I dissent.
Bolstered by the self-evident proposition that tortfeasors’ liability must be limited, the majority decide that a plaintiff who witnessed the tortious *280injury of the woman with whom he shared a stable and significant relationship but to whom he was not married, may not state a cause of action for negligent infliction of emotional distress or loss of consortium. They concede that this artificial limitation has no relationship to the nature or foreseeability of the plaintiff’s injury, factors usually considered important in defining the perimeters of tort liability. Rather, they posit that the “no marriage—no recovery” rule is justified for policy reasons. One need barely scratch the surface of these purported policies to discover their hollowness. The convenience and certainty of a foolproof bright line is not sufficient to justify denying recovery to an entire class of deserving plaintiffs on the arbitrary ground of marital status.
Negligent Infliction of Emotional Distress
In Dillon v. Legg (1968) 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316], we were faced with the same general question posed by this case—the circumstances under which a plaintiff who is injured upon witnessing the tortious injury of another may recover damages against the tortfeasor. We acknowledged the need to limit liability and reiterated the well-accepted maxim that one’s duty is limited by the risk which his or her negligent conduct foreseeably entails. (Id. at p. 739.) We further observed that foreseeability depends upon the circumstances presented by each case and “no immutable rule can establish the extent of that obligation for every circumstance of the future.” (Id. at p. 740.) Recognizing the need for a principled yet flexible framework for limiting liability, we offered guidelines for determining foreseeability in a given case. These guidelines were based on the plaintiff’s physical, temporal and relational proximity to the primary victim at the time of the accident.
It is in the context of defining foreseeability that the relationship between the primary victim and the plaintiff is relevant. Dillon observed that a defendant is more likely to foresee the emotional injury of a nearby person who is closely related to the primary victim than he or she is to foresee injury of an unrelated or distantly related bystander. (Id. at p. 741.)
The majority do not conclude that the plaintiff was unrelated or distantly related to his injured lover. Nor do they challenge the general proposition that the sheer number of unmarried cohabitants in our society makes it foreseeable that injury of an adult will result in emotional suffering by his or her intimate partner. Given the widespread reality and acceptance of unmarried cohabitation, a reasonable person would not find the plaintiff’s emotional trauma to be “remote and unexpected.” This should end the inquiry. The parties’ closeness is only pertinent to foreseeability; once *281foreseeability is established, the nature of their relationship has no logical connection to the plaintiff’s legal standing.
Even if there were some relevant purpose other than assessing foreseeability to inquire into the relationship between the plaintiff and the victim, there is no rational reason to limit recovery to married persons. The majority nevertheless dredge up boilerplate policy arguments to justify denying relief to deserving but unmarried plaintiffs.
A. The State's Interest in Marriage
The majority contend that the state’s interest in the institution of marriage is inhibited to the extent unmarried persons are granted the same rights as married persons. It is difficult to fathom how granting relief to a person who is already injured, regardless of marital status, will detract from society’s interest in marriage. Presumably, a person who would not otherwise choose to marry would not be persuaded to do so in order to assure his or her legal standing in a future personal injury action should that person have the misfortune of witnessing the serious injury of his or her spouse. Moreover, no one proposes any new restrictions on the recovery of married plaintiffs. Marriage would maintain its preferential status since married persons are presumed to be “closely related” for the purposes of Dillon. Rather, the proposal is merely to elevate unmarried cohabitants to a neutral status by permitting them to prove on a case-by-case basis that their relationship is equivalent in all relevant respects to a good marriage and equally deserving of legal protection.
