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SCAP-22-0000699

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

________________________________________________________________

HELG Administrative Services, LLC, as Conservator for Curtis 

Pomaikai Panoke, a.k.a. Curtis P. Panoke, a.k.a. Curtis Panoke, 

an Incapacitated Person, and Katarine Hokulani Panoke Gec, 

Plaintiffs-Appellees,

vs.

Department of Health, State of Hawaiʻi; Mark A. Fridovich, Ph.D; 

William P. Sheehan, M.D.; Chiyome L. Fukino, M.D.;

Linda Rosen, M.D.; Virginia Pressler, M.D.;

Defendants-Appellees,

and

GEO Care, Inc., GEO Care, LLC, Correct Care, LLC, Correct Care 

Solutions, LLC dba The Columbia Regional Care Center, 

Defendants-Appellants.

________________________________________________________________

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CAAP-22-0000699; CIV. NOS. 1CC181000825; 1CC191000332)

JUNE 4, 2024

RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA, and DEVENS, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This personal injury case presents an issue of first

impression: whether an adult child’s claim of loss of parental

Electronically Filed

Supreme Court

SCAP-22-0000699

04-JUN-2024

07:56 AM

Dkt. 26 OP
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consortium is cognizable when the parent has not died but has

entered a persistent vegetative state and will not recover. 

The defendants (GEO Care, Inc.; GEO Care, LLC; Correct

Care, LLC; and Correct Care Solutions, LLC, dba The Columbia

Regional Care Center; collectively “GEO Care”) point out that in

Halberg v. Young, 41 Haw. 634, 642 (Haw. Terr. 1957), this court

held “no action exists in favor of a child for injuries

sustained by the parent not resulting in the parent’s

death.” Consistent with U.S. common law doctrine at that time,

Halberg held that three minor children’s claims for damages

arising out of their mother’s injury for “loss of acts of

kindness, care, attention and other incidents of the parent and

child relationship” failed to state a claim upon which relief

could be granted. 41 Haw. at 634, 635, 642.

The plaintiffs (including Hoku Gec, the adult child of

Curtis Panoke, the individual now in a persistent vegetative

state, collectively “plaintiffs”), however, point out that

in Masaki v. General Motors Co., 71 Haw. 1, 22, 780 P.2d 566,

578 (1989), we held that “a parent may recover damages for the

loss of filial consortium of an injured adult child.” In

Masaki, an adult was rendered a quadriplegic, and this court

affirmed his parents’ damage award for loss of filial

consortium, noting that “severe injury may have just as

deleterious an impact on filial consortium as death.” Masaki,
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71 Haw. at 4, 19-20, 566 P.2d at 569, 577. Masaki also

contained the following footnote, which left open the issues we

address today:

In Halberg v. Young, 41 Haw. 634 (1957), we followed the

traditional common-law rule and held that no cause of

action exists in favor of a child for injuries sustained by

his parents. Appellants claim that our decision

in Halberg is dispositive of the instant case because a

parent’s claim for the lost consortium of a child is merely

the reciprocal of a child’s claim for the lost consortium

of his parents. While we recognize that the two actions

are analogous in many respects, the issue of parental

consortium is not before us today.

Masaki, 71 Haw. at 19 n.8, 566 P.2d at 576 n.8.

The plaintiffs also note that the United States District

Court for the District of Hawaiʻi (“federal district court”)

interpreted Masaki to have implicitly overruled Halberg. The

federal district court anticipated that this court would

recognize an adult child’s claim for loss of parental consortium

in a case of parental injury. Marquardt v. United Airlines, 781

F. Supp. 1487, 1492 (D. Haw. 1992) (“It is this court’s

considered judgment that if presented with the facts present

here the Supreme Court of Hawaii would expressly overrule

Halberg. This court thus finds that a cause of action for loss

of parental consortium now exists under Hawaii Law and that [the

adult child] may maintain an action for the loss of consortium

of her [injured] mother.”); see also Mettias v. United States,

Civ. No. 12-00527 ACK-KSC, 2015 WL 1931082, at *35 (D. Haw. Apr.

21, 2015) (following Marquardt).
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Based on the reasons discussed below, we now recognize a

child’s loss of parental consortium claim when a parent is

severely injured, whether the child is a minor or an adult. 

II. Background

On February 28, 2019, HELG Administrative Services, LLC (as 

conservator for Curtis Panoke) and Katja Gec (as limited 

conservator for Panoke’s minor daughter, K.H.P.G.1) filed a postMedical Inquiry and Conciliation Panel (“MICP”) complaint2

against GEO Care and the State of Hawaiʻi Department of Health; 

Mark A. Fridovich, Ph.D; William P. Sheehan, M.D.; Chiyome L. 

