Belcher v. Goins, supra, 184 W. Va. 402. Simply put, we do not decide the public policy of this state based upon the numbers game. The “[n]ovelty of an asserted [cause of action] and lack of common-law precedent . . . are no reasons for denying its existence.” Salin v. Kloempken, 322 N.W.2d 736, 741 (Minn. 1982). “Whether we are the first state — or the fiftieth state — to adopt a specific legal proposition, our decision inevitably will be based upon what we deem to be in the best interests of justice and of the citizens of [this] State ... at the time the question is presented *507to us.” Hay v. Medical Center Hospital of Vermont, supra, 145 Vt. 545. “Our oath is to do justice, not to perpetuate error.” (Internal quotation marks omitted.) Theama v. Kenosha, supra, 117 Wis. 2d 519. In my view, in light of the uniqueness of the parent-child relationship and our recognition of children’s legal rights, the analysis of those courts that have adopted the loss of parental consortium cause of action is more persuasive than the analysis of those courts that have rejected it.13

Ill

The majority concludes that public policy does not support recognition of this cause of action because the costs of recognizing it — namely, (1) increased insurance premiums, (2) increased litigation expenses, and (3) double recovery of damages by the child — outweigh the benefits of recognizing it. I cannot accept these reasons because they are based on conjecture and irrelevant concerns.

The majority provides nothing more than conjecture to support its argument that adoption of a cause of *508action for loss of parental consortium “ ‘will impose an added economic burden upon society.’ ” There is no evidence in the record that certain costs will arise if we recognize this cause of action; nor do the parties offer any evidence that certain costs definitely will be imposed on society if we recognize it. Furthermore, it is not as if we would be imposing an economic obligation on an innocent person free from any wrongdoing. On the contrary, the person or entity required to respond to the payment of damages is a wrongdoer— either as the result of a negligent or intentional act.

Moreover, the majority’s concern over the “ ‘significant increases in insurance premiums’ ” that allegedly will result if we adopt this cause of action is misplaced. Insurance practices must adapt themselves to the law, and not the law to insurance practices. Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543, 552, 652 P.2d 318 (1982) (“[a] person’s liability in our law still remains the same whether or not he has liability insurance; properly, the provision and cost of such insurance varies with potential liability under the law, not the law with the cost of insurance”); Ueland v. Pengo Hydra-Pull Corp., 103 Wash. 2d 131, 140, 691 P.2d 190 (1984) (“[w]hen considering the recognition of a new cause of action, the specter of increased insurance rates is one of our least concerns”). The need to compensate children for their loss — indeed to cover the expenses arising out of psychological injuries the child experiences because of a loss of the society and companionship of the parent — outweighs any increase in the costs of insurance.14 Since the majority speculates, I will likewise do so. I suspect that, as in the case *509of the adoption of a cause of action for loss of spousal consortium, the adoption of a cause of action for loss of parental consortium will have no significant or measurable impact on the cost of insurance.

I also disagree with the majority’s concern over increased litigation expenses. Even “if recognition of this cause of action causes more injured parties to seek redress in the courts, this does not argue against such recognition. It is the duty of the courts to redress injuries, and it is expected that injured parties should look to the courts for assistance.” Kizina v. Minier, Superior Court, judicial district of Waterbury, Docket No. 099375 (January 24, 1992) (5 Conn. L. Rptr. 481), citing Hay v. Medical Center Hospital of Vermont, supra, 145 Vt. 533. Because the action for loss of parental consortium is derivative, the claims of the children, as in the present case, would be joined in one action at trial. Thus, no additional burden would be placed on our trial courts and insignificant increases in litigation costs would occur. Even if the children’s action were brought separately, they certainly would be joined for trial purposes. Hopson v. St. Mary’s Hospital, supra, 176 Conn. 494. “Moreover, because a consortium action is derivative of the injured spouse’s cause of action, the consortium claim would be barred when the suit brought by the injured spouse has been terminated by settlement or by an adverse judgment on the merits.” Id.

