dissenting.
I dissent because I believe plaintiff has stated ultimate facts sufficient to constitute a claim. ORCP 21A. I desire, however, to acknowledge the truly excellent discussion by the author of the majority opinion insofar as parts I, II and III are concerned. Indeed, I find little to dispute in the majority opinion preceding the discussion of the 1973 legislative amendments to the action for damages for death resulting from the wrongful act of another. It is with the rest of the opinion, commencing 293 Or at 565, 652 P2d at 330, that I find that my views diverge from those of the majority. In coming to my contrary conclusion, I desire to acknowledge the assistance of the author of the majority opinion in shaping my remarks. Both in oral conference and in written suggestion of form and content, he has been of invaluable aid to me in expressing the holding I would reach.
*571As noted in the majority opinion, the legislature in 1973 recognized that the loss the immediate family suffers from the death of a member is something above and beyond “mere” pecuniary loss and fashioned the measure of recovery accordingly. See also Prauss v. Adamski, 195 Or 1, 23-24, 244 P2d 598 (1952), in which this court had recognized some twenty years earlier a like concept:
“Furthermore, we are of the opinion that the words ‘pecuniary loss’, as applied to the damages suffered by beneficiaries of a deceased wife and mother, mean something more than the actual earning of money or money’s worth or contributions to the support of the beneficiaries at or before the date of the death, where there was a reasonable expectation of pecuniary benefit from the continuance of the life. It consists not only of the loss of financial assistance which the beneficiaries might reasonably be expected to have received from the deceased had her career not been shortened by the act of defendant, but also the loss of other things which have a pecuniary worth, such as the loss of a mother’s care and attention to the physical, moral, and educational welfare of her children, and a husband’s loss of her services in the household.”
The measure of damages thus legislatively recognized was apportioned according to each beneficiary’s loss. Clearly, the 1973 legislation reaffirmed and extended liability for ordinary negligence to persons whose loss is an “indirect” or “secondary” consequence of immediate injury to another. If such extended, consequential liability were deemed a departure from principle and an anachronistic anomaly in negligence law, the attention given the subject in 1973 provided an occasion to reconsider it. The legislature and citizens concerned with tort liability had the opportunity to reexamine whether recovery of damages for wrongful death was properly premised on a tortfeasor’s liability to the decedent, represented by his estate, for the destruction of the decedent’s own economic future, or whether the premise was compensation for the consequential losses of his surviving family, or perhaps both.
Neither the legislature nor witnesses questioned the propriety of consequential liability to members of the victim’s immediate family. In fact, the legislature extended this liability to include nonpecuniary, emotional losses that *572in no way could be a substitute for the victim’s own economic loss. The amendments were opposed in committee testimony on the grounds that the emotional injury of lost companionship cannot be compensated by money and that such compensation would lead to increased litigation and higher insurance costs, the very arguments made by the present defendants and accepted by the California court in Borer v. American Airlines, Inc., 19 Cal 3d 441, 563 P2d 858, 138 Cal Rptr 302 (1977). The legislature rejected these objections to liability for the nonpecuniary loss of society and companionship of a spouse, parent, or child.
Of course, this does not mean that the legislature implicitly enacted a parallel liability when nonfatal injuries to the initial victim are corresponding losses on the stated family members. It shows, however, that the usual limitation of negligence liability recognized in Ore-Ida Foods v. Indian Head, 290 Or 909, 627 P2d 469 (1981), is not an ironclad principle. It does not always stand in the way of ordinary liability for negligently inflicted injury based on its foreseeability. It has not been a principle in the narrow area of immediate family relationships. That much is true of the long existing parent’s action under ORS 30.010, as well as of the spouse’s action for loss of consortium, whatever else distinguishes them from the present claim. The legislature might have repealed the husband’s action instead of extending it to the wife in 1941, just as it might have reconsidered the individual family member’s consequential claims in 1973, if the limitation of liability to immediate victims were thought an overriding principle of negligence law. Obviously it has not been thought so. Sometimes it has yielded to compensation for consequential injury suffered by a tort victim’s spouse, parent, or child.