Fukino, M.D.; Linda Rosen, M.D.; and Virginia Pressler, M.D.3 

The complaint alleged as follows: The Columbia Regional Care 

Center is “a 374-bed private detention healthcare facility for 

individuals not competent to stand trial and found not guilty by 

reason of insanity.” The State of Hawaiʻi Department of Health 

1 During the pendency of the circuit court proceedings, Panoke’s minor 

daughter K.H.P.G. (Katarina Hokulani Panoke Gec, or “Hoku”) reached the age 

of majority and was substituted in as a plaintiff in lieu of Katja Gec.

2 The plaintiffs explained that they submitted an inquiry to the MICP on 

May 21, 2018 regarding the medical torts alleged in the complaint. They then 

filed what they call their “pre-MICP complaint” in case number 1CC181000825 

on May 24, 2018. The MICP held a proceeding regarding the inquiry on 

November 29, 2018. On January 8, 2019, the MICP issued a written notice of 

termination of the inquiry. Therefore, the plaintiffs filed what they refer 

to as their “post-MICP complaint” on February 28, 2019 in case number 

1CC191000332. 

The circuit court consolidated the pre-MICP proceedings (1CC18100825) 

and post-MICP proceedings (1CC191000332).

3 The parties later stipulated to dismiss Fridovich, Sheehan, Fukino, 

Rosen, and Pressler. 
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(“DOH”) contracted4 with GEO Care to provide care to Panoke

because Panoke “posed a significant danger to HSH [Hawaiʻi State 

Hospital] patients and HSH staff.” 

Panoke had been charged in 2005 with assault in the second 

degree after attacking an individual at an Aiea homeless 

shelter. Upon his arrest, Panoke was committed to the Kekela 

unit at Queen’s Medical Center for seven weeks, but when his 

level of violence, aggression, and assaultive behavior became 

unmanageable, he was committed to HSH. At a stipulated facts 

trial, the circuit court judge acquitted Panoke of assault in 

the second degree on the ground of physical or mental disease, 

disorder, or defect excluding responsibility. Panoke was 

committed to DOH to be placed in an appropriate institution. 

In 2007, while in DOH custody at HSH, Panoke attacked a 

nurse, fracturing her facial bones. The nurse required 26 

stitches around her left eye. Panoke was then charged with 

assault in the second degree. This time, the circuit court 

found him fit for trial, Panoke pled no contest to the charge, 

4 The DOH and GEO Care entered into a contract on May 1, 2010 to purchase 

health and human services for Panoke. Under sub-section 7.4 of the “General 

Conditions for Health & Human Services Contracts,” the “rights and duties of 

the parties to this Contract[] shall be governed by the laws of the State of 

Hawaiʻi.” For this reason, we apply Hawaiʻi law to this case. 

We also note that, even absent this provision, under this court’s 

modern choice-of-law jurisprudence, we would “look[] to the state with the 

most significant relationship to the parties and subject matter” to decide 

whether Hawaiʻi law would apply. Mikelson v. United Servs. Auto. Ass’n, 107 

Hawaiʻi 192, 198, 111 P.3d 601, 607 (2005). Due to the choice of law 

provision in the contract, we need not address this determination. 
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and the circuit court sentenced him to five years of 

incarceration. In 2010, GEO Care accepted Panoke for mental 

health treatment. DOH extended its contract with GEO Care

multiple times through 2016.

In March 2016, Panoke expressed a desire to return to 

Hawaiʻi, but the DOH had not planned for him to return. During 

the ensuing months, Panoke and his roommates were involved in 

violent altercations. Panoke’s request to be placed in a single 

room was ignored. On June 8 or 9, 2016, Panoke was attacked by 

his roommates while he slept. The attack left him in a 

persistent vegetative state. 

Count One of the complaint alleged negligence or gross 

negligence as to GEO Care and DOH; Count Two alleged negligent 

infliction of emotional distress; Count Three alleged negligent 

or grossly negligent hiring, training, supervision, selection, 

and/or retention of defendants’ employees; Count Four alleged 

breach of fiduciary duty. For each count, plaintiffs alleged 

that, as a direct and proximate cause of defendants’ wrongful 

conduct, they “suffered and will continue to suffer pain and 

suffering, mental anguish, emotional distress, loss of quality 

of life, loss of enjoyment of life, temporary and/or partial 

impairment and/or disability, emotional disfigurement and/or 

scarring, loss of income, economic loss, medical expenses, and 
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other expenses. . . .”5 The complaint prayed for general, 

special, and/or punitive damages. 