The majority also argues that recognition of this cause of action would create a significant risk of double recovery by the child — that is, damages awarded the parent and child would overlap. This precise argument was addressed and rejected in Hopson. By trying the underlying parent tort cases with that of the child’s *510claim for loss of consortium, “the danger of improper verdicts will be minimized. For example, while a claim for loss of consortium could include as elements of damages loss of companionship, society, affection . . . and moral support, the recovery in a particular case could be limited to the elements established in that case by means of instructions from the court describing to the jury those damages which are recoverable and those which are not.” Id.

Furthermore, by making this argument, the majority assumes that juries cannot distinguish between a child’s claim for emotional damages and a parent’s claim for pecuniary damages relating to support for the child. This assumption is contrary to the general practice of asking jurors to make fine distinctions in damage awards. I am confident that jurors who presently are asked to distinguish between the claims for damages of each spouse in a loss of spousal consortium action can do the same in a loss of parental consortium action. See W. Prosser, supra, § 125, pp. 896-97 (“[t]he obstacles in the way of satisfactory limitation of recovery [that is, preventing the double compensation of the child] are no greater than in the case of the [spouse]”).

Finally, this alleged problem “may be easily cured by limiting the injured parent’s recovery to the child’s loss of the parent’s pecuniary ability to support the child” and limiting the child’s cause of action to the economic and noneconomic damages that arise from “the loss of the parent’s society and companionship.” Theama v. Kenosha, supra, 117 Wis. 2d 526; see, e.g., Hibpshman v. Prudhoe Bay Supply, Inc., supra, 734 P.2d 995-96; Villareal v. Dept. of Transportation, supra, 160 Ariz. 480; Williams v. Hook, supra, 804 P.2d 1136-37; Hay v. Medical Center Hospital of Vermont, supra, 145 Vt. 541; Belcher v. Goins, supra, 184 W. Va. 403.

*511Notwithstanding its irrational economic fears, the majority cannot and does not deny the fact that development of “a child’s character, disposition, and abilities [has] a corresponding impact on society . . . .” Salin v. Kloempken, supra, 322 N.W.2d 737. Indeed, one of the reasons our municipalities spend large portions of their tax revenues on public education is to ensure that children will develop socially and intellectually in order to have a positive impact on society. Nor can the majority deny that “[b]enefits of the greatest value flow to a child from parental love, society, care and services”; id.; and that the loss of these benefits “can severely impact a child’s development and have a major influence on a child’s welfare and personality throughout life.”15 Villareal v. Dept. of Transportation, supra, 160 Ariz. 478; W. Prosser, supra, § 125, p. 896 (children who lose these benefits suffer “a genuine injury and a serious one”).

Despite these obvious facts, and the majority’s own admission that the recovery of damages will provide some children with “the wherewithal to heal [their] wounds, thereby helping [them] and society at large,” the majority incredibly concludes that the benefits of allowing children to recover damages for their injuries are too uncertain to warrant adoption of this cause of action. Clearly, damages awarded a child “might enable the family to obtain live-in help that could provide not only domestic services, but, incidentally, a measure of guidance and companionship. The child who has suffered an emotional maladjustment as a result of his deprivation would have funds available to pay for *512needed psychiatric treatment. It is not unrealistic to assume that in many cases monetary compensation could make the difference between a child who suffers a permanent handicap due to the loss of a parent’s love and guidance and a child who is able to make a reasonable adjustment to his loss.” (Internal quotation marks omitted.) Theama v. Kenosha, supra, 117 Wis. 2d 523-24.

Even if the majority were correct that the adoption of this cause of action, as defined by the plaintiff, would place an economic burden on society, we can circumscribe the action to lessen its burden, as we did in Clohessy, and thereby prevent its costs from exceeding its benefits. “[C]ourts throughout the country have imposed various fimitations on a loss of [parental] consortium claim that might be appropriate. Thus the action [can be] limited to the time of the child’s minority. Shockley v. Prier, [66 Wis. 2d 394, 401, 225 N.W.2d 495 (1975)]; the jury can be told to consider the actual relationship between child and parent to determine whether it was a loving one, id., also see Dymek v. Nyquist, [128 Ill. App. 3d 859, 868, 469 N.E.2d 659 (1984)]; courts have also required that the child be severely incapacitated before the action is allowed. Reben v. Ely, [146 Ariz. 309, 314, 705 P.2d 1360 (1985)]; Yordon v. Savage, 279 So. 2d 844, 845 (Fla. 1973); Shockley v. Prier, supra [401].” Falconieri v. Choquette, Superior Court, judicial district of New Haven, Docket No. CV960383034S (September 26, 1996) (17 Conn. L. Rptr. 658, 660).

