dissenting.
I dissent because I do not agree with the statement in the majority opinion that "[t]he history of the legal recognition of the importance of family relationships and the protection of those relationships has, in Oregon at least, been a history of legislative, not judicial, change.” 52 Or App at 856.
The legislature has recognized and protected family relationships in the statutes relied upon by the majority: ORS 30.010 (the right of a mother to bring an action for loss of consortium); ORS 30.010 (the right of a mother to bring an action for injury to her child); and ORS 30.020 (the right of a child to bring an action for the wrongful death of *862a parent). The Supreme Court has also recognized new causes of action in which family relationships are involved. See Cowgill v. Boock, 189 Or 282, 218 P2d 445 (1950) (minor child may sue parent for willful or malicious tort); Apitz v. Dames, 205 Or 242, 287 P2d 585 (1955) (wife has action against husband for intentional injuries); Mallison v. Pomeroy, 205 Or 690, 291 P2d 225 (1955) (a child may sue for injuries received before birth).
The statutes cited by the majority do not represent the kind of statutory scheme referred to in Burnette v. Wahl, 284 Or 705, 588 P2d 1105 (1978), upon which the majority also relies. It cannot be said here, as the Supreme Court said in Burnette, that
" * * * the statutory enactments demonstrate that the legislature has put its mind to the deprivations of which plaintiff * * * [is] alleged to be [the victim] and has attempted to remedy such situations by enacting a vast panoply of procedures, both civil and criminal * * Burnette v. Wahl, supra, at 710.
Nor can it be said that judicial recognition of this action might ”* * * interfere with the total legislative scheme * * *.” Id at 712.
I agree with the majority’s analysis of Mallison v. Pomeroy, supra, and I believe this case presents a situation like Mallison in which the Supreme Court recognized an action by a child for injuries received before birth. The court noted that the legislature had made certain enactments regarding the subject of pre-natal injury and concluded that there was no reason that the court should not proceed along the lines established by thé legislature. That is what judicial recognition of plaintiffs cause of action would do here. The legislature has recognized the significance of the parent-child relationship and I see no reason why we should not proceed along those established lines, as was done in Mallison, in recognizing plaintiffs cause of action.
Negligence law has traditionally been common law and has developed through judicial action. Although the legislature has the prerogative to enact negligence statutes, I do not believe that the courts are precluded from participating in the development of that law unless there is *863a demonstrated legislative intention to develop a comprehensive statutory scheme to regulate a particular area of tort law. There is no such comprehensive scheme which would preclude this court from recognizing plaintiff’s action.
Because I believe this is a proper subject for the court to consider, it is necessary to evaluate defendants’ other contentions that the court should not allow this cause of action.
Under a straightforward analysis of negligence concepts it appears that defendants may be held liable to plaintiff for the damages resulting from their actions. An action for negligence requires that there be a duty and a breach of that duty which was the cause in fact of some legally cognizable damage to plaintiff. Brennen v. City of Eugene, 285 Or 401, 405, 591 P2d 719 (1979). As to the concept of duty, the Supreme Court stated in Brennen:
"In negligence law, 'duty* is simply 'an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’ Mezyk v. National Repossessions, [241 Or 333, 336, 405 P2d 840 (1965)], quoting W. Prosser, Law of Torts 333 (3d ed 1964). As a general rule, the scope of the duty owed is governed by the concept of 'foreseeability,’ and a defendant whose act injures another will be held liable for the injury if the injury was a reasonably foreseeable consequence of the act. * * 285 Or at 406. And see Allen v. Shiroma/Leathers, 266 Or 567, 514 P2d 545 (1973).
I, therefore, look at whether the injury suffered by plaintiff was a reasonably foreseeable consequence of defendants’ actions. The question of foreseeability is one for the finder of fact unless
"* * * plaintiffs injury and the manner of its occurrence was so highly unusual that we can say as a matter of law that a reasonable man, making an inventory of the possibilities of harm which his conduct might produce would not have reasonably expected the injury to occur. Stated in another way, the question is whether the circumstances are out of the range within which a jury could determine that the injury was reasonably foreseeable.” (footnote omitted) Stewart v. Jefferson Plywood Co., 255 Or 603, 609-610, 469 P2d 783 (1970).
*864I conclude that it is entirely possible for a jury to find that defendants could have foreseen that severe injury to Shirlene Norwest caused by their negligence would result in injury to her ability to care for her minor son and thereby cause damage to that son.
The issue of causation is also generally a question of fact. For legal causation to exist the act of the defendant must be a substantial factor in bringing about the injury to the plaintiff. Brennen v. City of Eugene, 285 Or at 413; Campbell v. Carpenter, 279 Or 237, 566 P2d 893 (1977). There can be no doubt here that under the allegations of plaintiff’s complaint defendants’ actions were a substantial factor in bringing about the injury alleged.