GEO Care filed its answer on July 17, 2019 and its first 

amended answer on August 1, 2019. Among the affirmative 

defenses set forth in its answer and first amended answer, GEO 

Care included “lack of standing” and that the complaint “fails 

to state a claim against Defendants upon which relief can be 

granted.” 

On April 13, 2022, GEO Care filed a motion for summary 

judgment (“MSJ”) as to all of Hoku’s claims for relief. GEO 

Care first noted that it did not concede that Panoke was, in 

fact, Hoku’s father, and therefore, alleged Hoku had no standing 

to bring claims relating to Panoke’s injury. Moreover, GEO Care 

argued, “Hawaiʻi does not recognize a cause of action by a child 

for damages arising from a non-fatal personal injury to a 

parent,” citing Halberg, 41 Haw. 634. GEO Care quotes Halberg

as stating that “no action exists in favor of a child for 

injuries sustained by the parent not resulting in the parent’s 

death.” Halberg, 41 Haw. at 642. 

5 As such, the loss of parental consortium claims are derivative claims 

stemming from the negligence causes of action asserted by Panoke’s 

conservator against GEO Care and the DOH. The loss of consortium claims are 

not independent causes of action in and of themselves. See, e.g., Mist v. 

Westin Hotels, Inc., 69 Haw. 192, 199, 738 P.2d 85, 91 (1987) (“In view of 

the basis upon which the loss of consortium claim arises and the significant 

number of jurisdictions that continue to treat it as derivative, we . . . 

refuse to recognize the loss of consortium claim as a separate and 

independent cause of action and continue to treat it as derivative.”).
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Plaintiffs filed their memorandum in opposition to GEO 

Care’s MSJ on June 29, 2022. Preliminarily, they submitted two 

exhibits demonstrating that Hoku was Panoke’s biological child. 

They went on to argue that Halberg does not take into account 

the current case’s circumstances, in which a child plaintiff has 

lost all manner of consortium with her father, who has been in a 

persistent vegetative state for six years and will not recover. 

Plaintiffs cited Masaki’s observation that “no meaningful 

distinction can be drawn between death and severe injury where 

the effect on [filial] consortium is concerned.” 71 Haw. at 20, 

780 P.2d at 577. To further support their position, plaintiffs 

pointed to Marquardt, 781 F. Supp. at 1492, in which the federal 

district court interpreted Masaki as having implicitly overruled

Halberg and predicting that this court would recognize a child’s 

claim for loss of parental consortium where the parent has been 

injured but not killed. 

In GEO Care’s reply, it counter-argued that Masaki ruled 

narrowly on the parents’ claim for loss of filial consortium and 

did not “directly state, or even suggest” that its ruling 

applied to a child’s claim for loss of parental consortium. GEO 

Care pointed to footnote 8 in Masaki, stating that “the issue of 

parental consortium is not before us today.” 71 Haw. at 19 n.8, 

780 P.2d at 576 n.8. 
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On July 7, 2022, the circuit court held a hearing on GEO 

Care’s MSJ. The court indicated it was “going to go out on a 

limb” in denying GEO Care’s MSJ by declining the follow the 

Halberg case. The court’s reasoning was as follows:

[T]he Court finds persuasive the Hawaii Supreme 

Court’s ruling in Masaki v. General Motors.

Now, prior to Masaki, similar to this situation, 

neither the legislature nor the Hawaii courts recognized a 

cause of action for loss of filial consortium resulting 

from injury short of death caused by the wrongful conduct 

of another. Masaki recognized, however, that severe injury 

may have just as deleterious an impact on filial consortium 

as death.

The Supreme Court further held that the cause of 

action was in part based upon intangible elements of love, 

comfort, companionship, and society between child and 

parent rather than the outdated concepts of a child being a 

servant and economic asset to the parent. And that’s 

important because there was a lot of language in Halberg

regarding this type of child being a servant, economic 

asset, etc. And the Hawaii Supreme Court viewed loss of 

consortium more in these what they call intangible elements 

of love, comfort, companionship, and society.

Conversely, the reasoning of Masaki, this Court would 

hold, would apply to the loss of parental consortium 

presented in this case. There’s a genuine issue of 

material fact as to Ms. Panoke Gec’s loss of love, comfort, 

companionship, and society as a result of Curtis Panoke’s 

injury and incapacity.

