NO. 92-121 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

LOIS Y. KEELE and FRANK S. KEELE, 

individually, and as next friends of 

their minor child, LISA KEELE, 

Plaintiffs and Appellants, 

-vsST. VINCENT HOSPITAL AND HEALTH CARE CENTER, 

and DR. JAMES R. HARRIS, M.D., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District. 

In and for the County of Yellowstone, 

The Honorable Russell K. Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For 

For 

For 

Decided: May 6, 1993 

Appellants: 

William P. Fitzgerald (argued for appellant): 

Lynaugh, Fitzgerald, Eiselein & Eakin, Billings, 

Montana 

Respondents: 

Richard F. Cebull (argued for respondent Dr. 

Harris) John J. Russell: Brown, Gerbase, Cebull, 

Fulton, Harman & Ross, Billings, Montana 

Robert C. Brown (argued for respondent St. Vincent 

Hospital): Poore, Roth & Robinson, Butte, Montana 

Amicus: 

W. William Leaphart (argued on behalf of Trial 

Lawyers Association); Leaphart Law Firm, Helena, 

Montana 

Randy J. Cox (filed brief on behalf of Montana 

Defense Trial Lawyers): Boone, Karlberg & Haddon, 

Missoula, Montana 

Submitted: February 4, 1993 
Justice Karla M. Gray delivered the Opinion of the Court. 

Appellant Lisa Keele appeals from an order of the Thirteenth 

Judicial District Court, Yellowstone County, dismissing her claim 

for loss of parental consortium. We reverse and remand. 

The sole issue on appeal is whether a minor child's cause of 

action for loss of parental consortium requires the parent to have 

suffered an injury rendering him or her a quadriplegic. 

Because this appeal is before us following the grant of a 

motion to dismiss under Rule 12(b)(6), M.R.Civ.P., the well-pleaded 

allegations in the complaint are considered true. Mogan v. City of 

Harlem (1987), 227 Mont. 435, 437, 739 P.2d 491, 493. Therefore, 

we distill the facts relevant to our discussion from the complaint. 

Lois Keele (Lois), accompanied by her husband, Frank Keele 

(Frank), was admitted to St. Vincent Hospital and Health Center 

(St. Vincent's) on December 15, 1985. She was 38 weeks pregnant 

and in active labor. The obstetrical ward nurses examined Lois and 

immediately determined that the fetus was in the "transverse lie 

position." This condition results in a high likelihood of a 

cesarean section delivery. Dr. James Harris, an obstetrician at 

St. Vincent's, began treating Lois according to established 

procedure. 

Anesthesiologists were available on an "on-call" basis only at 

St. Vincent's. Hospital procedure required the staff to allow the 

anesthesiologists thirty minutes to arrive at the operating room 

after the initial call. Dr. Harris did not call an 

2 
anesthesiologist when he became aware of the fetal position. 

Lois' water broke, and an immediate Code I cesarean section 

was required to preserve the health of the fetus. Fetal distress 

required immediate action, notwithstanding the fact that an 

anesthesiologist had not been called to prepare Lois for surgery. 

Dr. Harris administered a local anesthesia before surgical cutting 

began, but the abdominal surgery proceeded without a spinal block 

or general anesthesia. 

In November of 1988, Lois and Frank Keele filed a medical 

malpractice action against St. Vincent's: in April, 1989, they 

filed a separate action against Dr. James Harris. On September 27, 

1991, Lois and Frank amended their complaint, consolidating the 

cases against Dr. Harris and St. Vincent's and adding their minor 

daughter Lisa Keele, the child born during the traumatic delivery, 

as a plaintiff. The amended complaint alleged injury to all three 

plaintiffs due to the negligence of the defendants in failing to 

obtain timely anesthesia services before performing the cesarean 

section on Lois Keele. Lisa Keele claimed loss of parental 

consortium. 

In October, 1991, Dr. Harris and St. Vincent's moved to 

dismiss Lisa's claim for loss of parental consortium pursuant to 

Rule 12(b)(6), M.R.Civ.P. After briefing and oral argument, the 

District Court ordered entry of judgment against Lisa Keele. Lisa 

Keele appeals. 

