HENDRIX v. GENERAL MOTORS CORPORATION (1983)

In this personal injury action we are asked to decide whether an unmarried cohabitant may state a cause of action for loss of consortium.   We conclude she may not, and we affirm.

FACTS

Plaintiffs Lebron Mitchell and Sharon Jean Hendrix joined in a complaint against General Motors Corporation, the manufacturer, and Doten Pontiac, the seller, for damages arising out of an automobile accident in which Mitchell was severely injured.   Mitchell stated three causes of action for products liability and negligence;  in the fourth cause of action, Hendrix alleged loss of consortium.   Hendrix alleged that she was “the prospective wife of plaintiff Lebron Mitchell and at all times herein mentioned did reside with Lebron Mitchell.”

Defendants demurred to the fourth cause of action on the ground that an action for loss of consortium cannot be maintained if the plaintiff was not married to the injured party.   The trial court sustained the demurrer without leave to amend and entered a judgment of dismissal against Hendrix.   She now appeals.

DISCUSSION

 The right of a married woman to recover for loss of consortium resulting from injuries to her husband was first recognized in Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669.   Subsequent cases, however, refused to expand the cause of action to the child of an injured parent (Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858), the parent of an injured child (Baxter v. Superior Court (1977) 19 Cal.3d 461, 138 Cal.Rptr. 315, 563 P.2d 871), or the fiancee of an injured man (Tong v. Jocson (1977) 76 Cal.App.3d 603, 142 Cal.Rptr. 726;  see also Etienne v. DKM Enterprises, Inc. (1982) 136 Cal.App.3d 487, 489, 186 Cal.Rptr. 321.)   But for a recent development in the case law, we would summarily affirm the judgment in this case based upon those precedents.

Recently, however, the Fourth District Court of Appeal concluded that an unmarried cohabitant may state a cause of action for loss of consortium upon a showing that the nonmarital relationship possesses the “characteristics” of a marriage.  (Butcher v. Superior Court (1983) 139 Cal.App.3d 58, 188 Cal.Rptr. 503.)   For the reasons discussed below, we decline to follow that case, and we adhere to the line of authority which confines recovery for loss of consortium to an injury which occurs within a legal marriage.

I

In establishing the right of a spouse to recover for loss of consortium, the Supreme Court emphasized the foreseeability of the relationship:  “one who negligently causes a severely disabling injury to an adult may reasonably expect that the injured person is married and that his or her spouse will be adversely affected by that injury.   In our society the likelihood that an injured adult will be a married man or woman is substantial․  And the probability that the spouse of a severely disabled person will suffer a personal loss by reason of that injury is equally substantial.”  (Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d at p. 400, 115 Cal.Rptr. 765, 525 P.2d 669.)

Later in Borer v. American Airlines, Inc., supra, 19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858, the Supreme Court narrowed the wide sweep of that language and cautioned that Rodriguez should not be read so broadly as to permit a cause of action for loss of consortium whenever there is a “foreseeable injury to a legally recognized relationship ․”  (P. 446, 138 Cal.Rptr. 302, 563 P.2d 858.)  “Judicial recognition of a cause of action for loss of consortium, we believe, must be narrowly circumscribed.”  (P. 444, 138 Cal.Rptr. 302, 563 P.2d 858.)  “[S]ocial policy must at some point intervene to delimit liability.”  (P. 446, 138 Cal.Rptr. 302, 563 P.2d 858.)  “[T]he courts must locate the line between liability and nonliability at some point, a decision which is essentially political.”  (Pp. 446–447, 138 Cal.Rptr. 302, 563 P.2d 858, quoting from Suter v. Leonard (1975) 45 Cal.App.3d 744, 746, 120 Cal.Rptr. 110.)

Absent legislative authority, we think the line must be drawn to exclude a nonmarital cohabitant.   The Butcher court rejected the notion that the public policy in favor of marriage should preclude recovery by an unmarried plaintiff.  (Butcher v. Superior Court, supra, 139 Cal.App.3d at pp. 69–70, 188 Cal.Rptr. 503.)   We disagree, and find strong policy reasons for confining recovery to a legal spouse.