It is around the question of whether defendants’ actions resulted in "some legally cognizable damage to plaintiff,” Brennen v. City of Eugene, supra, that there may be some controversy in this case. Plaintiff himself did not receive either physical injury or injury to property as a result of defendants’ alleged negligence. Recovery by plaintiff depends upon whether the injury plaintiff has alleged to the parent-child relationship resulting from defendants’ negligence is a legally cognizable injury. The answer to the question depends in part on the historical development of legal recognition and protection of family relationships, and in part on policy considerations regarding the costs and difficulties of allowing the type of recovery sought here.
Legal recognition of the importance of family relationships and protection of those relationships has developed and changed. As I have indicated, both the courts and the legislature have been active in this process.
Parents also currently have a right of action for injury to a child. ORS 30.010.1 This action, which originally was only in the father, arose from the conception of the father as master with a right to the services of his children *865much like the original action for loss of consortium. Prosser, Law of Torts § 124, 873 (4th ed 1971). As the legal existence of the wife gained recognition the action developed into one which could be brought by both parents.
The change in the legal status of children has come even more slowly than that of women, with many of the rights of minors being recognized only recently.2 The significance to the child of the parent-child relationship has been recognized in the fact that children now have a cause of action for the wrongful death of a parent under ORS 30.020.3 That action includes damages for pecuniary loss and for "loss of the society, companionship and services of the decedent; * * *.” ORS 30.020(2)(d).
Although the Supreme Court in Burnette v. Wahl, supra, disallowed a tort action by children against their mothers for damages incurred because of the failure to provide parental care, nurture and companionship, the court noted that the legislature has indicated "* * * a strong state policy of requiring the kind of parental nurturing, support and physical care of children which the defendants here are alleged to have denied their children.” 284 Or at 712.4 The concurring and dissenting opinion of Justice Lent in Burnette makes special note of the increasing recognition by experts of the importance of the parent-child relationship and the damage that can be done when that relationshp is destroyed.
In addition, this court has noted in custody proceedings that "[c]hildren are entitled to the love, companionship and guidance of both of their parents.” Warren v. *866Warren, 19 Or App 671, 674, 528 P2d 1088 (1974); and see Delf and Delf, 19 Or App 439, 528 P2d 96 (1974).
In light of the significance of the parent-child relationship and the legal recognition of that importance, in conjunction with the fact that the injury for which damages are sought here are recognized in an action for a parent’s wrongful death, I conclude that the injury to plaintiff was to a legally cognizable interest.
Despite the fact that plaintiffs cause of action would appear, analytically, to be allowable, this type of claim has not received much acceptance as of yet. Of the jurisdictions which have considered the question, by far the majority have rejected the child’s cause of action for loss of parental society.5 Two states have recently allowed the action, however: Michigan in Berger v. Weber, 411 Mich 1, 303 NW 2d 424, (1981), and Massachusetts in Ferriter v. Daniel O’Connell’s Sons, Inc.,_Mass_, 413 NE2d 690 (1980).6
Although courts have recognized the conceded natural justice of a child’s claim for loss of parental society7 and have been aware of the extensive commentary favoring such claims,8 the claims have generally been denied. Several arguments have been accepted by the various courts which may all be summarized in one word: policy. The *867policy arguments are well catalogued and reviewed in the California case, Borer v. American Airlines, Inc., 19 Cal 3d 441, 138 Cal Rptr 302, 563 P2d 858 (1977). I will consider the arguments in the groups in which they appear to fall. I perceive four such groups, although many of the arguments are related: I) lack of legal entitlement; II) creation of the cause of action should be left to the legislature; III) excessive costs of allowing such a claim; and IV) practical difficulties.
I
Although it is true that children in this state do not have a legal right to require that their parents give them the companionship, society and affection whose loss is at stake here, see, Burnette v. Wahl, supra, the wrongful death statute does provide for recovery by children of precisely those damages for the death of a parent. ORS 30.020. One of the reasons that there is a reluctance to allow children to sue their parents for failure to provide parental society is concern for interference in family relationships, but that is not present in a cause of action in which a third party is charged with negligent injury to the parent-child relationship. The legislature has recognized that a child has an expectation of parental society which is protected if the parent is killed as a result of the wrongful action of another. That expectation is also appropriately protected when the parent is so severely injured that the parent-child relationship is seriously interfered with even if the parent remains alive.
n
The majority decision is based on the argument that the creation of this type of action is better left to the legislature than to the courts. I have already discussed why I believe the majority is mistaken. The legislature has *868recognized the interest of the child in the parent-child relationship when the parent dies as the result of the wrongful action of another. I see no reason why the child’s interest in the parent-child relationship should not be protected when the parent is seriously injured by the wrongful action of another.