While not controlling authority, this recognition of 

a cause of action for parental consortium based upon Masaki

was the holding of the court in Marquardt v. United 

Airlines. Again, the Court is considering that federal 

court decision as, while not controlling, persuasive 

authority.

Finally, the Court finds that the Halberg case is 

distinguishable factually from the instant case. While 

Halberg was not explicit about the type of injury suffered 

by the mother in the auto accident, the instant case is a 

case involving catastrophic injury where Mr. Panoke is in a 

vegetative state. Halberg was partly predicated on the 

premise that where a parent has been injured by the 

negligent act of another, the parent will recover from the 

other full damage which he has sustained, including 

inability, if any, to properly care for his children.

Here Mr. Panoke’s condition and the legalities of the 

conservatorship does not enable him to fully recover 

damages for loss of consortium with regard to the daughter. 

So his cause of action here does not cover what Ms. Panoke 

-- Panoke Gec is claiming.
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So therefore, the Court will deny the motion for 

summary judgment.

The circuit court denied GEO Care’s MSJ in an order dated 

September 9, 2022. The circuit court granted GEO Care’s 

application for an interlocutory appeal, GEO Care appealed to 

the ICA, and this appeal was transferred from the ICA to this 

court. 

III. Standard of Review: Summary Judgment

On appeal, the grant or denial of summary judgment is 

reviewed de novo. Summary judgment is appropriate if there is 

no genuine issue as to any material fact and the moving party is 

entitled to judgment as a matter of law. See Villaver v. Sylva,

145 Hawaiʻi 29, 34, 445 P.3d 701, 706 (2019).

IV. Discussion

A. The parties’ arguments on appeal

1. GEO Care’s opening brief

GEO Care’s sole point of error on appeal is that the 

circuit court erred in denying its MSJ. In its opening brief on 

appeal, GEO Care argues that the circuit court disregarded 

established controlling precedent (Halberg), having not been 

overturned since 1957, and unjustifiably departed from the 

doctrine of stare decisis. GEO Care argues that any change to 

Hawaiʻi’s laws on consortium ought to be made by the legislature, 

and the legislature has made no changes to Hawaiʻi Revised 
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Statutes (“HRS”) § 663-1 (2016) since Halberg.6 GEO Care also 

asserts the federal district court misinterpreted Masaki in 

Marquardt to predict that this court would recognize loss of 

parental consortium claims where a parent is injured but still 

alive, because Masaki’s holding should have been limited to 

filial consortium claims. 

Lastly, GEO Care states that a “significant number of 

states refuse to provide children with a cause of action for the 

loss of parental consortium or parental care resulting from non6 GEO Care cites to HRS § 663-1, titled “Torts, who may sue and for 

what.” That statute provides the following:

Except as otherwise provided, all persons residing or being 

in the State shall be personally responsible in damages, 

for trespass or injury, whether direct or consequential, to 

the person or property of others, or to their spouses or 

reciprocal beneficiaries, children under majority, or 

wards, by such offending party, or the offending party’s 

child under majority, or by the offending party’s command, 

or by the offending party’s animals, domestic or wild; and 

the party aggrieved may prosecute therefore in the proper 

courts.

HRS § 663-1 is not the basis of Hoku’s loss of parental consortium claim 

against GEO Care; Hoku brings a common law claim, although HRS § 663-1 does 

specifically provide for “consequential” damages. See HRS § 1-1 

(2009)(“Common law of the State; exceptions. The common law of England, as 

ascertained by English and American decisions, is declared to be the common 

law of the State of Hawaii in all cases, except as otherwise expressly 

provided by the Constitution or laws of the United States, or by the laws of 

the State, or fixed by Hawaiian judicial precedent, or established by 

Hawaiian usage[.]”)

In this case, an adult child’s loss of parental consortium claim arises 

out of “Hawaiian judicial precedent,” similar to our court’s common law 

recognition of a filial consortium cause of action in Masaki, extrapolating 

from HRS § 663-3 (2016), titled “Death by wrongful act.” See Masaki, 71 Haw. 

at 19, 780 P.2d at 576 (“Loss of filial consortium is a recognized cause of 

action in Hawaii under our wrongful death statute. . . .”). Likewise, loss 

of parental consortium or care is a recognized cause of action under HRS § 

663-3(b)(5)(“Loss of parental care, training, guidance, or education”). 

