No. 90-483
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
JOHN R. PENCE, individually, and
JUDY L. PENCE, individually and as
Guardian Ad item of BRITTNEY PENCE
and JARED PENCE,
Plaintiffs and Appellants,
BINGHAM R. FOX and BARBARA A. FOX,
d/b/a RAINTREE PRODUCTS; HAROLD
STRUCK and BETTY STRUCK, d/b/a CI-ERK OF SUPREME COURT
ALL SEASONS SPAS ; KELLER SUPPLY CO. , 5TATE OF MONTANA
d/b/a KELLER S LEISURE SUPPLY ; and
JOHN DOES I-V,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Norman L. Newhall and Floyd D. Corder argued;
Alexander, Baucus & Linnell, Great Falls, Montana
For Respondent:
Tracy A. Axelberg argued, James A. Aiken (Raintree
Products); Jardine, Stephenson, Blewett and Weaver,
Great Falls, Montana
Lee LeVeque (All Season Spas) ; Conklin, Nybo,
LeVeque & Murphy, Great Falls, Montana
Keith Strong argued (Keller Supply) ; Dorsey &
Whitney, Great Falls, Montana
For Amicus Montana Trial Lawyers Association:
W. William Leaphart argued; Leaphart Law Firm,
Helena, Montana
Heard: April 19, 1991
Filed:
1 *
Justice Fred J. Weber delivered the Opinion of the Court.
Plaintiffs brought this suit arising from personal injuries
sustained by John R. Pence. The District Court for the Eighth
Judicial District, Cascade County, granted defendants' motions,
pursuant to Rule 12(b), M.R.Civ.P., to dismiss loss of consortium
claims of Brittney and Jared Pence, brought by their mother and
guardian, Judy L. Pence. Mrs. Pence, as guardian for the children,
appeals. We reverse and remand for further proceedings on the
merits.
The issue as restated is: Do minor children have a separate
cause of action for loss of parental consortium when a parent is
tortiously injured by a third party and rendered a quadraplegic?
The District Court determined that the children did not state
a claim upon which the Court could grant relief. The District
Court expressly directed immediate entry of judgment against the
children in the interest of judicial economy. The action in behalf
of the parents is pending the outcome of this appeal so that if the
children do have a claim upon which the Court could grant relief,
the cases can be tried together. As alleged in plaintiffs'
complaint, the facts are essentially as follows:
John Pence is the husband of plaintiff, Judy Pence, and father
of plaintiffs, Brittney and Jared Pence. Defendants Harold Struck
and Betty Struck, d/b/a All Seasons Spas, sold and installed a hot
tub in the yard of Connie Jensen. The hot tub was manufactured by
defendants Bingham R. Fox and Barbara A. Fox, d/b/a Raintree
Products. On January 2, 1988, Mr. Pence was using the hot tub.
1
He emerged from the hot tub and trotted a short distance into the
yard whereupon, suddenly and without warning, he was rendered
immediately unconscious and collapsed forward, striking his face
against the frozen ground with such force that his C5 vertebra
burst from the impact and he was rendered a helpless quadriplegic.
Brittany was four years of age and Jared was three years of age at
the time of Mr. Pence's injury.
A look at the history of loss of consortium claims is helpful
in analyzing the issue before this Court. Ancient Roman civil law
provided that only a husband could bring loss of consortium claims
when the loss was caused by intentional torts. This law carried
into the common law of England. Over time the wife was given the
right to bring consortium claims in ecclesiastical courts but not
courts of law. During the 19th century the law was expanded to
give the husband the right to bring consortium claims when the loss
was caused by an act of negligence. With the adoption of the
Married Women's Acts, the wife was finally able to bring consortium
claims in courts of law for loss caused by intentional acts. It
wasn't until 1950 that the law recognized the wife's right to bring
consortium claims for loss caused by negligent acts.
Montana Federal District Court was the first to recognize the
wife's right to sue for loss of consortium in Montana. Duffy v.
Lipsman, 200 F.Supp. 71 (D.Mont. 1961) ; Dutton v. Hightower
(D.Mont. 1963), 214 F.Supp. 298; Hall v. United States (D.Mont.
1967), 266 F.Supp. 671. In 1986, this Court also recognized the
wife's right to sue for loss of consortium claims in Montana in
Bain v. Gleason, (1986), 223 Mont. 442, 726 P.2d 1153.
