(dissenting).
With this decision, the majority has in effect eliminated prospective only judicial decisions. From now on, when the court declares that a decision has prospective application, those wishing to take advantage of the new rule of law enunciated in the decision may request this court to examine their cases and to decide — on a case by case basis — whether the new rule of law should be applied retroactively to their case. Because the majority decision departs substantially from precedent, increases litigation unnecessarily and offers no guidance to the litigants, the circuit courts or the court of appeals, I dissent.1
*43In Theama v. City of Kenosha, 117 Wis. 2d 508, 344 N.W.2d 513 (1984), the court, selecting one of several alternative rules of prospectivity, limited a child’s cause of action for loss of a parent’s society to causes of action arising on or after a date certain, namely, March 8, 1984, except that the new rule was applicable to the parties raising the issue, namely, the Theama plaintiffs. No ambiguity here. A clearer statement of this type of prospectivity rule would be hard to find.
The cause of action in the case at bar arose before March 8,1984.
The circuit court took our Theama decision seriously. It dismissed the plaintiffs cause of action.
The court of appeals took our Theama decision seriously. It affirmed the dismissal of the plaintiffs’ cause of action.
This court, however, does not take its Theama decision seriously.2 It concludes that the plaintiffs in this *44case are not barred by the Theama prospectivity language, because “these plaintiffs are similarly situated to the Theama plaintiffs and warrant similar treatment.” At 2. In order to reach this result the majority must virtually ignore not only Theama but also Delvaux v. Vanden Langenberg, 130 Wis. 2d 464, 387 N.W.2d 751 (1986), decided less than six months ago.3
When the court announces a Theama-type rule of prospectivity, the court knows that there are many litigants, like the Theama plaintiffs, who have been pressing for a change in the law. The goal of our legal system is equal treatment for all those similarly situated. When *45the court adopts a Theama-type prospectivity rule, it is saying, however, that the first party who successfully challenges the existing rule of law in the highest state court should be regarded as having set himself or herself apart.4 By selecting the Theama-type prospectivity rule, the court has made a policy decision. It has concluded that the potential inequity to the litigants who have cases like Theama pending in the judicial system is offset by the potential inequity to those who have reasonably relied on the old rule. By selecting the Theama-type prospectivity rule the court has balanced the equities and declared that except for the parties involved in that case, the new decisional law should, as a matter of fairness, apply only as of the date set by the court.
Had the court intended to give the benefit of the new cause of action to litigants like the plaintiffs in this case who had cases pending in the judicial system when Theama was decided, the court could have easily accomplished this result. All the court had to do was select a different prospectivity rule.5 The court could have *46applied the new rule of law to causes of action arising after March 8, 1984, and to all those cases still pending in the judicial system, that is, to cases not yet “finalized.”6 As a result of this case, the court appears to be reshaping the rule of prospectivity it deliberately selected in Theama into the “not yet finalized” rule of prospectivity, using a case by case approach.
The majority grants a cause of action to the plaintiffs in this case but refuses to explain what will happen to other persons whose cause of action arose before March 8,1984. The majority expressly “choos[es] not to state any hard and fast rule as to how to determine when procedural histories are ‘sufficiently similar’ to warrant that an exception be made to a law applied prospectively.” The majority merely announces “the ‘exception’ question to be one best determined on a case by case basis.” At 14.
It is one thing for a court to set forth some of or all the criteria for determining what constitutes “sufficiently similar procedural histories” and to say that the criteria must be applied on a case by case basis. It is far different for the court to say, as it does in this case, that it will not set forth any criteria to guide a court in making its case by case determination of “sufficiently similar procedural histories.” By refusing to set forth any criteria, the court fails to fulfill its institutional function of giving guidance to the litigants, the circuit courts, and the court of appeals.
*47As a result of this case, this court’s limiting a decision to prospective application means that this court will decide on a case by case basis when to apply the decision retroactively. The technique of declaring a judicial decision to have prospective application only, designed to protect those who relied on an existing rule or set of rules, no longer provides such protection and now subjects persons to additional litigation just to determine whether the old or new rule of law applies. The decision today will produce unnecessary litigation that this court could prevent by articulating clear rules and adhering to them.