IV

The majority concludes that there is no reasoned or principled justification for this court to adopt a cause of action that is “arbitrarily” limited, “[i]n the constellation of family relationships,” to children and parents. *513First, we did precisely that in Clohessy.16 Furthermore, the majority’s concern for arbitrariness “ignores the importance of the nuclear family in present-day society, as well as the factor of foreseeability. This court [should have] no difficulty in limiting such a cause of action to the two relationships likely to be most severely affected by a negligent injury to a parent, namely, the husband-wife relationship, and that of the parent and minor child.” (Emphasis in original.) Theama v. Kenosha, supra, 117 Wis. 2d 524. “ ‘The distinction between the interests of children and those of other relatives is rational and easily applied. Most children are dependent on their parents for emotional sustenance. This is rarely the case with more remote relatives.17 Thus, by limiting the plaintiffs in the consortium action to the victim’s children, the courts would ensure that the losses compensated would be both real and severe.’ ” Id., 524-25, quoting note, supra, 56 B.U. L. Rev. 738.

Finally, when determining whether our public policy should recognize a duty for loss of parental consortium, we must view the practical aspects of this injury. I posit this situation. Should not the drunken driver who causes serious injury to the parent of a child of tender *514years, which results in such severe psychological injuries that psychiatric treatment is required for the child, pay for the child’s treatment and compensate the child for all of his or her consequential damages?

Because the recognition of the cause of action for loss of parental consortium: (1) is logically consistent with our prior holdings in Hopson v. St. Mary’s Hospital, supra, 176 Conn. 485, and Clohessy v. Bachelor, supra, 237 Conn. 31; (2) is consistent with our legislature’s and this court’s acknowledgment that a child’s interest in the love, affection, care and guidance of his or her parent must be protected; (3) would create important direct benefits for the child, and indirect benefits for society; and (4) would not require arbitrary limitations; this court should adopt it. Dean Pound recognized as early as 1916 that even though, “[a]s against the world at large a child has an interest ... in the society and affection of the parent . . . the law has done little to secure these interests.” R. Pound, “Individual Interests in the Domestic Relations,” 14 Mich. L. Rev. 177, 185 (1916). Nevertheless, today, the majority concludes, for public policy reasons, that this court should not do anything to protect a child’s interests in the most important relationship in our society — that of the parent and child.

Accordingly, I dissent.

“While the term ‘loss of consortium’ has been attached to the children’s claim, the broader term, ‘loss of society and companionship,’ is equally appropriate. Use of the latter term avoids the narrower construction connoting this right derives primarily from the sexual relationship incident to marriage. Indeed, loss of consortium is ‘a useful though ambiguous term having a rather old-fashioned ring today.’H. Clark, Domestic Relations § 10.1 (1968). While companionship may include sexual relations [see, e.g., W. Prosser, Torts (4th Ed. 1971) § 125, p. 889], courts have continued to regard loss of consortium to embrace all of those values — tangible and intangible— inherent in the family relationship. In his treatise, Clark . . . asserts that the term loss of consortium is equally appropriate in reference to the parent-child relationship to summarize ‘the multitude of rights and duties binding parents to their children and vice versa.’ [H. Clark, supra, § 10.1].” Reighley v. International Playtex, Inc., 604 F. Sup. 1078, 1081 (D. Colo. 1985).

The facts of this case do not set forth the ideal scenario with respect to this cause of action — that is, the plaintiff children in this case sought damages arising out of injuries their mother experienced as a result of an alleged wrongful termination of her employment. To shape our law predicated on a fact pattern that has no appeal not only undermines our jurisprudence, but denigrates the common sense of our juries that appropriately dispose of unwarranted claims.