 First, we note that at common law a party must have been legally married to the injured person at the time of the injury to assert a claim for loss of consortium.  (Prosser, Law of Torts, (4th ed. 1971) § 124, p. 874.)   Sound reasons underlie this rule.   The cause of action for loss of consortium presupposes that upon entry into a marriage a party is entitled to expect not only financial support or services but also comfort, companionship, sexual relations, and more.   An injury to one spouse thus interferes with the other spouse's enjoyment of these benefits.  (See generally Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d at pp. 404–406, 115 Cal.Rptr. 765, 525 P.2d 669.)   But until marriage, neither party has a legal right to expect any such benefits from the other.   Consequently, without marriage, an injury to one of the cohabitants does not interfere with a legally cognizable right of the other.

In California, one cannot sue for breach of a promise to marry.  (Civ.Code, § 43.5.)   It would be anomalous to permit a person to recover for the loss of consortium yet deny that same person recovery for the loss of those same marital benefits upon the failure to carry out the promise of marriage.   (Tremblay v. Carter (Fla.App.1980) 390 So.2d 816;  Sawyer v. Bailey (Me.1980) 413 A.2d 165.)

Furthermore, despite what appeared some years ago to be a changing social trend toward cohabitation without marriage (Comment, Consortium Rights of the Unmarried:  Time for a Reappraisal (1981) 15 Family L.Q. 223, 224;  Comment, In re Cary:  A Judicial Recognition of Illicit Cohabitation (1974) 25 Hastings L.J. 1226;  see Marvin v. Marvin (1976) 18 Cal.3d 660, 665, 134 Cal.Rptr. 815, 557 P.2d 106), marriage continues to be the foundation of this nation's family life.  (See Marvin v. Marvin, supra, 18 Cal.3d at p. 684, 134 Cal.Rptr. 815, 557 P.2d 106.)

We perceive the policy of this state favoring marriage to be based upon the salutary notion that marriage is the basic unit of social order;  a policy rooted not only in community mores, but also in the need to define the familial rights and responsibilities of society's members.   This policy has been legislatively reflected in the statutes governing the solemnization of marriage (Civ.Code., § 4100–4309), in the rule prohibiting common law marriages (Civ.Code., § 4100), and in the statutes defining the rights and responsibilities of husbands and wives toward each other and their children (Civ.Code., §§ 196–239, 5100–5138).   And it has been repeatedly reaffirmed by judicial decisions.

In Marvin v. Marvin, supra, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106, the Supreme Court emphasized that “the structure of society itself largely depends upon the institution of marriage, and nothing we have said in this opinion should be taken to derogate from that institution.”  (P. 684, 134 Cal.Rptr. 815, 557 P.2d 106.)   Recently, in Norman v. Unemployment Ins. Appeals Bd. (1983) 34 Cal.3d 1, 192 Cal.Rptr. 134, 663 P.2d 904, the Supreme Court had the opportunity to reexamine the policy supporting the marriage relation and stated:  “We reaffirm our recognition of a strong public policy favoring marriage.  [Citation.]  No similar policy favors the maintenance of nonmarital relationships.”  (P. 9, 192 Cal.Rptr. 134, 663 P.2d 904.)   And in deferring to the Legislature the role of establishing a change in the public policy of this state, the court said:  “In the absence of legislation which grants to members of a nonmarital realtionship the same benefits as those granted to spouses, no basis exists in this context for extending to nonmarital relations the preferential status afforded to marital relations.”  (Ibid.)