Does a minor child's cause of action for loss of parental 

3 
consortium require the parent to have suffered an injury rendering 

him or her a quadriplegic? 

Appellant Lisa Keele (Lisa) bases her argument that she has a 

claim for loss of parental consortium on Pence v. Fox (1991), 248 

Mont. 521, 813 P.2d 429. In Pence, a case of first impression, we 

recognized a child's cause of action for loss of parental 

consortium against a tortfeasor who had rendered the father a 

quadriplegic. Pence, 813 P.2d at 433. In that case we held: 

[Mlinor children who have been deprived of these rights 

have a separate cause of action for loss of parental 

consortium when a parent is tortiously injured by a third 

party and rendered a quadriplegic. 

Pence, 813 P.2d at 433. 

Respondents Dr. Harris and St. Vincent's contend that the 

Pence decision must be strictly interpreted, and that this Court 

intended to set a reasonable, enforceable boundary for loss of 

consortium claims. They urge this Court to limit loss of parental 

consortium claims to cases in which the parent suffers a severe, 

permanent and disabling physical injury, similar to quadriplegia. 

Lisa argues that in Pence, this Court established a policy to 

protect, support and foster the parent-child relationship in 

Montana. She contends that this broad policy of enforcing the 

familial unit espoused in Pence covers the cause of action in this 

case, even though the specific holding in Pence was limited to 

cases involving quadriplegia. Lisa asserts that the respondents 

improperly focus on the nature of the injury to the parent: 

instead, the court should focus on the damage to the parent-child 

relationship caused by the tortfeasor. 

4 
The District Court correctly recognized the limited nature of 

our holding in Pence, and based its decision to dismiss Lisa's 

claim on the specific language therein. However, we have 

recognized repeatedly our authority and responsibility for the 

continued development of the common law. See Pence, 813 P.2d at 

431. We see no rational basis for limiting the cause of action for 

loss of parental consortium to children whose parents are rendered 

quadriplegic; such a result arbitrarily would exclude children 

whose parents suffered, for example, a severe brain injury 

resulting in a lifelong coma which totally eliminated parental 

consortium. Therefore, further development of the cause of action 

for loss of parental consortium in Montana is appropriate. 

We noted in Pence the growing trend to recognize loss of 

parental consortium actions. At the time of that decision, at 

least ten states had recognized thee claim: Arizona, Alaska, 

Vermont, Washington, Wisconsin, Iowa, Michigan, Massachusetts, 

Oklahoma and Texas. Pence, 813 P.2d at 431. Additional 

jurisdictions now recognizing the cause of action include West 

Virginia and Wyoming. See Belcher v. Goins (W.Va. 1990), 400 

S.E.2d 830 and Nulle v. Gillette-Campbell County Joint Powers Fire 

Board (Wyo. 1990), 797 P.2d 1171. 

We have surveyed the approaches employed in these 

jurisdictions and discovered a wide range of standards. For 

example, in Michigan, a child can recover for loss of the parent's 

society and companionship when the parent is tortiously injured. 

Berger v. Weber (Mich. 1981), 303 N.W.2d 424, 427. In Bercfer, the 

5 
Michigan Supreme Court expressly refused to limit the cause of 

action to instances of "severely" injured parents of a minor child. 

Beraer, 303 N.W.2d at 427. At the other end of the spectrum, the 

Vermont Supreme Court has limited the cause of action to cases in 

which the parent has been rendered permanently comatose. Hay v. 

Medical Center Hosp. of Vermont (Vt. 1985), 496 A.2d 939, 946. 

We also have revisited the important public policies relating 

to, and competing interests inherent in, this cause of action, as 

expressed by our sister jurisdictions and our opinion in Pence. In 

crafting the standard to be applied to loss of parental consortium 

claims in Montana, we borrow heavily from the Arizona Supreme 

Court's rationale in Villareal v. State Dept. of Transp. (Ariz. 

1989), 774 P.2d 213. We note that the facts of Villareal do not 

necessarily reflect the facts before us nor the facts required for 

a cause of action for loss of parental consortium. Instead, we 

rely on the legal analysis of the Arizona Supreme Court to guide 

our definition of the cause of action in Montana. 