We have acknowledged that society benefits from the stability and structure provided by the institution of marriage. (Marvin v. Marvin (1976) 18 Cal.3d 660, 684 [134 Cal.Rptr. 815, 557 P.2d 106]; Norman v. Unemployment Ins. Appeals Bd. (1983) 34 Cal.3d 1, 9 [192 Cal.Rptr. 134, 663 P.2d 904].) The Legislature has expressed the state’s policy favoring formal marriage in statutes governing the solemnization of marriage (Civ. Code, §§ 4100-4309), and in statutes defining the rights and responsibilities of spouses (Civ. Code, §§ 5100-5138). “The state’s policy in favor of marriage, however, does not imply a corresponding policy against nonmarital relationships.” (Norman, supra, 34 Cal.3d at p. 14 (dis. opn. of Broussard, J.).) Nor does it imply that the values underlying the state’s interest in marriage flourish only within the confines of that institution.1
*282Nevertheless, the majority cling to the untenable notion that only married couples can create families which promote society’s interests. They treat tort recovery as a benefit stemming from the marital compact as if only those persons who choose to marry have any legitimate expectation that the law recognize the value of their relationships or the depth of their feelings. 2 Not only are these assumptions offensive, but they ignore the reality of our evolving social fabric and the corresponding accommodations made in both statutory and decisional law.
While the marital relationship is accompanied by a well-defined set of legal rights and obligations, the law also protects analogous rights and obligations voluntarily undertaken by unmarried cohabitants. (Marvin, supra, 18 Cal.3d 660.) And the Legislature has granted unmarried cohabitants the equivalent legal rights provided marital couples in the fields of housing, credit and family relations.3 Depriving unmarried persons of compensation for injuries in tort no more advances the state’s interest in marriage than would restrictions on their acquisition of housing or credit. The trend in this state is toward removing legal distinctions based on marital status that serve only to burden the unmarried without advancing some corresponding societal interest.
B. Burden on the Courts
The majority next express concern that courts would be unduly burdened by a standard which required them to determine whether the plaintiff has met his or her burden of proving that his or her relationship is “stable and significant.” In the past, this court—including the author of the majority opinion—has soundly rejected the argument that compensation should be denied to all plaintiff's because of the difficulty of determining which plaintiffs are deserving and how much they deserve. (Rodriguez v. Bethlehem *283Steel (1974) 12 Cal.3d 382, 401-404 [115 Cal Rptr. 765, 525 P.2d 669]; Dillon, supra, 68 Cal.2d at pp. 742-743.)4
The capability of courts and juries to make sensitive factual determinations is regularly demonstrated in cases, like this one, in which loss of consortium is alleged. There the trier of fact must calculate the amount of damages sustained by the plaintiff due to the intangible loss of relational interests that include love, companionship, emotional support, society and sexual relations. (Rodriguez, supra, 12 Cal.3d at pp. 404-405; Krouse v. Graham (1977) 19 Cal.3d 59, 70 [137 Cal.Rptr. 863, 562 P.2d 1022].) This assessment often requires consideration of evidence concerning the quality and nature of the plaintiff’s relationship with his or her partner before and after the partner’s injury. (11 Cal. Practice (rev. 1976) Loss of Consortium, § 139:4, pp. 59-60; see also Annot. (1976) 74 A.L.R.3d 805.) Whether the purpose is to determine legal standing or to assess the measure of damages, the same inquiry concerning the plaintiff’s relationship is made and the same kind of evidence properly considered.
In Rodriguez, supra, 12 Cal.3d at page 401, we held that the difficulty of measuring loss was not a sufficient justification to deny compensation, and we relied on jurors to act “ ‘reasonably, intelligently and in harmony with the evidence.’ ” (Ibid., quoting Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892-893 [103 Cal.Rptr. 856, 500 P.2d 880].) The same principles should apply here. Assessing the stability and significance of a relationship is certainly no more burdensome than quantifying subjective and intangible emotional loss, and we should have confidence in the ability of the fact finder to “separate wheat from chaff.” (Bulloch v. United States (D.N.J. 1980) 487 F.Supp. 1078, 1088.)
Despite the majority’s exaggerated fears of unpredictable and inconsistent results, the proposed standard would not be applied in a conceptual vacuum. As the court in Butcher v. Superior Court (1983) 139 Cal.App.3d 58 [188 Cal.Rptr. 503, 40 A.L.R.4th 539] observed, evidence of the stability and significance of a relationship can be demonstrated by reference to several objective factors, including “the duration of the relationship; whether the parties have a mutual contract; the degree of economic cooperation and *284entanglement; exclusivity of sexual relations; [and] whether there is a ‘family’ relationship with children.” (P. 70.) The court might also consider how the couple represents their relationship to family, friends, neighbors and coworkers; and correspondingly, how they are viewed by others.