The pedestal upon which marriage is placed was well described in Nieto v. City of Los Angeles (1982) 138 Cal.App.3d 464, 470–471, 188 Cal.Rptr. 31:  “Spouses receive special consideration from the state, for marriage is a civil contract ‘of so solemn and binding a nature ․ that the consent of the parties alone will not constitute marriage ․;  but one to which the consent of the state is also required.’  (Mott v. Mott (1889) 82 Cal. 413, 416 [22 P. 1140, 1142].)   Marriage is accorded this degree of dignity in recognition that ‘[t]he joining of the man and woman in marriage is at once the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime.’  (Marvin v. Marvin, supra, 18 Cal.3d 660, 684, 134 Cal.Rptr. 815, 557 P.2d 106.)   Consonant therewith, the state is most solicitous of the rights of spouses.  (See, e.g., (Civ.Code, § 5100 et seq.)   The state affords similar protection to certain putative relationships in recognition of the good faith in which the innocent party undertook to marry.  (Civ.Code, § 4452.)   Unmarried cohabitants receive no similar solicitous statutory protection, nor should they;  such would impede the state's substantial interest in promoting and protecting marriage.”

 This strong public policy would be thwarted if persons could gain marital legal rights without accepting the correlative marital legal responsibilities.  (Laws v. Griep (Iowa 1983) 332 N.W.2d 339.)   Were this court to extend to unmarried persons legal rights heretofore confined to married persons, we would overstep our authority and usurp the authority of the Legislature to set public policy.   Only the Legislature responsible to the electorate should have the power to make such a radical change in the fabric of society.  (Childers v. Shannon (1982) 183 N.J.Super. 591, 444 A.2d 1141.)   To the extent that the Butcher opinion advocates that the courts should effect a profound change in public policy because there may be more unmarried cohabitants today than ten years ago, we disagree;  we would refer that decision to the Legislature, where it properly belongs.

Contrary to popular misconception, Marvin v. Marvin, supra, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106, did not legitimize the cohabitation of unmarried persons, nor did it open Pandora's box by giving those cohabitants the same causes of action and other benefits as if they were married.   Marvin did nothing more than establish the right of unmarried cohabitants to enter into valid contractual obligations of support so long as sexual services did not constitute the sole consideration therefor.  (See also Norman v. Unemployment Ins. Appeals Bd., supra, 34 Cal.3d at p. 6, 192 Cal.Rptr. 134, 663 P.2d 904.)   Other cases have recognized the limitations of Marvin and have refused to find that a nonmarital relationship is the equivalent of a marriage.  (People v. Delph (1979) 94 Cal.App.3d 411, 156 Cal.Rptr. 422;  Harrod v. Pacific Southwest Airlines (1981) 118 Cal.App.3d 155, 173 Cal.Rptr. 68;  Garcia v. Douglas Aircraft Co. (1982) 133 Cal.App.3d 890, 184 Cal.Rptr. 390.)   Thus, there is nothing in Marvin which would indicate a result different from that which we reach here.

We also observe that partners who wish social and legal recognition of their relationship consciously elect to marry.¹  It can be argued that the failure of meretricious spouses to assume the responsibility of marital vows and the legal obligation resulting from a formal marriage ceremony evidences a lack of permanent commitment which would render compensation for loss of consortium too speculative to calculate.  (Vogel v. Pan American World Airways, Inc. (S.D.N.Y.1978) 450 F.Supp. 224, 226.)

Finally, marriage provides a legal touchstone by which the strength of a male-female relationship may be tested.  (Childers v. Shannon, supra, 444 A.2d 1141.)   The test articulated in Butcher requires the courts to decide whether a relationship is “stable and significant.”  (Butcher v. Superior Court, supra, 139 Cal.App.3d at p. 70, 188 Cal.Rptr. 503.)   That test strikes us as unworkable and one which places a difficult and unnecessary burden on the judicial branch.

Although married persons can prove their relationship with the injured spouse through documentary evidence establishing a marriage ceremony, meretricious spouses and fiances would have to rely on more subjective evidence obviously more difficult to evaluate.  (Cf. Vogel v. Pan American World Airways, Inc., supra, 450 F.Supp. 224, 226.)   What is a stable and significant relationship?   The Butcher court attempted to define some characteristics that may tend to show parallels between a “stable and significant” relationship and a marriage (Butcher v. Superior Court, supra, 139 Cal.App.3d 58, 188 Cal.Rptr. 503.), but all it did was to add more water to the quicksand.   Applying the Butcher rule, we find it hard to envision a case in which summary judgment could be granted, and the chances for settlement of litigation would sink even deeper.