Instead of the facts in the present case, assume these facts: As a result of another driver’s negligent operation of his automobile, a mother is paralyzed and suffers severe brain injuries resulting in the impairment of her visual and speech functions. At the time of the accident, she has two children, ages two and six. The mother has an action based upon negligence against the driver; and the father has a cause of action against the driver for the loss of spousal consortium; Hopson v. St. Mary’s Hospital, 176 Conn. 485, 496, 408 A.2d 260 (1979); but, according to the majority, the children would not. That is simply not logical. It would seem to me that the children in this scenario, who are deprived of their mother’s care, guidance, love and affection, suffered serious foreseeable damages and the policy of our law should permit them to recover against the negligent driver.

Hopson v. St. Mary’s Hospital, 176 Conn. 485, 408 A.2d 260 (1979).

Marri v. Stamford Street R. Co., 89 Conn. 9, 78 A. 582 (1911).

The fundamental importance of the parent-child relationship to our society is illustrated by the fact that, in most cases in which an adult is seriously injured, the victim’s child will suffer more deprivation than the victim’s spouse. See, e.g., Hay v. Medical Center Hospital of Vermont, supra, 145 Vt. 537-38 (“Not only are the losses suffered by a parent and a child similar in many respects, but the child is in a uniquely difficult position to make up for the loss of a parent. ‘[Wjhile an adult is capable of seeking out new relationships in an attempt to fill in the void of his or her loss, a child may be virtually helpless in seeking out a new adult companion.’ ”); note, “The Child’s Right to Sue for Loss of a Parent’s Love, Care and Companionship Caused by Tortious Injury to the Parent,” 56 B.U. L. Rev. 722, 742 (1976) (“[sjince the child in his formative years requires emotional [nurturing] to develop properly, the loss of love, care and companionship is likely to have a more severe effect on him than on an adult” [emphasis added]).

See Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 511, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969) (right of students to freedom of expression in public school).

See, e.g., Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969); Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943) (right to refuse to salute flag).

See, e.g., Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975) (right to notice and informal hearing in school discipline cases); Gomez v. Perez, 409 U.S. 535, 93 S. Ct. 872, 35 L. Ed. 2d 56 (1973) (right of illegitimate children to maintain civil action for nonsupport against parents).

This, of course, explains why the Restatement (Second) of Torts, § 707A (1976) , which predates all of the minority view cases, does not support the adoption of this cause of action. When the Restatement “was revised in 1969, the American Law Institute . . . [denied] liability to a minor child for loss of parental support and care, with the comment that the rule was stated with some reluctance on the part of several of the drafting group, and under compulsion of the case law.” (Internal quotation marks omitted.) Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543, 546, 652 P.2d 318 (1982). In light of the trend in the case law since the Restatement was published, this court should not look to § 707A for support on this issue.

Those states that have adopted a child’s cause of action for the loss of parental consortium include the following in reverse chronological order: Gallimore v. Children’s Hospital Medical Center, 67 Ohio St. 3d 244, 617 N.E.2d 1052 (1993); Marquardt v. United Airlines, Inc., 781 F. Sup. 1487 *504(D. Haw. 1992); Higley v. Kramer, 581 So. 2d 273 (La. App.), cert. denied, 583 So. 2d 483 (La. 1991); Pence v. Fox, supra, 248 Mont. 521; Williams v. Hook, supra, 804 P.2d 1131; Reagan v. Vaughn, 804 S.W.2d 463 (Tex. 1990); Belcher v. Goins, supra, 184 W. Va. 395; Nulle v. Gillette-Campbell County Joint Powers Fire Board, supra, 797 P.2d 1171; Villareal v. Dept. of Transportation, supra, 160 Ariz. 474 (reversing Jeune v. Del E. Webb Construction Co., 77 Ariz. 226, 269 P.2d 723 [1954]); Hibpshman v. Prudhoe Bay Supply, Inc., supra, 734 P.2d 991; Ueland v. Pengo Hydra-Pull Corp., 103 Wash. 2d 521, 691 P.2d 190 (1984); Hay v. Medical Center Hospital of Vermont, supra, 145 Vt. 533; Theama v. Kenosha, supra, 117 Wis. 2d 508; Berger v. Weber, 82 Mich. App. 199, 267 N.W.2d 124 (1978), aff'd, 411 Mich. 1, 303 N.W.2d 424 (1981); Ferriter v. Daniel O’Connell’s Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980); see also Fla. St. Ann. § 768.0415 (West Sup. 1995).