Ill
The next group of arguments concerns the costs that it is suggested will be incurred by allowing this type of action. This includes increased judicial costs suggested by the possibility of multiple suits by numerous plaintiffs, not only numerous children of an injured parent but also other more distant family members or even "friends and neighbors” making claims for loss of society and companionship. It also involves the issue of how the line will be drawn as far as the extent of injury to the parent for which recovery will be allowed. Finally, the argument is made that allowing this type of action would result in excessive damages being assessed against a defendant and would cause an increase in insurance costs which will be passed on to society as a whole.
As to the question of who can recover, my analysis of whether there has been an injury to a legally cognizable interest would confine this action to the loss of parental society. The parent-child relationship is of particular importance and has been so recognized. Other persons would have a much more difficult time establishing the kind of legally protected interest that justifies recovery in the parent-child relationship.
We are not presented here with the situation of many children suing for loss of parental society. If there is more than one child of an injured parent, their actions should be joined if at all possible. I do not believe, however, that the fact that more than one person is damaged by a defendant’s negligence should relieve that defendant of liability in this situation any more than if the defendant negligently ran into a school bus.9
*869The issue of increased litigation is also raised in the question of what type of injury to a parent will justify a child’s recovery of damages for loss of parental society. Although certain definitional problems may be encountered, it would appear that to have a measurable impact on the parent-child relationship so as to interfere with the companionship, society and education normally given, injury to the parent would have to be of a serious nature. We are not now presented with a close case and I will not attempt to draw the lines that would have been drawn over time, but note that, as the Supreme Court in Hinish v. Meier & Frank Co., 166 Or 482, 113 P2d 438 (1941), stated when it recognized an action for invasion of privacy:
"[W]hen a legal principle is pushed to an absurdity, the principle is not abandoned, but the absurdity avoided. The courts are competent, we think, to deal with the difficulties of the sort suggested, and case by case, through the traditional process of inclusion and exclusion, gradually to develop the fullness of the principle and its limitations.” 166 Or at 505.
The question of an increase in insurance rates because of the increased liability of negligent defendants is too speculative to be the basis for a decision as to whether the defendants should be held liable here. I believe it is unlikely that courts will be flooded with claims for loss of parental society, any more than they are flooded with claims for loss of spousal consortium.
IV
The fourth group of arguments submitted in support of the contention that a cause of action for loss of parental society should not be recognized involve what I *870have termed practical problems. These problems concern the damages claimed and are all somewhat related. Included are the questions of whether the injury to the parent-child relationship incurred is susceptible of recompense in money damages; the difficulty of assessing such damages; and the problem of potential double recovery in allowing damages to the child and the parent for the injury to the relationship between them.
The problem of whether the injuries suffered are compensable in money damages and the problem of assessing such damages would appear to present the same difficulties in this situation as they do in other situations in which monetary damages are sought for a non-monetary loss. As the Michigan court stated:
"We reject the majority’s argument in Borer [v. American Airlines, supra] that because a child’s loss is intangible, money damages are inadequate. This is more a comment on the inadequacy of legal remedies in general than a valid reason for denying recovery to a child. Money cannot purchase eyesight for one who is blinded nor can it truly compensate for intangibles such as pain and suffering or the loss of life. To say that a child cannot be fully compensated for his or her loss does not justify ignoring the loss altogether.” Berger v. Weber, 267 NW2d at 128-29.
As to the concern about the double recovery, this same problem exists in an action for spousal consortium, and has, apparently been confronted without significant difficulty. I believe that the problems that would arise from this situation are not insurmountable. I agree with the court in Berger v. Weber, supra, that the problems could be handled by joinder of the child’s cause of action with that of the parent, or by appropriate jury instructions.10
I decline to adopt the suggestion by defendants that juries inevitably consider the child’s loss in determining the damages to which the parent is entitled. It is true that we often expect the jury to make sophisticated distinctions and draw fine lines. Our jury system is based on the belief that juries are capable of making those distinctions *871and drawing those lines under proper instruction from the court. It is clear in this type of case that the child has suffered a real injury and that that injury is distinct from the injury suffered by the parent. I do note, however, that plaintiff here seeks damages for loss of support. As a matter of pecuniary loss, it appears that plaintiff’s mother may have recovered damages for the loss of her ability to earn an income and support her child. To the extent that she has recovered for economic loss to the family unit, I would hold that plaintiff here should not be allowed to recover for that loss as well. See Russell v. Salem Transportaion Co., supra.
In sum I do not find any of the suggested policy bases for disallowing this cause of action to be persuasive and would hold that plaintiff’s complaint states a cause of action.