Montana currently allows loss of consortium claims by a
husband or wife whose spouse has been killed or injured. Montana
also allows loss of consortium claims, pursuant to Montana's
Wrongful Death Statutes, by a parent whose child has been killed,
and by a child whose parent has been killed. Dawson v. Hill & Hill
Truck Lines (1983) 206 Mont. 325, 671 P.2d 589; Ewalt v. Scott
(1983), 206 Mont. 503, 675 P.2d 77. The question is whether this
Court will now recognize the child's right to recover when a parent
is seriously injured rather than killed.
Prior to 1980 no state recognized such a claim. Since 1980
there has been a growing trend to recognize loss of parental
consortium claims. At least ten states now recognize such claims.
(Arizona, Alaska, Vermont, Washington, Wisconsin, Iowa, Michigan,
Massachusetts, Oklahoma, and Texas.) However, the majority of
jurisdictions do not as yet recognize the claim of a child for loss
of parental consortium. (Arkansas, California, Colorado, Florida,
Georgia, Illinois, Minnesota, New York, North Dakota, Ohio, Oregon,
Pennsylvania, Missouri, North Carolina, Tennessee, Maryland,
Louisiana, Nevada, New Jersey, Kansas, Indiana, and 3rd Cir.).
Defendants cite Prosser for the rule that the child's claim
for loss of consortium has not been widely recognized. Prosser,
Torts (4th ed. 1971), §§ 124, 125 at 886, 894. We note that in the
same edition Dean Prosser criticized the failure of the courts to
compensate children. Prosser, Torts (4th ed. 1971), 1 125 at 896.
The defendants argue that because social and economic factors
should be considered before extending to children the right to
consortium claims, the legislature is the appropriate body to
create such an expansion. The courts have the responsibility to
reform common law as justice requires. We agree with and adopt
the following conclusions of the Supreme Courts of Iowa and
Vermont.
The contention that recognition of such a cause of action
is a question for the legislature ignores the fact that
the action for loss of consortium is a creation of the
common law, and that the development of the common law
is within the proper sphere of our authority and
responsibility.
Wietl v. Moes (Iowa, 1981), 311 N.W.2d 259, 266.
[Sluch an argument ignores our responsibility to face a
difficult legal question and accept judicial
responsibility for a needed change in the common law .
.. when the conditions and needs of the society have
changed, judges must adapt the common law to those new
conditions . . . It must also be noted that our
recognition of a new cause of action for the loss of
parental consortium, as in the present case, in no way
precludes the legislature from addressing the subject;
it is still free to act. The legislature may ratify,
limit or reject our holding.
Hay v. Medical Center Hosp. (Vt. 1985), 496 A.2d 939, 945-46. We
reject the defendantst argument that the loss of parental
consortium cause of action should be left solely to the
legislature.
In refusing to recognize a child's right to sue for loss of
consortium for injury to a parent, the District Court premised its
conclusion upon the assumption that loss of consortium actions in
Montana is exclusively statutory rather than common law. The
District Court cited Bain, 223 Mont. at 445, 726 P.2d at 1155,
which stated:
... the basis for a consortium claim lies in Montana
statutes in which husband and wife contract for the
obligation of mutual respect, fidelity, and support.
Section 40-2-101, MCA. We further agree with the court
in Dutton, supra, that consortium includes a legal right
to the aid, protection, affection and society of the
other spouse.
See also Gunning v. General Motors Corp. (1989), 239 Mont. 104,
107, 779 P.2d 64, 66. Section 40-2-101, MCA, reads:
Husband and wife contract toward each other obligations
of mutual respect, fidelity, and support.
Section 40-2-101, MCA, does not Itcreatett cause of action.
the
It merely defines the obligations which inhere in the marriage
relationship and upon which the common law action is based. The
inaccuracy of the defendantst conclusion that the legislature
created the claim through 5 40-2-101, MCA, is proven by the fact
that the statute has been on the books since 1895, but it was not
until 1986 that this Court recognized the claim. The statute
merely codifies the policy behind the common law by recognizing
that spouses contract with one another for mutual obligations.
In the same way that 5 40-2-101, MCA, defines the marriage
obligations upon which the common law action of loss of spousal
consortium is based, 5 40-6-211, MCA, defines the obligation of
support which inheres in the parent-child relationship. Section
40-6-211, MCA, provides:
The parent or parents entitled to custody of a child must
give him support and education suitable to his
circumstances.