Those states that have adopted a cause of action for parents for the loss of a child’s consortium include the following in reverse chronological order. United States v. Dempsey, 635 So. 2d 961 (Fla. 1994); Jameson v. Hawthorne, 635 A.2d 1167 (R.I.1994); Enochs v. Brown, 872 S.W.2d 312 (Tex. App. 1994); Pino v. Gather, 633 So. 2d 638 (La. App. 1993); Gallimore v. Children’s Hospital Medical Center, supra, 67 Ohio St. 3d 244; Gillispie v. Beta Construction Co., 842 P.2d 1272 (Alaska 1992); Masaki v. General Motors, 71 Haw. 1, 780 P.2d 566 (1989); Davis v. Elizabeth General Medical Center, 228 N.J. Super. 17, 548 A.2d 528 (1988); Jacobs v. Anderson Building Co., 430 N.W.2d 558 (N.D. 1988); Frank, M.C., P.C. v. Superior Court, 150 Ariz. 228, 722 P.2d 955 (1986); Shockley v. Prier, 66 Wis. 2d 394, 225 N.W.2d 495 (1975); Hayward v. Yost, 72 Idaho 415, 242 P.2d 971 (1952); see also Mass. Ann. Laws ch. 231, § 85X (Law. Co-op. Sup. 1994); Wash. Rev. Code Ann. § 4.24.010 (West 1988). The courts in Illinois are divided: compare Barkei v. Delnor Hospital, 176 Ill. App. 3d 681, 531 N.E.2d 413 (1988) (no cause of action) with Dymek v. Nyquist, 128 Ill. App. 3d 859, 469 N.E.2d 659 (1984) (recognizing cause of action).

Most law review commentaries favor recognition of the loss of parental consortium cause of action: T. DiResta, “Children’s Rights: The Parental Consortium Dilemma and Connecticut Law,” 14 Quinnipiac L. Rev. 437 (1994) (tracing history of cause of action for loss of consortium to present and advocating adoption of cause of action for loss of parental consortium in Connecticut); note, “Ipcock v. Gilmore: North Carolina’s Refusal to Extend Recovery to the Infant Secondary Tort Victim,” 66 N.C. L. Rev. 1337 (1988); note, “Parental Consortium in Florida: Our Children Have No Place to Turn,” 13 Nova L. Rev. 295 (1988); R. Petrilli, “A Child’s Right to Collect for Parental Consortium Where Parent is Seriously Injured,” 26 J. Fam. L. 317, 347 (1988); comment, “Loss of Parental Consortium: Why Children Should Be Compensated,” 18 Pac. L.J. 233, 258 (1986); note “Compensating the Child’s Loss of Parental Love, Care and Affection,” 1983 U. Ill. L. Rev. 293, 316 (1983); note, “Torts— *505Loss of Consortium — Right of a Child to a Cause of Action for Loss of Society and Companionship When the Parent is Tortiously Injured,” 28 Wayne L. Rev. 1877, 1887 (1982); note, “Child’s Right to Sue for Negligent Disruption of Parental Consortium,” 22 Washburn L.J. 78, 101 (1982); note, “Expanding Loss of Parental Society and Negligent Infliction of Emotional Distress — Allowing Recovery Despite Worker’s Compensation Exclusive Remedy Provisions: Ferriter v. Daniel O’Connell’s Sons, Inc.,” 13 U. Tol. L. Rev. 1401, 1435 (1982); R. Cooney & K. Conway, “The Child’s Right to Parental Consortium,” 14 J. Marshall L. Rev. 341, 351 (1981); note, “Actions for Loss of Consortium in Washington: The Children Are Still Crying,” 56 Wash. L. Rev. 487, 492 (1981); note, “Recovery for Loss of the Injured Parent’s Society: Ferriter v. Daniel O’Connell’s Sons, Inc.,” 3 Det. C.L. Rev. 987, 1005 (1981); note, “Torts — Cause of Action for Loss of Parental Society Due to Negligent Act Recognized. Ferriterv. Daniel O’Connell’s Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980),” 12 Cumb. L. Rev. 211, 225 (1981); comment, “The Child’s Cause of Action for Loss of Consortium,” 5 San Fern. V. L. Rev. 449, 467 (1977); J. Love, “Tortious Interference with the Parent-Child Relationship: Loss of an Injured Person’s Society and Companionship,” 51 Ind. L.J. 590, 634 (1976); note, supra, 56 B.U. L. Rev. 742; note, “The Child’s Claim for Loss of Consortium Damages: A Logical and Sympathetic Appeal,” 13 San Diego L. Rev. 231, 251 (1975); R. Pound, “Individual Interests in the Domestic Relations,” 14 Mich. L. Rev. 177, 185-86 (1916).