In Montana, the elements necessary for a minor child to 

establish a claim for loss of parental consortium are: 

1) a third party tortiously causes the parent to suffer 

a serious, permanent and disabling mental or physical 

injury compensable under Montana law; and 

2) the parent's ultimate condition of mental or physical 

impairment must be so overwhelming and severe that it 

causes the parent-child relationship to be destroyed or 

nearly destroyed. 

See Villareal, 774 P.2d at 219. 

The first element describes the extent of injury to the parent 

which must be present to form the basis for a loss of parental 

6 
consortium claim, as well as the source of that injury. 

Thereafter, the element contains a limitation: the described 

injury to the parent must be "compensable under Montana law." The 

limitation reflects the derivative nature of the minor child's 

claim for loss of parental consortium. That claim is wholly 

derivative of the parent's claim against the tortfeasor for 

personal injuries: if the tortfeasor is not subject to liability to 

the parent under tort principles, the child cannot sustain a cause 

of action against the tortfeasor for loss of parental consortium. 

Villareal, 774 P.2d at 220. 

For example, recovery for severe mental injury absent physical 

manifestations is limited to a few specific instances in Montana. 

See discussion in Day v. Montana Power Co. (1990), 242 Mont. 195, 

199, 789 P.2d 1224, 1226-7: Versland v. Caron Transport (1983), 206 

Mont. 313, 671 P.2d 583; and Johnson v. Supersave Markets, Inc. 

(1984) I 211 Mont. 465, 686 P.2d 209. Consequently, if the parent 

could not recover from the tortfeasor for his or her purely mental 

or emotional injury absent a physical component, the child cannot 

bring an action for loss of parental consortium resulting from that 

injury to the parent. 

We find support for this conclusion in Priest v. Taylor 

(1987), 227 Mont 370, 740 P.2d 648. In Priest, we discussed the 

derivative nature of a spouse's claim for loss of consortium. We 

stated that although the cause of action is separate and distinct, 

the loss of spousal consortium claim is completely derivative of 

the injured spouse's claim. Priest, 740 P.2d at 653. In Pence, we 

7 
relied heavily on our recognition of spousal consortium to support 

our decision to recognize the cause of action for a child's loss of 

parental consortium. Pence, 813 P.2d at 431-2. As such, we 

conclude that this limitation on a minor child's claim for loss of 

parental consortium is both necessary and grounded in Montana case 

law. 

With regard to the second element of the claim for loss of 

parental consortium, we emphasize that the destruction or near 

destruction of the parent-child relationship as a result of the 

parent's impairment is a necessary element in establishing the 

cause of action itself, not merely a factor in computing damages. 

See Belcher, 400 S.E.2d at 841, and Villareal, 774 P.2d at 219-20. 

Returning to the case before us, we express no opinion as to 

whether Lisa can appropriately allege and sustain a claim for loss 

of parental consortium under the standard set forth in this 

opinion. We conclude, however, that the District Court erred in 

dismissing her complaint for failure to state a claim upon which 

relief can be granted. 

Reversed and remanded for further proceedings consistent with 

this opinion. 

We concur: 
Justices 

3 
Justice Terry N. Trieweiler specially concurring. 

I concur with the result of the majority opinion, but disagree 

with the standard established by the majority for determining 

whether a child has a cause of action for loss of his or her 

parent's consortium. 

The nature of the loss for which a consortium action is 

brought is damage to the relationship between the parent and the 

child. When we recognized the right of a child to make a claim for 

loss of a parent's consortium, we pointed out that: 

[T]he rights of the child to support, aid, protection, 

affection and society of the parent derive from both 

statute and case law. 55 40-6-211, 40-6-214, 

41-3-102(3)(c)[, MCA]; IiZrefig (1988), 231Mont. 78, 751 

P.2d 171. In addition, the child has the right to 

parental discipline, guidance and training. . . . 

. . . . 

