No. 90-483 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

JOHN R. PENCE, individually, and 

JUDY L. PENCE, individually and as 

Guardian Ad item of BRITTNEY PENCE 

and JARED PENCE, 

Plaintiffs and Appellants, 

BINGHAM R. FOX and BARBARA A. FOX, 

d/b/a RAINTREE PRODUCTS; HAROLD 

STRUCK and BETTY STRUCK, d/b/a 

ALL SEASONS SPAS ; KELLER SUPPLY CO. , d/b/a KELLER S LEISURE SUPPLY ; and 

JOHN DOES I-V, 

Defendants and Respondents. 

CI-ERK OF SUPREME COURT 

5TATE OF MONTANA 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Norman L. Newhall and Floyd D. Corder argued; 

Alexander, Baucus & Linnell, Great Falls, Montana 

For Respondent: 

Tracy A. Axelberg argued, James A. Aiken (Raintree 

Products); Jardine, Stephenson, Blewett and Weaver, 

Great Falls, Montana 

Lee LeVeque (All Season Spas) ; Conklin, Nybo, 

LeVeque & Murphy, Great Falls, Montana 

Keith Strong argued (Keller Supply) ; Dorsey & 

Whitney, Great Falls, Montana 

For Amicus Montana Trial Lawyers Association: 

W. William Leaphart argued; Leaphart Law Firm, 

Helena, Montana 

Filed: 

Heard: April 19, 1991 
1 * 

Justice Fred J. Weber delivered the Opinion of the Court. 

Plaintiffs brought this suit arising from personal injuries 

sustained by John R. Pence. The District Court for the Eighth 

Judicial District, Cascade County, granted defendants' motions, 

pursuant to Rule 12(b), M.R.Civ.P., to dismiss loss of consortium 

claims of Brittney and Jared Pence, brought by their mother and 

guardian, Judy L. Pence. Mrs. Pence, as guardian for the children, 

appeals. We reverse and remand for further proceedings on the 

merits. 

The issue as restated is: Do minor children have a separate 

cause of action for loss of parental consortium when a parent is 

tortiously injured by a third party and rendered a quadraplegic? 

The District Court determined that the children did not state 

a claim upon which the Court could grant relief. The District 

Court expressly directed immediate entry of judgment against the 

children in the interest of judicial economy. The action in behalf 

of the parents is pending the outcome of this appeal so that if the 

children do have a claim upon which the Court could grant relief, 

the cases can be tried together. As alleged in plaintiffs' 

complaint, the facts are essentially as follows: 

John Pence is the husband of plaintiff, Judy Pence, and father 

of plaintiffs, Brittney and Jared Pence. Defendants Harold Struck 

and Betty Struck, d/b/a All Seasons Spas, sold and installed a hot 

tub in the yard of Connie Jensen. The hot tub was manufactured by 

defendants Bingham R. Fox and Barbara A. Fox, d/b/a Raintree 

Products. On January 2, 1988, Mr. Pence was using the hot tub. 

1 
He emerged from the hot tub and trotted a short distance into the 

yard whereupon, suddenly and without warning, he was rendered 

immediately unconscious and collapsed forward, striking his face 

against the frozen ground with such force that his C5 vertebra 

burst from the impact and he was rendered a helpless quadriplegic. 

Brittany was four years of age and Jared was three years of age at 

the time of Mr. Pence's injury. 

A look at the history of loss of consortium claims is helpful 

in analyzing the issue before this Court. Ancient Roman civil law 

provided that only a husband could bring loss of consortium claims 

when the loss was caused by intentional torts. This law carried 

into the common law of England. Over time the wife was given the 

right to bring consortium claims in ecclesiastical courts but not 

courts of law. During the 19th century the law was expanded to 

give the husband the right to bring consortium claims when the loss 

was caused by an act of negligence. With the adoption of the 

Married Women's Acts, the wife was finally able to bring consortium 

claims in courts of law for loss caused by intentional acts. It 

wasn't until 1950 that the law recognized the wife's right to bring 

consortium claims for loss caused by negligent acts. 

Montana Federal District Court was the first to recognize the 

wife's right to sue for loss of consortium in Montana. Duffy v. 