The following treatises criticize states for refusing to extend a tortfeasor’s liability to children of accident victims: H. Clark, Domestic Relations (1968) § 10.6, p. 279 (“[i]f the argument for recognizing the wife’s claim for loss of consortium is convincing, it should be equally so with respect to the child’s claim”); W. Prosser, supra, § 125, p. 896 (“[i]t is not easy to understand and appreciate this reluctance to compensate the child who has been deprived of the care, companionship and education of his mother, or for that matter his father, through the defendant’s negligence”).

My research indicates that the following eighteen trial judges of this state have recognized a child’s cause of actionfor loss of parental consortium: Moreira v. Tamura, Superior Court, judicial district of Danbury, Docket No. 324663 (May 20, 1997) (1997 W.L. 297738) (Stodolink, J.); Jacobs v. G.E. Co., Superior Court, judicial district of Waterbury, Docket No. CV960135905 (March 24, 1997) (19 Conn. L. Rptr. 330) (Leheny, J.); Falconieri v. Choquette, Superior Court, judicial district of New Haven, Docket No. CV960383034S (September 26, 1996) (17 Conn. L. Rptr. 658) (Corradino, J.); Reed v. Norwalk Hospital, Superior Court, judicial district of Stamford-Norwalk, Docket No. *506CV950146525 (August 27, 1996) (17 Conn. L. Rptr. 486) (Stevens, J.); Orsini v. Wells Fargo Armored Service Corp., Superior Court, judicial district of Waterbury, Docket No. CV960131445S (August 2, 1996) (1996 W.L. 456965) (Vertefeuille, J.); Condon v. Guardiani, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV950052203S (March 16, 1996) (16 Conn. L. Rptr. 466) (Skolnick, J.); Davis v. Davis, Superior Court, judicial district of Middlesex, Docket No. CV95077180 (March 15, 1996) (1996 W.L. 156011) (Stanley, J.); Foschini v. Leblanc, Superior Court, judicial district of Waterbury, Docket No. 0121072 (March 17, 1995) (14 Conn. L. Rptr. 167) (Flynn, J.); Dastych v. New Britain General Hospital, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV940537645S (November 29, 1994) (1994 W.L. 711188) (Mulcahy, J.); Cherry v. ABF Freight Systems, Inc., Superior Court, judicial district of New Haven, Docket No. CV930354865S (June 29, 1994) (12 Conn. L. Rptr. 101) (Hartmere, J); Shabazz v. Price, Superior Court, judicial district of New Haven, Docket No. CV930353763 (April 22, 1994) (11 Conn. L. Rptr. 331) (Hodgson, J.); Paradiso v. Nasinka, Superior Court, judicial district of Waterbury, Docket No. 0112154 (February 8, 1994) (11 Conn. L. Rptr. 53) (W. Sullivan, J.); Condron v. Pollak, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV920128731S (November 18, 1993) (10 Conn. L. Rptr. 411) (Dean, J.); Sliney v. Denisanko, Superior Court, judicial district of New Haven, Docket No. 334928 (August 6, 1993) (9 Conn. L. Rptr. 537) (Gordon, J.); Beckwith v. Akus, Superior Court, judicial district of New London, Docket No. 524967 (March 15, 1993) (8 Conn. L. Rptr. 487) (Hurley, J.); Henderson v. Micciche, Superior Court, judicial district of Waterbury, Docket No. 0105625 (May 1, 1992) (6 Conn. L. Rptr. 317) (Murray, J.); Kizina v. Minier, Superior Court, judicial district of Waterbury, Docket No. 0993755 (January 24, 1992) (5 Conn. L. Rptr. 481) (Santos, J.).