The majority’s concern about the intrusion of privacy involved in the inquiry is clearly misplaced. An unmarried plaintiff stating a Dillon claim supra, 68 Cal.2d 728) places at issue the quality and nature of his or her relationship. Presumably, cohabiting adults can decide for themselves whether the risk that a lawsuit will result in invasion of their privacy is worth the potential recovery. Moreover, courts have the inherent discretion to fashion protective orders to protect litigants from unnecessarily intrusive inquiry. In any case, denying legal standing to an injured plaintiff is a strange way to protect him or her from intrusive litigation.
C. Limitation of Liability
The majority’s final justification for denying recovery is that liability must stop somewhere. As a general proposition, I agree that a line must be drawn. However, I do not share in the majority’s enthusiasm for crude, bright lines. In my view, recovery should not be cut off on arbitrary, definitional grounds but on functional grounds that correspond with real loss. “As the commentators have suggested, the problem should be solved by the application of the principles of tort, not by the creation of exceptions to them. Legal history shows that artificial islands of exceptions, created from the fear that the legal process will not work, usually do not withstand the waves of reality and, in time, descend into oblivion.” (Dillon, supra, 68 Cal.2d at p. 747.)
Only tortfeasors lucky enough to have injured a de facto rather than a de jure spouse benefit from a bright line based on marriage. An approach that grants recovery to those plaintiffs foreseeably and genuinely injured by a negligent defendant’s acts both advances the goals of tort compensation and sufficiently limits liability. To that end, a standard based on the significance and stability of the plaintiff’s relationship is workable and fair.
The majority’s prediction of an ever-expanding class of “closely related” plaintiffs is just as empty now as it was in Dillon, supra, 68 Cal.2d at pages 743-748 and Rodriguez, supra, 12 Cal.3d at pages 402-403. “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.” (Borer, supra, 19 Cal.3d at p. 460, (dis. opn. of Mosk, J.).)
*285Loss of Consortium
In addition to mental distress from witnessing the death of his loved one, plaintiff allegedly suffered the distinct injury of lost consortium. For the same policy reasons utilized to deny recovery under the first theory, the majority denies recovery under the second theory as well. In addition to the policies of certainty, judicial convenience and the state’s interest in promoting marriage, the majority fall back on the well-worn argument that extending liability to unmarried cohabitants is not supported by precedent. (But see Butcher, supra, 139 Cal.App.3d 58; Bulloch, supra, 487 F.Supp. 1078.)
For many years, this court and others relied on the lack of precedent to refuse to extend the cause of action for lost consortium to women. (See Deshotel v. Atchison, T. & S. F. Ry. Co. (1958) 50 Cal.2d 664 [328 P.2d 449] and cases cited therein.) Relying on the Legislature to update the law, the court clung to the common law rule which denied legal standing to women despite the crumbled foundation upon which the rule rested. The old rule defined consortium only in terms of the husband’s property interest in his wife as chattel. Because the husband owed no services to his wife and the wife had no independent legal identity, she suffered no legally cognizable loss when her husband was injured. (Prosser & Keeton, The Law of Torts (5th ed. 1984) § 125, pp. 931-932; Lippman, The Breakdown of Consortium (1930) 30 Colum. L. Rev. 651, 651-653.)
When the Legislature failed to correct this artifact of medieval mentality, we eliminated the inequality by entirely abolishing the common law cause of action for lost consortium. (West v. City of San Diego (1960) 54 Cal.2d 469, 475-478 [6 Cal.Rptr. 289, 353 P.2d 929].) Finally, in Rodriguez v. Bethlehem Steel, supra, 12 Cal.3d 382, we resurrected the common law action for lost consortium and made the remedy available to both men and women. Recognizing the inherent capacity of the common law to adjust to evolving social realities, we announced the obvious—that a wife’s loss of consortium was in every respect equivalent to that of a husband, and equally worthy of compensation. (Ibid.)