Thornton, J. and Warden, J., join in this dissent.Escobedo v. Ward, 255 Or 85, 464 P2d 698 (1970), limited the damages recoverable under this statute to loss of the services of the child during minority. This limitation was, however, based on the wrongful death statute which at the time of the decision limited damages to "actual pecuniary loss.” The continuing validity of that limitation may now be in question since the wrongful death statute has been amended to allow recovery for "loss of the society, companionship and services of the decedent; * * *.” ORS 30.020.
See, e.g., Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S Ct 733, 21L Ed 2d 731 (1969); In re Gualt, 387 US 1, 87 S Ct 1428, 18 L Ed 2d 527 (1967); Gallegos v. Colorado, 370 US 49, 82 S Ct 1209, 8 L Ed 2d 325 (1962); In Re Winship, 397 US 358, 90 S Ct 1068, 25 L Ed 2d 368 (1970); Goss v. Lopez, 419 US 565, 95 S Ct 729, 42 L Ed 2d 725 (1975); Planned Parenthood of Missouri v. Danforth, 428 US 52, 96 S Ct 2831, 49 L Ed 2d 788 (1976); Carey v. Population Services International, 431 US 678, 97 S Ct 2010, 52 L Ed 2d 675 (1977).
Pursuant to ORS 30.020 the action must be brought by the decedent’s personal representative. The spouse and children of the decedent are, however, the "real parties in interest.” Christensen v. Epley, 287 Or 539, 545 601 P2d 1216 (1979).
See Burnette v. Wahl, supra at 709, n.5.
See, e.g., Borer v. American Airlines, Inc., 19 Cal 3d 441, 138 Cal Rptr 302, 563 P2d 858 (1977); Clark v. Suncoast Hospital, Inc., 338 So 2d 1117 (Fla Ct App 1976); Hankins v. Derby, 211 NW 2d 581 (Iowa 1973); General Electric Co. v. Bush, 88 Nev 360, 498 P2d 366 (1972); Russell v. Salem Transportation Co., 61 NJ 502, 295 A2d 862 (1972); Roth v. Bell, 24 Wash App 92, 600 P2d 602 (1979); and see Anno. 69 AIR 3d 528 and cases cited therein.
The case of Orrison v. Huang, Auglaize Co. 78-291 (Ohio, Court of Common Pleas, August 6, 1979) is currently on appeal to the Ohio Court of Appeals. The Court of Common Pleas apparently held that the denial of the cause of action would violate the constitutional rights of the child. An earlier Ohio Court of Appeals case had, however, held that children had no such cause of action. Gibson v. Johnston, 144 NE 2d 310 (Ohio Ct App 1956).
See Hill v. Sibley Memorial Hospital, 108 F Supp 739 (DDC 1952); Borer v. American Airlines, Inc., supra; Hankins v. Derby, supra; Hoffman v. Dautel, 189 Kan 165, 368 P2d 57, (1962); Russell V. Salem Transportation Co., supra; Duhan v. Milanowski, 75 Misc 2d 1078, 348 NYS 2d 696 (NY 1973); see also Ferriter v. Daniel O’Connell’s Sons, Inc., supra, 413 NE2d at 695 n 10.
Prosser has noted the reluctance of courts to allow this type of action and has commented:
*867"It 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. This is surely a genuine injury, and a serious one, * * Prosser, Law of Torts § 125, 896-97 (4th ed 1971).
See Love, Tortious Interference with the Parent-Child Relationship, 51 Ind LJ 590 (1976); 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 BUL Rev 722 (1976); Comment, The Child’s Claim for Loss of Consortium Damages, 73 San Diego L Rev 231 (1975). See also Ferriter v. Daniel O’Connell’s Sons, Inc., supra, 413 NE2d at 695 n 11.
On this point, the Michigan court cited with approval the following language from its Court of Appeals decision:
"[T]he rights of a new class of tort plaintiffs should be forthrightly judged on their own merits, rather than engaging in gloomy speculation as to where it will all end. (Citation omitted.) 82 Mich App 199, 210, 267 NW2d 124.” Berger v. Weber, supra, 303 NW2d at 426.
*869Justice Mosk in his dissenting opinion in Borer v. American Airlines, Inc., supra at 870, reacted to the "floodgates” argument as follows:
T agree that [a line must be drawn], 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 the victim’s spouse but also to a Gilbert and Sullivan parade of This sisters and his cousins, whom he reckons up by dozens,’ then dismiss that possibility with the unimpeachable observation that no one is suggesting that 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. * * * As we summarized in [another case], That the law might be urged to move too far * * * is an unacceptable excuse for not moving at all.’”
We are presented here with a situation in which plaintiffs mother has already recovered for her injuries. Appropriate jury instructions in the trial of plaintiffs action could be used, however, to prevent an award of damages which overlaps that received by plaintiffs mother.