Thus, contrary to GEO Care’s contention, the expansion of law in this 

area can happen through this court’s development of common law, not primarily

through legislative action. 
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fatal injury caused by the alleged wrongful conduct of another,” 

citing 18 cases from other jurisdictions. GEO Care relies 

heavily upon one such case, Kershner v. Beloit Corp., 611 F. 

Supp. 943, 947 (D. Me. 1985), for the following policy reasons 

courts in other jurisdictions have refused to recognize a 

child’s claim of loss of parental consortium where the parent is 

injured but alive:

(1) the lack of precedent for such a cause of action; (2) 

the uncertainty and remoteness of the damages which would 

flow from such a cause of action; (3) the danger of 

duplication of recovery between the child and parents; (4) 

the unsettling effect that the creation of such a cause of 

action would have upon a parent’s settlement negotiations 

with tortfeasors; (5) the increased risk of falsification 

in order to recover under such a cause of action; (6) the 

potential for increased insurance costs; (7) the potential 

harm to the integrity and sanctity of the family unit; (8) 

the lack of statutory authority for the creation of such a 

cause of action; and (9) the legal basis of a child’s claim 

to the services of the parent under the substantive law of 

the state in question.

GEO Care asks this court to vacate or reverse the circuit 

court’s order denying its motion for summary judgment. 

2. Hoku’s answering brief

In her answering brief, Hoku argues that GEO Care’s 

reliance on Halberg is misplaced because (1) cases since Halberg

have left open the possibility of recognizing a loss of parental 

consortium claim when a parent is injured but not killed, citing 

Masaki, 71 Haw. 1, 780 P.2d 566, and Marquardt, 781 F. Supp. 

1487; and (2) this court interprets HRS § 663-3 liberally to 

grant broad remedial relief, citing Lealaimatafao v. WoodwardClyde Consultants, 75 Haw. 544, 867 P.2d 220 (1994), and Castro 
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v. Melchor, 142 Hawaiʻi 1, 414 P.3d 53 (2018) (plurality). 

Further, Hoku argues that GEO Care’s use of out-of-state cases 

is “irrelevant” to determining the nature and scope of a loss of 

consortium claim arising under Hawaiʻi law. Nevertheless, she 

cites Ueland v. Reynolds Metals Co., 103 Wash. 2d 131, 140, 691 

P.2d 190, 195 (Wash. 1984), for the proposition that “a child 

has an independent cause of action for loss of the love, care, 

companionship and guidance of a parent tortiously injured by a 

third party.” In Ueland, while acknowledging that some other 

jurisdictions do not recognize such a claim, the Washington 

Supreme Court stated, “We find more persuasive the reasoning 

found in these decisions recognizing the cause of action. . . . 

When justice requires, this court does not hesitate to expand 

the common law and recognize a cause of action.” Ueland, 103 

Wash. at 135-36, 691 P.2d at 193.

3. GEO Care’s reply brief

In its reply brief, GEO Care notes that Hoku does not 

address its argument that the legislature should be the one to 

create a loss of parental consortium claim where a parent is 

injured but still alive. GEO Care also states that Ueland, a 

Washington state case Hoku relies on, is unpersuasive because it 

relies on Washington law regarding consortium. 
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B. Our precedent

1. Halberg

Halberg held that “no action exists in favor of a child for 

injuries sustained by the parent not resulting in the parent’s 

death.” 41 Haw. at 642. In Halberg, a mother was injured in a 

car accident and suit was brought by her husband and minor 

children, for the loss of the mother’s “kindness, care, 

attention and other incidents of the parent and child 

relationship. . . .” 41 Haw. at 634-35. Although the extent of 

her injuries was unclear, she survived the accident and, unlike 

Panoke, would apparently recover. 41 Haw. at 635, 639-40. The 

Supreme Court of the Territory of Hawai‘i held that her children 

could not maintain an action against those who negligently 

injured her because “[t]here is no decision of a Hawaiian court, 

supreme or nisi prius, that holds a minor child has a cause of 

action for injury to his parent and the overwhelming weight of 

authority is against such action.” 41 Haw. at 638-39.

The Halberg court acknowledged that the United States Court 

of Appeals for the Ninth Circuit had, in fact, recognized such a 

claim in Scruggs v. Meredith, 134 F. Supp. 868, 869-70 (D. Haw.

1955) (holding that a child whose mother was negligently 

injured, but not killed, had a claim against the wrongdoer for 

loss of consortium because reciprocal rights and duties attached 
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to the relations of parent and minor child) (citing Gabriel v. 

Margah, 37 Haw. 571, 577 (Haw. Terr. 1947)).