The consortium rights of spouses, and parents in the case of
loss resulting from a child's injury or death, and children in the
case of a deceased parent, have arisen not only by statute but by
court decisions extending the common law that once gave only
husbands that right. In 1929 this Court held that "in addition to
support, a wife is entitled to the aid, protection, affection, and
society of her husband.It Wallace v. Wallace (1929), 85 Mont. 492,
516, 279 P. 374, 382. The rationale behind Wallace, Duffv, Dutton,
and Hall, supra, apply equally well to parent-child relationships.
Like the rights of a wife, the rights of the child to support, aid,
protection, affection and society of the parent derive from both
statute and case law. 5 5 40-6-211, 40-6-214, 41-3-102 (3)(c); In
re Krug (1988), 231 Mont. 78, 751 P.2d 171. In addition, the child
has the right to parental discipline, guidance and training.
Coloradots Federal District Court came to the following
conclusions:
While the term ttloss consortiumtt
of has been attached to
the childrentsclaim, the broader term, Itlossof society
and companionshipfUt equally appropriate. Use of the
is
latter term avoids the narrower construction connoting
this right derives primarily from the sexual relationship
incident to marriage. Indeed, loss of consortium is
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. Prosser, Torts 5 125 at 889 (4th ed.
1971) as cited in CJI-Civ.2d 6:7 (1980)1, 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 (supra.)
asserts that the term loss of consortium is equally
appropriate in reference tothe parent-child relationship
to summarize Itthemultitude of rights and duties binding
parents to their children and vice versa.It Clark at 5
10.1 (1968) .
Thus, in the context of the parent-child relationship,
the term consortium encompasses a complex of rights --
care, comfort, guidance, society, companionship -- which
is imbued from the earliest stages of bonding infant to
parent. Indeed, the family unit has been recognized by
the Supreme Court to bear constitutionally protected
aspects. (Citations omitted).
Reighley v. International Playtex, Inc. (D.Colo. 1985), 604 F.Supp.
We also cite with approval the Alaska Supreme Court which
stated:
When a parent is seriously injured, his or her child
suffers a loss of enjoyment, care, guidance, love and
protection, and is also deprived of a role model. Even
courts that deny the parental consortium cause of action
have acknowledged the reality of such emotional and
psychological injury to the child, and the Alaska
legislature has implicitly done so in allowing recovery
by children for loss of consortium under Alaska's
wrongful death statute.
Precluding minor children from maintaining a cause of
action for loss of parental consortium arising from their
parent Is injury would, in our view, be inconsistent with
the legislature's authorization of such recovery when the
parent dies, and with our prior holding in Fruit that a
husband or wife may recover damages for loss of
consortium when an injured spouse survives. The claim
for loss of parental consortium presented in this case
is not sufficiently distinguishable from either spousal
consortium claims in injury cases or children's
consortium claims in death cases to warrant non-
recognition. (Citations ommitted).
Hibpshman v. Prudhoe Bay Supply, Inc. (Alaska 1987), 734 P.2d 991,
We conclude that under the Montana case law and statutes as
developed, minor children are entitled to the support, aid,
protection, affection, society, discipline, guidance and training
of their parent. This policy underlies the "best interests of the
child testn in custody determinations under 5 40-4-212, MCA, and
the right of the child to seek damages under Montana's Wrongful
Death Statute. See 5 5 27-1-512 and 513, MCA, and Ewalt, 206 Mont.
503, 675 P.2d 77. Therefore we hold that minor children who have
been deprived of these rights have a separate cause of action for
loss of parental consortium when a parent is tortiously injured by
a third party and rendered a quadraplegic.
However, we caution that any one element of damages for the
injury may be recovered only once. Damages for support and
education under B 40-6-211, MCA, that go to the benefit of the
child may be recovered by the injured parent, a spouse or by the
child. While these economic losses may be recovered by the injured
parent, a spouse or the child, the damages for loss of parental
aid, protection, affection, society, discipline, guidance and
training are recoverable only by the child. Therefore possible
duplication of damage awards must be considered by the trial court
in order to prevent double recovery for any element of damages.
We approve of the procedure used in the present case where the
consortium claims brought in behalf of the children are combined
with the consortium claims of the injured parent and the spouse.
Such procedure furnishes the opportunity to prevent double recovery
for economic losses such as support and education of the children.
We reverse and remand to the District Court for further
2 4
i
,
Chief Justice