dissenting, Issue IV.
I dissent from the conclusion reached by the Majority on Issue IV which deals with a child’s right of action for loss of parental consortium. The Majority’s conclusion is that “it is wiser to leave it to the legislative branch with its greater ability to study and circumscribe the cause.” Majority Opinion, Issue IV, p. 1. This pass the buck to the legislative branch approach not only ignores the obligation of the judicial branch to implement legislative intent and purpose, but is an insufferable result.
With the overwhelming amount of legislation being enacted, it is not surprising that every possible application of the statute has not been thought about and included in the final bill. In several pages of a piece of legislation, it is impossible to conceive of the tens of thousands of fact situations that may occur and involve the legislation under consideration.
Causes of action for loss of consortium have historically been allowed or denied by common law. Troue v. Marker (1969), 253 Ind. 284, 252 N.E.2d 800, 804 and the cases cited therein. As I pointed out in Dearborn Fabricating & Eng. v. Wickham (1988), Ind.App., 532 N.E.2d 16: “‘The common law of today is not a frozen mold of ancient ideas, but such law in [sic] active and dynamic and thus changes with the times and growth of society to meet its needs.’ Perkins v. State (1969), 252 Ind. 549, 554, 251 N.E.2d 30, 33.” Dearborn, supra, at 17-18.
Finally, allowing a child to have a claim for loss of parental consortium when the parent is negligently injured is consistent with the intent and purpose of IC 35-1-1-2 which allows a child to recover for loss of parental consortium when the parent dies from negligently inflicted injuries. As I pointed out in Dearborn, supra:
How anomalous it is to deny that relief to these minor children when a parent may remain severely disabled or even comatose! A child’s loss is similar in both situations. Whenever the injury to the parent is relatively minor, the fact-finder can determine what, if any, injury resulted to the child. As long as the injury is severe enough to deprive the child of his parent’s companionship and guidance, the parent should not have to die for the child to gain relief. Durepo *1129v. Fishman (1987), Me., 533 A.2d 264, 268-69.
To work in full cooperation with the legislature by implementing the intent and purpose of the multitude of bills enacted for the public good, Dearborn Fabricating & Eng. v. Wickham (1988), Ind.App., 532 N.E.2d 16 should have been followed.