In insisting that a child’s loss of parental consortium 

claim would only lie where the parent was killed (not just 

injured), however, the Halberg court stated the following:

[W]here a parent has been injured by the negligent act of 

another the parent will recover from the other full damage 

which he has sustained, including such inability, if any, 

to properly care for his children, and thus the parent’s 

ability to carry out his duty to support and maintain the 

child has not, in a legal sense, been destroyed or impaired 

by the injury to him. On the other hand, if the parent 

were killed, the parent’s ability to support and educate 

the child ceases and the child has been deprived of this 

right and the child would be permitted to recover for such 

loss.

41 Haw. at 640. In addition to the injured parent’s ability to 

recover “full damage[s]” from the tortfeasor, the fact of 

eventual physical recovery was also critical to Halberg’s 

holding. The Halberg court rejected the argument “that it is 

merely a difference in degree whether the action is for the 

death of the parent, which deprives the child permanently of 

parental care and support, or whether it is an injury which 

would deprive the child temporarily of such care and support. . 

. .” 41 Haw. at 639-40 (emphases added). In other words, the 

Halberg court assumed injury short of death would not 

permanently deprive a child of parental care and support, which 

is not true in all circumstances. The Halberg court concluded 

that if the claim were to be recognized, it should be done by 

the legislature. 41 Haw. at 646.
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2. Masaki

Thirty years later, this court held that “a parent may 

recover damages for the loss of filial consortium of an injured 

adult child.” Masaki, 71 Haw. at 22, 780 P.2d at 578.7 In 

Masaki, 28-year-old Steven Masaki was rendered a quadriplegic 

after the van he was jump-starting shifted into gear and ran him 

over. 71 Haw. at 4, 780 P.2d at 569. His parents sued in 

negligence and included claims for loss of filial consortium. 

Id. A jury returned a verdict in their favor. Id. On appeal, 

the defendants challenged, among other things, the loss of 

filial consortium award where Steven had been injured but not 

killed. 71 Haw. at 19, 780 P.2d at 576. 

The court in Masaki acknowledged that neither the 

legislature nor this court had previously recognized such a 

claim; however, the court held there was little distinction 

between death and severe injury, so the purposes of HRS § 663-3 

would be served by recognizing the cause of action. 71 Haw. at 

19-20, 780 P.2d at 576-77. The Masaki court stated that “severe 

injury may have just as deleterious an impact on filial 

consortium as death.” 71 Haw. at 19-20, 780 P.2d at 577. 

7 We note that the question on certiorari was framed as “whether there is 

a cause of action available to parents for the loss of consortium of an adult 

child who had been severely and permanently injured due to the defendant’s 

negligence.” Masaki, 71 Haw. at 19, 780 P.2d at 576 (emphases added). We 

think it is clear from the discussion on loss of filial consortium in Masaki

that the holding covers “severe” injury. See Masaki, 71 Haw. at 19-21, 780 

P.2d at 576-78 (using the adjective “severe” to modify “injury” seven times).
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Quoting a sister jurisdiction recognizing the claim, this court 

stated, “Often death is separated from severe injury by mere 

fortuity.” 71 Haw. at 20, 780 P.2d at 577 (quoting Frank v. 

Sup. Court, 150 Ariz. 228, 230, 722 P.2d 955, 957-78 (1986)). 

The Frank court went on to explain

Perhaps the loss of companionship and society experienced 

by the parents of a child permanently and severely injured 

. . . is in some ways even greater than that suffered by 

parents of a deceased child. Not only has the normal 

family relationship been destroyed, as when a child dies, 

but the parent also is confronted with his loss each time 

he is with his child and experiences again the child’s 

diminished capacity to give comfort, society, and 

companionship.

Masaki, 71 Haw. at 20, 780 P.2d at 577 (quoting Frank, 150 Ariz. 

at 231, 722 P.2d at 958). 

This court went even further in Masaki to hold that loss of 

filial consortium should not be limited to parents of severely 

injured minor children. 71 Haw. at 21, 780 P.2d at 577. The

limitation was historically 

premised on the rationale that upon emancipation, parents 

are no longer entitled to the services and earnings of 

their children. We find such reasoning outmoded and 

illogical. At common law, the child, like the wife, was 

relegated to the role of a servant and considered an 

economic asset to the family. In the modern family, 

however, children have become less of an economic asset and 

more of a financial burden to their parents. Today 

children are valued for their society and companionship. 

Thus, services have become only one element of the 

consortium action while the intangible elements of love, 

comfort, companionship, and society have emerged as the 

predominant focus of consortium actions.