The majority justifies its holding in the name of equity,7 but the values of predictability and certainty in the law that the majority’s holding undermines are themselves important guarantors of equity. Equity is best achieved not by resorting to the unguided intuition of judges, but by establishing clear rules and applying them fairly to each case. While justice requires rules flexible enough to allow a decisionmaker to reach equitable results, it does at a minimum require rules. I dissent.
I am authorized to state that JUSTICE WILLIAM A. BABLITCH joins in this dissent.I agree with those parts of Justice Steinmetz’ dissent which criticize the majority opinion for engrafting an exception to the prospective application of the rule of law relating to the child’s cause of action.
“Taking Supreme Court opinions seriously emerged as a topic of discussion at a lunch I attended last year with several Supreme Court law clerks. Somehow we came round to a particular three-judge district court case which I confidently opined was ‘certain’ to be reversed on the basis of principles announced in prior opinions. The clerks were models of politeness and circumspection; never once did they even intimate that the judgment would (by divided vote) be affirmed. But shortly after I had announced my views of that case, one of the clerks began to prod me, asking whether I simply took the Court’s opinions ‘too seriously.’ I allowed that I had been around long enough to recognize that my notions of principled adjudication had all they could do to survive in the Supreme Court, given the force of the conflicting pressures on that body. Turning to a former student, I then engaged in what I thought to be an outstanding example of the Socratic dialogue;
“Q: When you were on the law review, did you take seriously what was said in Supreme Court opinions?
*44“A: Yes.
“Q: When you spent the summer clerking for the X firm, did you take seriously what was said in Supreme Court opinions?
“A: Yes.
“Q: When you clerked on the Court of Appeals, did you take seriously what was said in Supreme Court opinions?
“A: Yes.
“Q: When you go into practice next year, will you take seriously what is said in Supreme Court opinions?
“A: Yes.
“Q: Do you think it is a little odd that the only institution that does not take seriously what is said in Supreme Court opinions is the Supreme Court itself?
“A: (A smile).”
Monaghan, Taking Supreme Court Opinions Seriously, 39 Md. L. Rev. 1, 1-2 (1979) (note omitted).
The majority acknowledges that this case is not analogous to Harmann. Slip opinion at page 13. In Harmann v. Hadley, 128 Wis. 2d 371, 382 N.W.2d 673 (1986), we found a procedural history sufficiently similar only where the action of this court itself prevented a pending case from becoming the case in which the legal principle was announced. Harmann, 128 Wis. 2d at 382-83. The chance, but determinative, circumstance in Harmann was not that the plaintiffs had been “diligently pressing for the change in law,” but rather this court’s oversight.
“Ordinarily the party who successfully persuades the court to overrule an earlier decision receives the benefit of the decision. Although such a result may be harsh to the defendant it is fair to the party who has gone to considerable effort and expense pursuing the claim. A contrary result would discourage people from bringing claims. A totally prospective holding is ‘prophetic dictum.’... When a new rule of liability is ‘sunburst’ to apply to the parties in the case and to future conduct, the application of the rule may produce inequities. The party who happens to present the question when it is ripe for consideration is the chance beneficiary of our decision, to the exclusion of all others who may have been diligently pressing for the change in the law.” Harmann v. Hadley, 128 Wis. 2d 371, 381-82, 382 N.W. 2d 673 (1986).
For cases adopting a different type of prospectivity rule, see; e.g., Bielski v. Schulze, 16 Wis. 2d 1, 19, 114 N.W.2d 105 (1962); *46Wangen v. Ford Motor Co., 97 Wis. 2d 260, 300-301, 294 N.W.2d 260 (1980).
For cases adopting a “finalized” type of prospectivity rule, see, e.g., La Claw v. State, 41 Wis. 2d 177, 187, 163 N.W.2d 152 (1968); State v. Johnson, — Wis. 2d—,—,—N.W.2d (1986).
The majority ignores the inequity it perpetrates on those litigants whose cause of action arose before March 8, 1984 and who took our Theama decision seriously and did not appeal the dismissal of their cases.