Indeed, some of those jurisdictions reject the loss of parental consortium cause of action on the basis that the issue should be addressed by the legislature. Koskela v. Martin, 91 Ill. App. 3d 568, 571, 414 N.E.2d 1148 (1981); Norwest v. Presbyterian Intercommunity Hospital, 52 Or. App. 853, 856-60, 631 P.2d 1377 (1981), aff'd, 293 Or. 543, 652 P.2d 318 (1982). Clearly, because the cause of action for loss of consortium was initially created and developed by courts, it is the court’s responsibility to make changes in the common law “if [it] no longer fits the realities of the present day.” Shockley v. Prier, 66 Wis. 2d 394, 397, 225 N.W.2d 2d 495 (1975).

Other jurisdictions deny recovery for loss of parental consortium based on the misguided belief that damages are too uncertain and the child’s injury is of a noncompensatory nature. See, e.g., Hoesing v. Sears, Roebuck & Co., 484 F. Sup. 478, 480 (D. Neb. 1980); Borer v. American Airlines, Inc., 19 Cal. 3d 441, 449, 563 P.2d 858, 138 Cal. Rptr. 302 (1977). This argument lacks merit because juries in our state are able to assess the appropriate award in cases in which damages, such as recovery of pain and suffering, are just as intangible as those of the loss of a parent’s consortium. Furthermore, even though money is “a poor substitute for the loss of a parent’s society and companionship, it is the only workable way that our legal system has *508found to ease the party’s tragic loss.” Theama v. Kenosha, supra, 117 Wis. 2d 523.

“[W]e believe that any burden to society is offset by the benefit to the child, who through compensation may be able to adjust to his or her loss with stability. Ultimately, society will benefit as well, since ideally the child will become a normal adult who is capable of functioning as such in his or *509her own social setting.” Theama v. Kenosha, supra, 117 Wis. 2d 525; Berger v. Weber, 411 Mich. 1, 3, 303 N.W.2d 424 (1981); Hay v. Medical Center Hospital of Vermont, supra, 145 Vt. 545.

One law review commentary notes that “[i]n studies of families in which one of the parents was chronically or physically ill, the children had higher rates of illnesses themselves. Higher incidences of juvenile delinquency and psychiatric disorders were also evident.’ Comment, ‘The Child’s Cause of Action for Loss of Consortium,’ 5 San Fern. V. L. Rev. 449, 461 (1977) . . . .” (Internal quotation marks omitted.) Theama v. Kenosha, supra, 117 Wis. 2d 515.

In Clohessy v. Bachelor, supra, 237 Conn. 56, “we conclude[d] that a bystander may recover damages for emotional distress under the rule of reasonable foreseeability if the bystander satisfies the following conditions: (1) he or she is closely related to the injury victim, such as the parent or the sibling of the victim; (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim’s condition or location; (3) the injury of the victim must be substantial, resulting in his or her death or serious physical injury; and (4) the bystander’s emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response.”

“[I]t is foreseeable that a child will be severely emotionally impaired by a serious injury to the parent, whereas it is not usually expected that a relative or friend will experience such an impairment.” Theama v. Kenosha, supra, 117 Wis. 2d 525 n.16.