Id. (citations omitted). Thus, the claim for loss of filial 

consortium is cognizable even where the severely injured person 

is an adult child. Id. The Masaki court recognized the 
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changing nature of consortium between parents and children as 

one “arising from the very bonds of the family relationship.” 

Id. (citation omitted). 

GEO Care clings to footnote 8 in Masaki to argue that the 

law on parental consortium has not changed. Masaki, 71 Haw. at 

19 n.8, 780 P.2d at 576 n.8 (“[T]he issue of parental consortium 

is not before us today.”). This language, however, neither 

expressly overrules nor affirms Halberg. Id. Rather, it leaves 

the door open for future courts, such as this one, to revisit 

parental consortium claims in non-fatal injury cases. That day 

has come.

We now expressly overrule Halberg to the extent it held 

that a child cannot claim loss of parental consortium where a 

parent is severely injured but not killed. This court does not 

lightly overrule precedent. The doctrine of stare decisis is a 

“principle of self-restraint on courts with respect to the 

overruling of prior decisions.” Robinson v. Ariyoshi, 65 Haw. 

641, 653 n.10, 658 P.2d 287, 297 n.10 (1982) (citation omitted). 

We apply this doctrine with a view toward

the desirability that the law furnish a clear guide for the 

conduct of individuals, to enable them to plan their 

affairs with assurance against untoward surprise; the 

importance of furthering fair and expeditious adjudication 

by elminating the need to relitigate every relevant 

proposition in every case; and the necessity of maintaining 

public faith in the judiciary as a source of impersonal and 

reasoned judgments.
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Id. A court should “not depart from the doctrine of stare 

decisis without some compelling justification.” Ahn v. Liberty 

Mut. Fire Ins. Co., 126 Hawaiʻi 1, 10, 265 P.3d 470, 479 (2011). 

Stated differently, a court “should not overrule its earlier 

decisions unless the most cogent reasons and inescapable logic 

require it.” Id. (citation omitted). 

C. The modern trend

In this case, the law on parental consortium nationwide has 

undergone dramatic change since Halberg was decided almost sixty 

years ago. Significantly more states now recognize the claim 

that Halberg stated did not exist. The Restatement (Third) of 

Torts: Concluding Provisions (AM L. INST., Tentative Draft No. 1,

20228) contains a new claim, albeit limited to minor children, in 

section 48C titled “Loss of Parental Consortium”: 

A minor child of a parent who suffers physical or emotional 

harm, factually caused by the tortious conduct of an actor 

and within the actor’s scope of liability, may recover for 

the loss of society resulting from the parent’s injury. 

Loss of society includes loss of affection, comfort, 

companionship, love, and support, and the loss of services.

The precursor to this section, the Restatement (Second) of 

Torts § 707A, completely denied recovery for loss of parental 

consortium when it was approved in 1977. Restatement (Third) of 

Torts: Concluding Provisions § 48C cmt. a. The Restatement 

8 According to the American Law Institute’s website, this draft 

“represent[s] the Institute’s position until the official text is published.” 

Torts: Miscellaneous Provisions | American Law Institute (ali.org).

[https://perma.cc/SQG2-8B8J]
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(Third) of Torts commentators explained, however, that since 

1977, “there has been a clear and substantial trend toward 

recognizing parental consortium.” Id. According to the 

commentators, “Today, at least 19 states have case law and two 

have statutes permitting parental consortium claims. With three 

states that have not decided the issue, a bare majority of 

states does not recognize parental consortium claims.” 

Restatement (Third) of Torts: Concluding Provisions § 48C cmt. 

b. The commentators noted that Hawaiʻi was not counted among 

those states permitting parental consortium claims, although it 

acknowledged the federal district court’s Marquardt decision. 

Restatement (Third) of Torts: Concluding Provisions § 48C cmt. 

b, Reporters’ Note. 

We now expressly add our state to those permitting parental 

consortium claims and hold that loss of parental consortium is

cognizable for a child, whether a minor or an adult, when a 

parent is severely injured.

Masaki characterized as “outmoded and illogical” the idea 

that children’s (particularly minor children’s) value lay solely 

in their role as servants to their parents:

We realize that a number of courts which recognize the 

parents’ cause of action for loss of consortium of their 

injured children restrict the action to minor children. 