Although the parties to this litigation have not raised as an issue the right to privacy or freedom of association (cf. Nieto v. City of Los Angeles, supra, 138 Cal.App.3d 464, 188 Cal.Rptr. 31;  Norman v. Unemployment Ins. Appeals Bd., supra, 34 Cal.3d at p. 9, 192 Cal.Rptr. 134, 663 P.2d 904), it does not take much imagination to envision invasions of privacy which may be required for the purpose of establishing some of the Butcher characteristics—e.g., exclusivity of sexual relations—and any lawyer or judge who has experienced domestic relations litigation can foresee the discovery and trial complications involving proof of “economic cooperation and entanglement.”   Even lawyers who are not ingenious would have a field day during discovery.

The Supreme Court has foreseen the problems associated with the difficulties of proof in nonmarital relationships and has wisely opted for objective, readily verifiable evidence.   In In re Cummings (1982) 30 Cal.3d 870, 180 Cal.Rptr. 826, 640 P.2d 1101, the court upheld prison regulations which limited overnight visitation privileges to members of an inmate's “immediate family” and which prohibited such privileges to an inmate's “common law” wife of many years, stating that “the prolonged personal and intimate contact between prisoners is limited to those persons with whom the prisoner has a readily provable, legally cognizable, traditional family relationship.”  (Id., at p. 873, 180 Cal.Rptr. 826, 640 P.2d 1101.)   The court “specifically noted the difficulty, in the absence of a recognized formal tie, of assessing the truth of an inmate's assertion regarding his family status.”  (Norman v. Unemployment Ins. Appeals Bd., supra, 34 Cal.3d at p. 8, 192 Cal.Rptr. 134, 663 P.2d 904.)

Similarly, in holding that persons in nonmarital relationships are not entitled to the same benefits extended to marital partners under the Unemployment Insurance Code, the court employed reasoning which is equally applicable here:  “Recognizing and favoring those with established marital and familial ties not only furthers the state's interest in promoting such relationships but assures a more readily verifiable method of proof․  As in Cummings, numerous problems of standards and difficulties of proof would arise if we imposed upon an administrative agency the function of deciding which relationships merited treatment equivalent to the treatment afforded those with formal marriages.   The inevitable questions such as the factors deemed relevant, the length of the relationship, the parties' eventual plans as to marriage, and the sincerity of their beliefs as to whether they should ever marry.   The potential for administrative intrusions into rights of privacy and association would be severe if agencies bore the burden of ferreting out the ‘true depth’ and intimacy of a relationship in order to determine whether the existence and nature of the relationship was the equivalent of marriage.”   (Norman v. Unemployment Ins. Appeals Bd., supra, 34 Cal.3d at p. 10, 192 Cal.Rptr. 134, 663 P.2d 904.)   We discern no difference whether those problems and difficulties are imposed on administrative agencies or on the courts;  the effect is the same.   And the intrusions into one's rights of privacy and association are the same whether imposed by an agency or by court order.

 The formal requirements for a marriage made compulsory by Civil Code sections 4100 and 4200, including licensing, solemnization, authentication and certification, relieve the courts of the task of determining which relations are sufficiently “meaningful” to entitle the participants to claim a loss of consortium.  (Childers v. Shannon, supra, 444 A.2d 1141.)   We think the courts ought to defer to that legislative test.

II

We also find the precedents relied upon by Butcher unpersuasive.   The Butcher court emphasized the dissenting opinion of Justice Poche in Drew v. Drake (1980) 110 Cal.App.3d 555, 168 Cal.Rptr. 65.   Yet the majority in Drew held that a housemate (a “de facto spouse”) was not a foreseeable plaintiff for purposes of recovery for negligent infliction of emotional distress:  “there was no family relationship and there was no allegation that [the defendants] knew or should have foreseen any other kind of relationship between appellant and the victim of the accident.”  (Id., at p. 558, 168 Cal.Rptr. 65.)