The present plaintiff has pleaded an ordinary negligence claim except insofar as it may lie beyond the scope of negligence liability by resulting from injury to a third person, his mother, and by claiming damages for loss of society and companionship. The majority has discussed why the first of these is not an insuperable obstacle. In retaining and expanding the claims there reviewed, the legislature did not merely retain historic anomalies. Its abolition of actions for alienation of affection shows that it will deal with perceived anachronisms in family law. Rather, the *573legislature’s choice to retain and expand compensation for those family members closest to an injured tort victim echoes implicit social assumptions and values that also form much of the common law.
The implicit assumptions reflected in these highly selective torts do not concern the justice of compensating consequential injury as such. They do not extend to all who in fact suffer genuine material or emotional injury in the loss of the immediate victim’s support or society. They do not even extend to every close relative. Rather, what the history of treatment of these torts reflects is the value that has long and continuously been attached specifically to the family relationships between married spouses1 and between parents and children. The premise of recovery in tort was not emotional dependency in fact but assumptions arising from these specific relationships, though, of course, a recovery would depend on the facts in the individual case.
The barrier that limits negligence liability to the initially injured victim and prevents recovery by others foreseeably injured as a consequence, as in Ore-Ida Foods, therefore does not govern here. Nor does the nature of the harm for which the child seeks compensation bar recovery. As the majority acknowledges, this court has allowed recovery based on ordinary negligence for various kinds of psychic or emotional harm, unaccompanied by physical injury, when the negligent defendant invaded some legally protected interest of plaintiff separate from the infliction of the psychic or emotional injury itself. As between a child and its custodial parent, the very concept of legal custody expresses the set of mutual obligations and interests imposed and protected by law.2 The child’s interest in the *574relationship of custody and its accompanying rights surely is no less than that of the parent which was held to support a negligence claim in McEvoy v. Helikson, 277 Or 781, 562 P2d 540 (1977).
It cannot be said that the consequential injury to this plaintiff was beyond the class of foreseeable injuries as a matter of law. This is not a case of negligence toward one of many unknown potential victims, such as a collision with a vehicle carrying an unknown driver or passenger, or liability for unsafe business premises, where foreseeability might be reduced to an issue of mere statistics. Here we deal only with liability in a relationship of professional responsibility for the health of a known patient, a 25 year old woman. A factfinder could well conclude that defendants should have foreseen that such a patient would be likely to have one or more minor children, if not indeed that defendants knew that she did. The issue of foreseeability is one for determination on the evidence adduced at trial. Stewart v. Jefferson Plywood Co., 255 Or 603, 469 P2d 783 (1970).
For these reasons, I would hold plaintiff has pleaded a claim under the ordinary principles of liability for injury foreseeably resulting from defendants’ negligence.
See Huard v. McTeigh, 113 Or 279, 232 P 658 (1925) (no common law marriage in Oregon), cf. Ore-Ida Foods v. Gonzalez, 43 Or App 393, 602 P2d 1132 (1979), rev den 288 Or 335 (1980) (no wrongful death recovery under ORS 30.020(1) for unmarried cohabitant).
See, e.g., ORS 109.010 (mutual duties of support), ORS 163.535-ORS 163.555 (criminal abandonment, child neglect, nonsupport).
Burnette v. Wahl, 284 Or 705, 588 P2d 1105 (1978), recognized the child’s legal claim to “parental nurturing,” 284 Or at 710, but concluded that intentional parental failure to provide it did not give rise to a damage action against an offending parent, on the theory that the legislature had provided other remedies *574for parental failure. In this case, the alleged injury is not due to any default on the part of the parent but is caused by a third party. It cannot be said that such remedies as change of custody or termination of parental rights and intervention by public agencies are legislative substitutes for the liability of a third party who tortiously disrupts the parental relationship.