We conclude that under the Montana case law and 

statutes as developed, minor children are entitled to the 

support, aid, protection, affection, society, discipline, 

guidance and training of their parent. This policy 

underlies the "best interests of the child test" in 

custody determinations under § 40-4-212, MCA, and the 

right of the child to seek damages under Montana's 

Wrongful Death Statute. See §§ 27-1-512 and 513, MCA, 

and Ewalt[v.Scott (1983)], 206 Mont. 503, 675 P.2d 77. 

Pencev.Fox (1991), 248 Mont. 521, 526-27, 813 P.2d 429, 432-33. 

If the nature of the loss for which a child is to be 

compensated is damage to the relationship between the child and his 

or her parent, it makes no sense to me that the cause of action is 

arbitrarily limited by the nature of the parent's injury. The 

standard which gives rise to the cause of action should logically 

10 
be based on the nature and extent of the damage to the parent-child 

relationship. 

It is interesting that in Montana there is no similar 

limitation on the right of one spouse to recover lost consortium 

when it results from physical or mental injury to another spouse. 

SeeDufiv.Lipsman-Fulkerson&Co. (D. Mont. 1961), 200 F. Supp. 71; Dutton 

v. Hightower and Lubrecht Construction Co. (D. Mont. 1963), 214 F. Supp. 298; 

Hall v. United States (D. Mont. 1967), 266 F. Supp. 671; Bain v. Gleason 

(l-61, 223 Mont. 442, 726 P.2d 1153. And yet, there should be no 

dispute that disruption of the parent-child relationship will in 

most cases have much greater consequences than damage to the 

relationship between two adults. I agree with the following 

observation from The Child’s Right to Sue for Loss of a Parent’s Love, Care and 

Companionship Caused by Tortiorrs Injury to the Parent, 5 6 B . u . L. Rev. 7 2 2, 74 2 

(19761, and quoted by the Iowa Supreme Court in Weitlv.Moes (Iowa 

1981), 311 N.W.2d 259, 269: 

Since the child in his formative years requires emotional 

nurture to develop properly, the loss of love, care and 

companionship is likely to have a more severe effect on 

him than on an adult: and society has a strong interest 

in seeing that the child's emotional development proceeds 

along healthy lines. Moreover, an adult is in a better 

position than a child to adjust to the loss of a family 

member's love, care and companionship through his own 

resources. He is capable of developing new relationships 

in the hope of replacing some of the emotional warmth of 

which he has been deprived. A child, however, is 

relatively powerless to initiate new relationships that 

might mitigate the effect of his deprivation. Legal 

redress may be the child's only means of mitigating the 

effect of his loss. 

11 
Because the cause of action recognized by the majority is for 

the purpose of compensating a child for damage to the child's 

relationship with his or her parent, and because there is no 

comparable limitation on a cause of action brought by an adult for 

loss of a spouse's consortium, I would not arbitrarily limit a 

child's claim for loss of parental consortium based on the nature 

of the parent's physical or mental injury. I would follow the test 

established by the Iowa Supreme Court when it held that in that 

state "a minor has an independent cause of action for loss of the 

society and companionship of a parent who is tortiously injured by 

a third party so as to cause a significant disruption or diminution 

of the parent-child relationship." weid, 311 N.W.2d at 270. 

Therefore, I concur in the result of the majority opinion, but 

for reasons other than those set forth in that opinion. 

/ 

3 stice 

Justice William E. Bunt, Sr., joins in theforegoing special 

concurrence. 

12 
May 7, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

William P. Fitzgerald 

LYNBAUGH, FITZGERALD, EISELEIN & EAKIN 

P.O. Box 1729 

Billings, MT 59103 

John J. Russell & Richard F. Cebull 

ANDERSON, BROWN LAW FIRM 

P.O. Box 849 

Billings, MT 59103 

Robert C. Brown 

POORE, ROTH & ROBINSON 

1341 Harrison Avenue 

Butte, MT 59701 

W. William Leaphart 

Leaphart Law Firm 

One North Last Chance Gulch 

Helena, MT 59601 

Randy J. Cox 

Boone, Karlberg & Hadden 

P.O. Box 9199 

Missoula. MT 59807-9199 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA