BAXTER v. SHELDON (1976)

We are asked to determine in this mandate proceeding whether a cause of action can be asserted by parents for the loss of the support, comfort, protection, society and pleasure of their minor child.

Respondent Andre A. Baxter, a minor, by his guardian ad litem, Margaret Baxter, Margaret Baxter, individually, and Theodore Baxter, individually, filed an action in the superior court against C. Hunter Sheldon, M.D., et al. The First cause of action of the first amended complaint alleged injury to and sought damages on behalf of Andre A. Baxter, a minor, by virtue of medical malpractice; the second sought damages on behalf of Andre's parents, Margaret and Theodore, for expenses they incurred as a result of the alleged malpractice; and the third and fourth sought damages on behalf of Margaret and Theodore, respectively, for their loss of Andre's ‘support, comfort, protection, society and pleasure.’

Initially defendant Huntington Memorial Hospital, Edwin P. Hoffman, M.D., and Francis M. Paul, M.D., demurred to the third and fourth causes of action, on the ground that no causes of action were stated therein. The demurrer was overruled. This court peremptorily denied a petition for a writ of mandate filed by the latter defendants in 2d Civil 47144. The Supreme Court denied a petition for hearing. (Cf. Babb v. Superior Court (1971) 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 479 P.2d 370.)

Subsequently, plaintiffs filed a second amended complaint which was identical to the first amended complaint in all respects material to the present proceeding. Defendants John T. Garner, M.D., C. Hunter Sheldon, M.D., and Ernest B. Porter, M.D., demurred to the third and fourth causes of action on the grounds that no causes of action were stated therein. The demurrers were sustained without leave to amend by a judge other than the one who had denied the earlier demurrers. Petitioners, Margaret and Theodore Baxter, then filed this petition for writ of mandate. We issued our alternative writ.¹

Prior to Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669, no cause of action existed in this state on behalf of any party for loss of consortium, including loss of the support, comfort, protection, society and pleasure of another person. Rodriguez established a cause of action on behalf of one spouse for the loss of the other spouse's consortium.² The Supreme Court in Rodriguez rejected an argument that its ruling would lead to establishing a somewhat similar cause of action with regard to other intrafamily relationships. Diaz v. Eli Lilly And Company (1973) 302 N.E.2d 555, 563, was quoted as follows:

‘Nor does it follow that if the husband-wife relationship is protected as here envisaged, identical protection must be afforded by analogy to other relationships from that of parent-child in a lengthy regress to that of master-servant; courts will rather proceed from case to case with discerning caution.’ (Footnote omitted.)

Following Rodriguez, the subject of loss of such items of consortium as society and companionship within the parent-child relationship was first discussed in Hair v. County of Monterey (1975) 45 Cal.App.3d 538, at 545–546, 119 Cal.Rptr. 639, at 644, as follows:

‘* * * In this instance, however, we observe that no reasonable distinction can be drawn between the right of parents, in appropriate circumstances, to seek recovery for loss of comfort, society and companionship of an injured and totally helpless child and the right of a spouse, in similar circumstances, to seek recovery for loss of consortium as authorized by Rodriguez.

‘Applying the reasoning of Rodriguez, it appears clear that the law also favors the parent-child relationship sufficiently to permit a parent to recover for lost comfort, society and companionship and that this policy implies that such damages should be allowed in cases such as the one before this court.’

However, the quoted discussion in Hair, favorable to the proposition that the cause of action may exist, was plainly dictum. (Cf. Garza v. Kantor (1976) 54 Cal.App.3d 1025, 1028, n. 3, 127 Cal.Rptr. 164.)

Eight days after the opinion in Hair, this court in Suter v. Leonard (1975) 45 Cal.App.3d 744, 120 Cal.Rptr. 110, held that no cause of action existed on behalf of a child for loss of his mother's society, care, protection, support and affection. We stated:

‘Plaintiff's claim, viewed in the abstract and divorced from its surroundings, carries both logical and sympathetic appeal. In Rodriguez v. Bethlehem Steel Corp. * * * the Supreme Court recognized a right of action in a married person for loss of consortium caused by a third person's negligent injury to the married person's spouse. Certain aspects of spousal relationship are similar to those of the parent-child relationship, and there can be little question of the reality of the loss suffered by a child deprived of the society and care of its parent.