Moreover, our research has disclosed only two cases, other than Butcher, which permitted a cause of action for loss of consortium by a plaintiff who was not married at the time of the accident:  Bulloch v. United States (D.N.J.1980) 487 F.Supp. 1078 and Sutherland v. Auch Inter-Borough Transit Company (E.D.Pa.1973) 366 F.Supp. 127.   Both were federal district court cases in which those courts were purporting to predict how the state courts would rule.   Both have since been repudiated by state courts.²

No state court has ever allowed an unmarried plaintiff to state a claim for loss of consortium.  (Laws v. Griep, supra, 332 N.W.2d Iowa 339;  Leonardis v. Morton Chemical Co., supra, 184 N.J.Super. 10, 445 A.2d 45;  Childers v. Shannon, supra, 444 A.2d 1141;  Sawyer v. Bailey, supra, 413 A.2d 165;  Miller v. Davis (N.Y.Sup.1980) 107 Misc.2d 343, 433 N.Y.S.2d 974;  Sostock v. Reiss, supra, 92 Ill.App.3d 200, 47 Ill.Dec. 781, 415 N.E.2d 1094;  Tremblay v. Carter, supra, 390 So.2d 816;  Angelet v. Shivar (Ky.App.1980) 602 S.W.2d 185;  Rademacher v. Torbensen (1939) 257 A.D. 91, 13 N.Y.S.2d 124;  see Booth v. Baltimore & O.R. Co. (1915) 77 W.Va. 100, 87 S.E. 84;  see also Wagner v. International Harvester Co., supra, 455 F.Supp. 168;  Annot. (1981) 5 A.L.R. 4th 300.)  Butcher therefore stands alone against the unanimous opinion of our sister state courts.   Added to that array of state court decisions is Lieding v. Commercial Diving Center (1983) 143 Cal.App.3d 72, 191 Cal.Rptr. 559, recently decided by the Second District Court of Appeal, which held that there is no cause of action for loss of consortium if the injury occurred prior to marriage.

The resolution of the issues in this case does not depend upon an “older morality” (Drew v. Drake, supra, 110 Cal.App.3d at p. 559, 168 Cal.Rptr. 65 (dis.opn. of Poche, J.));   it is not our function in this opinion to either condone or condemn the cohabitation of unmarried persons of any sexual preference.   As explained above, we base our decision on our conception of the public policy of the state, as enunciated by the Legislature and as interpreted by our highest court.

In conclusion, we reject the reasoning of the Butcher decision.   We think the better rule is that found in Tong v. Jocson, supra, 76 Cal.App.3d 603, 142 Cal.Rptr. 726 and in Lieding v. Commercial Diving Center, supra, 143 Cal.App.3d 72, 191 Cal.Rptr. 559:  an action for loss of consortium cannot be maintained unless the plaintiff was married to the injured person at the time of the accident.

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   To accord legal rights to an unmarried plaintiff is to force upon him or her a status which was not asserted at the time of the injury.   The courts ought not to make such an intrusion into private lives.  (Childers v. Shannon, supra, 444 A.2d 1141.)

2.   Two subsequent New Jersey cases declined to follow Bulloch.   (Childers v. Shannon, supra, 444 A.2d 1141;  Leonardis v. Morton Chemical Co. (1982) 184 N.J.Super. 10, 445 A.2d 45.)   The Sutherland case has been soundly criticized because of its failure to follow earlier Pennsylvania state court decisions.  (Sostock v. Reiss (Ill.App.1980) 92 Ill.App.3d 200, 47 Ill.Dec. 781, 415 N.E.2d 1094;  Sawyer v. Bailey, supra, 413 A.2d 165;  see also Wagner v. International Harvester Co. (D.Minn.1978) 455 F.Supp. 168;  Childers v. Shannon, supra, 444 A.2d 1141.)

BREINER *, Justice, Pro Tem. FN* Assigned by the Chairperson of the Judicial Council.

NEWSOM, Acting P.J., and HOLMDAHL, J., concur.