The majority, however, ignore the lesson of Rodriguez and retreat to the unfortunate pattern of refusing to acknowledge the obsolescence of assumptions upon which existing law is based. As noted, the notion that a valid legal marriage is a prerequisite to a cause of action for lost consortium has its origin in a proprietary entitlement theory that viewed marriage as vesting in the husband a property interest in his wife’s services.5 (See Meade, *286Consortium Rights of the Unmarried: Time for a Reappraisal (1981) 15 Fam.L.Q. 223, 226, 241-242.) But the law no longer regards women as property nor consortium as limited to the services owed by women to their husbands. The modern view regards consortium as a package of relational interests, including love, companionship, emotional support, and sexual relations. The marital status of the plaintiff has no more bearing on his or her standing to claim injury to these interests than does age or socioeconomic status. Accordingly, there is no principled reason to perpetuate the fiction that only marital partners suffer compensable loss of consortium.
By failing to harmonize the law with present societal conditions, the majority abdicate the court’s responsibility for the upkeep of the common law. As we observed in Rodriguez, supra, 12 Cal.3d 382, 394, “ ‘The inherent capacity of the common law for growth and change is its most significant feature. Its development has been determined by the social needs of the community which it serves. It is constantly expanding and developing in keeping with advancing civilization and the new conditions and progress of society, and adapting itself to the gradual change of trade, commerce, arts, inventions, and the needs of the country.’ [Citations.] . . . But that vitality can flourish only so long as the courts remain alert to their obligation and opportunity to change the common law when reason and equity demand it.”
Conclusion
For the reasons stated, I would reverse the decision of the trial court and direct it to give plaintiff an opportunity to prove his causes of action for negligent infliction of emotional distress and loss of consortium.
On September 15, 1988, the opinion was modified to read as printed above.
It is instructive to consider the rationale behind the well-accepted maxim that marriage serves as the building block of society. One commentator did so by roughly classifying the functions served by marital relationships. First, they provide the setting for procreative activity and thus act as a transmitter of culture and a means to perpetuate society. Second, they serve as cooperative economic units which increase the well-being of the spouses as well as *282that of society. Third, they serve an emotional, psychological and sexual function. The importance of these functions to the individual and to society is what makes the relationship worthy of legal protection. Some cohabital relationships serve these functions to the same extent as do marriages, and are thus equally deserving of legal recognition and protection. (Note, Loss of Consortium: Should California Protect Cohabitants’ Relational Interest? (1985) 58 So.Cal.L.Rev. 1467, 1475-1478.)
Though the majority has not directly addressed the question, presumably their position that marriage is the sine qua non to recovery would preclude any gay or lesbian plaintiff from stating a Dillon cause of action based on the injury of his or her partner. (Accord Coon v. Joseph (1987) 192 Cal.App.3d 1269 [237 Cal.Rptr. 873].) Clearly the state’s interest in marriage is not advanced by precluding recovery to couples who could not in any case choose marriage. The categorical exclusion of same-sex couples particularly highlights the injustice of an approach that recognizes only those commitments ratified by the state.
See Government Code section 12955, subdivisions (a)-(d), (f), (g) (housing); Government Code section 12955, subdivision (e) (credit for housing); Civil Code sections 7000-7021 (Uniform Parentage Act) (family relations).
See also Justice Mosk’s dissenting opinion in Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441 [138 Cal.Rptr. 302, 563 P.2d 858] in which he attacked the majority’s use of these same justifications for holding that a child may not maintain a cause of action for loss of parental consortium. “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.” (P. 459.)
Even courts that have expressly rejected the common law proprietary theory of consortium have perpetuated the idea that consortium “springs from the marriage contract.” (See Hitaffer v. Argonne Co. (D.C. Cir. 1950) 183 F.2d 811, 816 [87 App. D.C. 57, 23 A.L.R.2d *2861366] cert. den. 340 U.S. 852 [95 L.Ed. 624, 71 S.Ct. 80], the first case to reject the common law theory of consortium and to extend the cause of action to women.) Dictum to this effect in Hitaffer which is often cited can be traced to an 1889 case. (Bennett v. Bennett (1889) 116 N.Y. 584, 590 [23 N.E. 17, 19].) This assumption likely reflects the Victorian belief in the moral superiority of marriage.