‘Nevertheless, our decision must take into account considerations in addition to logical symmetry and sympathetic appeal. As pointed out by Judge Breitel, every injury has ramifying consequences and losses, like the rippling of the waters, without end. Ideally, each loss should be paid in full in undepreciated currency. Practically, not every loss can be made compensable in money damages, and legal causation must terminate somewhere. In delineating the extent of a tortfeasor's responsibility for damages under the general rule of tort liability (Civ.Code, § 1714), the courts must locate the line between liability and non-liability at some point, a decision which is essentially political. [Citation.] In dealing with the type of loss at bench, courts in other jurisdictions have uniformly placed the loss on the non-actionable side of the line. As Prosser states, ‘The interest of the child in proper parental care * * * has run into a stone wall where there is merely negligent injury to the parent.’ (Law of Torts (4th ed.) p. 896.) The decisions all reject liability [citation], applying Alaskan law; [citations]. In denying a child's cause of action for negligent injury to the parent, the cases cite a variety of concerns: absence of an enforceable claim by the child to the parent's services; indirectness and derivative nature of the injury; uncertainty and remoteness of damages; possibility of overlap with the parent's recovery; multiplication of tort claimants; multiplication of tort litigation; abrogation of the period of limitation; splitting of the basic cause of action; and potential increase in insurance costs. The Supreme Court gave implied support to these concerns in Rodriguez v. Bethlehem Steel Corp., supra, * * *, when it quoted from decisions in other jurisdictions that distinguish spousal from parent-child relationships. In the absence of a specific ruling to the contrary from our Supreme Court, we follow the unanimous rulings of other jurisdictions and classify plaintiff's loss as non-actionable.' (Footnotes omitted.) (Supra at 746–747, 120 Cal.Rptr. at 111–112.)

Our decision in Suter was followed in Garza v. Kantor, supra, 54 Cal.App.3d 1025, 127 Cal.Rptr. 164. The opinion in Garza stated:

‘The primary issue presented by this appeal is whether these minor children have a cause of action in this state for the loss of consortium resulting from allegedly negligent injury to their father. We believe not and we thereby follow the fairly recent holding by another local division of this statewide court in Suter v. Leonard * * * that a minor daughter may not recover for loss of consortium stemming from the allegedly negligent injury to her mother who had custody of the girl. We also follow the unanimous conclusion in 14 other jurisdictions that no such cause of action exists. (See, in addition to the cases cited in Suter, supra, [45 Cal.App.3d] at p. 747, 120 Cal.Rptr. 110; [citations.] Finally, we believe that our Supreme Court indicated rather plainly fairly recently in Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382, 408 [115 Cal.Rptr. 765, 525 P.2d 669] in recognizing in this state a cause of action in a spouse for loss of consortium caused by a negligent or intentional injury to the other spouse by a third person, that such recognition did not presage a like recognition of such a cause of action based upon the parent-child relationship.

‘These relationships are not the same. The one rests in contract. (Civ.Code, § 5100.) The other does not. The one endures for the length of the marriage; the other, generally speaking, is a continuing close familial relationship only during the minority of the child at most. Love, affection, companionship and services between adults differ in kind and not simply in degree from the same matters when they exist within the relationship of parent and child.’ (Footnotes omitted.) Supra at 1027–1028, 127 Cal.Rptr. at 165.)

The present case seeks to establish a cause of action on behalf of parents, whereas the Suter and Garza cases denied the converse cause of action to the child. We have considered the supplemental authorities filed by petitioners all of which are from other jurisdictions and some of which state well-reasoned grounds which differ with the views expressed in Suter and in Garza. We are satisfied that we have correctly followed the law of this state in accordance with the guidelines set out in Rodriguez. There can be little doubt that children especially in a normal family relationship are a source of boundless love, comfort, companionship, and satisfaction to their parents, to many their primary interest in life itself and also to many parents a source of support. We make no attempt to evaluate the respective damage to each which accrues to either when one party to the relationship is injured or lost but we feel that for the reasons summarized in Suter and Garza and because of the caution to be exercised in extending the remedy for loss of consortium expressed in the seminal case of Rodriguez that the law of this state is such that neither parent nor child has a cause of action for loss of consortium because of wrongful injury of the other. We conclude that petitioners do not state a cause of action in either the third or fourth causes of action of their second amended complaint.

The parties to the present petition include as real parties in interest only three of the seven defendants in the case pending in respondent superior court. Respondent court's order sustaining real parties' demurrer, which is the subject of the present petition, applies only to those three defendants. The disposition of this petition directly affects those three defendants who are real parties in interest herein. Remaining defendants are free to seek such relief in respondent court as is consistent with the views expressed in this opinion.

The alternative writ of mandate is discharged. The petition is denied.

FOOTNOTES

1.  A seventh defendant, Norman Johnson, M.D., has apparently not demurred to the original or the amended complaint filed by petitioners.

2.  The opinion in Rodriguez indicated that the term ‘consortium’ embraced elements such as love, companionship, society, sexual relations and solace. (Rodriguez at pp. 404–405, 115 Cal.Rptr. 765, 525 P.2d 669.) We note that, aside from sexual relations, the latter elements are almost identical to those alleged in petitioners' complaint.

ROTH, Presiding Justice.

COMPTON and BEACH, JJ., concur.