This rule is generally premised on the rationale that upon 

emancipation, parents are no longer entitled to the 

services and earnings of their children. We find such 

reasoning outmoded and illogical. At common law, the 

child, like the wife, was relegated to the role of a 

servant and considered an economic asset to the family. In 
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the modern family, however, children have become less of an 

economic asset and more of a financial burden to their 

parents. Today children are valued for their society and 

companionship. Thus, services have become only one element 

of the consortium action while the intangible elements of 

love, comfort, companionship, and society have emerged as 

the predominant focus of consortium actions.

71 Haw. at 21, 780 P.2d at 577. Stare decisis does not require 

courts to cling stubbornly to the past. See Ahn, 126 Hawaiʻi at 

10, 265 P.3d at 469 (“There is no necessity or sound legal 

reason to perpetuate an error under the doctrine of stare 

decisis.”) (cleaned up). Masaki’s footnote 8, reserving for 

another day the “reciprocal” issue of loss of parental 

consortium, must be read in concert with this passage, signaling 

that Halberg’s days were numbered. 

The passage above from Masaki also signaled this court’s 

view that children in general, whether minor or adult, are 

valued by their parents -- for their love, comfort, 

companionship, and society -- and the reciprocal could be true 

as well. Thus, we now hold that a child, whether a minor or an 

adult, may bring a loss of parental consortium claim for severe 

injury to a parent. The Restatement (Third) of Torts: 

Concluding Provisions § 48C recognizes a “split on whether an 

adult child [versus a minor child] can pursue a parental 

consortium claim.” Restatement (Third) of Torts: Concluding 

Provisions § 48C cmt. g. We find it persuasive, however, that 

multiple states recognize an adult child’s claim for loss of 
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parental consortium where a parent is tortiously injured by a 

third party. See N. Pac. Ins. Co. v. Stucky, 338 P.3d 56, 57-58

(2014) (“Montana law recognizes a claim for loss of consortium 

by the adult child of an injured parent” where the plaintiff 

shows that “a third party tortiously caused the parent to suffer 

a serious, permanent and disabling mental or physical injury 

compensable under Montana law” and “the impairment is so 

overwhelming and severe that it has caused the parent-child 

relationship to be destroyed or nearly destroyed”); Rolf v. TriState Motor Trans. Co., 745 N.E.2d 424, 428 (Ohio 2001) (holding 

that “adult emancipated children may recover for loss of 

parental consortium” where father “suffered a traumatic brain 

injury, is physically and mentally impaired, and will require 

custodial care for the remainder of his life”); Sebastien v. 

McKay, 649 So.2d 711 (La. Ct. App. 1994) (allowing loss of 

parental consortium claims made by adult children when their 

father required constant care due to his temporarily but 

significantly weakened condition due to father’s doctor’s 

negligence in failing to remove a broken tube in father’s back 

post-surgery); Reagan v. Vaughan, 804 S.W.2d 463, 466, 467 (Tex. 

1990) (“We hold that children may recover for loss of consortium 

when a third party causes serious, permanent, and disabling 

injuries to their parent,” and “decline to limit the right of 

recovery under this cause of action to minor children”); 
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Audubon-Exira Ready Mix, Inc. v. Ill. Cent. Gulf R.R. Co., 335 

N.W.2d 148 (Iowa 1983) (holding that adult and married children 

may raise loss of parental consortium claims when a parent is 

injured); see also Nelson v. Four Seasons Nursing Ctr., 934 P.2d 

1104, 1105 (Okla. Civ. App. 1996) (holding, in a case in which 

plaintiff’s father disappeared while under defendant nursing 

home’s care, “In cases where the parent-child relationship is 

destroyed or nearly destroyed by the tort of the defendant, the 

affected children, both minors and adults alike, should be 

allowed to maintain a cause of action for loss of parental 

consortium.”). We now join those jurisdictions in recognizing a 

child’s claim for loss of parental consortium where a third 

party has severely injured a parent, whether the child is a 

minor or an adult. 

V. Conclusion

Hence, we recognize Hoku’s claim for loss of parental 

consortium. Therefore, the circuit court’s order denying GEO 

Care’s motion for summary judgment is affirmed. This case is 
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remanded to the circuit court for further proceedings consistent 

with this opinion. 

Frederick Matson Kelley /s/ Mark E. Recktenwald

(Alex Wilkins and

Jon S. Jacobs with him /s/ Sabrina S. McKenna

on the briefs)

for plaintiffs-appellees /s/ Todd W. Eddins

Jeffrey S. Portnoy /s/ Lisa M. Ginoza

(Trisha L. Nishimoto

and Troy C. Young /s/ Vladimir P. Devens

with him on the briefs)

for defendants-appellants