California Appeals Court Declines to Recognize Child’s Cause of Action for Loss of Parental Consortium

In October 2013, a victim’s car collided with an off-duty ambulance. The victim suffered a traumatic brain injury, along with other injuries. The victim’s infant daughter brought suit for loss of parental consortium against a number of defendants. The defendants demurred to her claim on the ground that a loss of consortium claim may not be maintained by a minor for injuries to a parent, pursuant to California precedent. The trial court sustained the demurrers without leave to amend and dismissed the complaint. The child appealed. Reasoning that it was bound by the principles of stare decisis, the California Appeals Court for the Second Appellate District affirmed the lower court’s decision.

ambulance

The appeal concerned a single question:  whether California should reconsider a long-standing precedent established by the California Supreme Court in 1977 in Borer v. American Airlines. In Borer, the state high court declined to recognize a child’s cause of action for the loss of parental consortium. Then, a mother was injured by a falling light fixture in an airline terminal. Her children brought suit against American Airlines for the loss of her services, affection, guidance, and companionship. The lower court sustained the airline’s demurrer to the complaint, and the appeals court affirmed.

The California Supreme Court reasoned that a cause of action for loss of consortium must be narrowly defined. Loss of consortium is an intangible injury for which money damages do not provide suitable compensation. Recognizing a right to recover for such losses in cases like this, it reasoned, could substantially increase the number of claims, the expense of resolving such claims, and the ultimate liability of the defendants. Essentially, recognizing such a cause of action would open the floodgates.

Moreover, the California Supreme Court reasoned that the payment of damages to persons for the loss of consortium of a parent or child neither adequately compensates for the loss nor justifies the burden in attempting to do so. The court perceived significant differences between the marital relationship and the parent-child relationship that supported limiting a cause of action for loss of consortium to marriages. The state high court concluded that taking into account considerations such as the inadequacy of monetary compensation to alleviate the tragedy, the difficulty of measuring damages, and the danger of imposing extended and disproportionate liability, it would not recognize a non-statutory cause of action for the loss of parental consortium.

In her appellate briefing, the daughter recognized stare decisis precluded the appeals court from departing from the California Supreme Court’s holding in Borer. As a result, the appellant fully recognized that the court was required to affirm. Nevertheless, she presented an extensive argument for overturning, including that at least 22 states disagreed with its holding and allowed parent-child loss of consortium claims. When out-of-state authority is at odds with California law, however, it lacks even persuasive value in California. As acknowledged by the daughter, the appeals court was bound to follow the decision of the California Supreme Court.

Relying on Borer, the trial court sustained demurrers to the loss of parental consortium claim without leave to amend. The appeals court likewise held it was bound to follow the decision under the doctrine of stare decisis. Accordingly, the court affirmed the lower court’s judgment.

The car accident lawyers at Neumann Law Group represent victims throughout the Los Angeles area. Call us at (213) 227-0001 for a free consultation.

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