Lipsman, 200 F.Supp. 71 (D.Mont. 1961) ; Dutton v. Hightower 

(D.Mont. 1963), 214 F.Supp. 298; Hall v. United States (D.Mont. 

1967), 266 F.Supp. 671. In 1986, this Court also recognized the 

wife's right to sue for loss of consortium claims in Montana in 
Bain v. Gleason, (1986), 223 Mont. 442, 726 P.2d 1153. 

Montana currently allows loss of consortium claims by a 

husband or wife whose spouse has been killed or injured. Montana 

also allows loss of consortium claims, pursuant to Montana's 

Wrongful Death Statutes, by a parent whose child has been killed, 

and by a child whose parent has been killed. Dawson v. Hill & Hill 

Truck Lines (1983) 206 Mont. 325, 671 P.2d 589; Ewalt v. Scott 

(1983), 206 Mont. 503, 675 P.2d 77. The question is whether this 

Court will now recognize the child's right to recover when a parent 

is seriously injured rather than killed. 

Prior to 1980 no state recognized such a claim. Since 1980 

there has been a growing trend to recognize loss of parental 

consortium claims. At least ten states now recognize such claims. 

(Arizona, Alaska, Vermont, Washington, Wisconsin, Iowa, Michigan, 

Massachusetts, Oklahoma, and Texas.) However, the majority of 

jurisdictions do not as yet recognize the claim of a child for loss 

of parental consortium. (Arkansas, California, Colorado, Florida, 

Georgia, Illinois, Minnesota, New York, North Dakota, Ohio, Oregon, 

Pennsylvania, Missouri, North Carolina, Tennessee, Maryland, 

Louisiana, Nevada, New Jersey, Kansas, Indiana, and 3rd Cir.). 

Defendants cite Prosser for the rule that the child's claim 

for loss of consortium has not been widely recognized. Prosser, 

Torts (4th ed. 1971), §§ 124, 125 at 886, 894. We note that in the 

same edition Dean Prosser criticized the failure of the courts to 

compensate children. Prosser, Torts (4th ed. 1971), 1 125 at 896. 

The defendants argue that because social and economic factors 
should be considered before extending to children the right to 

consortium claims, the legislature is the appropriate body to 

create such an expansion. The courts have the responsibility to 

reform common law as justice requires. We agree with and adopt 

the following conclusions of the Supreme Courts of Iowa and 

Vermont. 

The contention that recognition of such a cause of action 

is a question for the legislature ignores the fact that 

the action for loss of consortium is a creation of the 

common law, and that the development of the common law 

is within the proper sphere of our authority and 

responsibility. 

Wietl v. Moes (Iowa, 1981), 311 N.W.2d 259, 266. 

[Sluch an argument ignores our responsibility to face a 

difficult legal question and accept judicial 

responsibility for a needed change in the common law . . . when the conditions and needs of the society have 

changed, judges must adapt the common law to those new 

conditions . . . It must also be noted that our 

recognition of a new cause of action for the loss of 

parental consortium, as in the present case, in no way 

precludes the legislature from addressing the subject; 

it is still free to act. The legislature may ratify, 

limit or reject our holding. 

Hay v. Medical Center Hosp. (Vt. 1985), 496 A.2d 939, 945-46. We 

reject the defendantst argument that the loss of parental 

consortium cause of action should be left solely to the 

legislature. 

In refusing to recognize a child's right to sue for loss of 

consortium for injury to a parent, the District Court premised its 

conclusion upon the assumption that loss of consortium actions in 

Montana is exclusively statutory rather than common law. The 

District Court cited Bain, 223 Mont. at 445, 726 P.2d at 1155, 

which stated: 
. . . the basis for a consortium claim lies in Montana 

statutes in which husband and wife contract for the 

obligation of mutual respect, fidelity, and support. 

Section 40-2-101, MCA. We further agree with the court 

in Dutton, supra, that consortium includes a legal right 

to the aid, protection, affection and society of the 

other spouse. 

See also Gunning v. General Motors Corp. (1989), 239 Mont. 104, 

107, 779 P.2d 64, 66. Section 40-2-101, MCA, reads: 

Husband and wife contract toward each other obligations 

of mutual respect, fidelity, and support. 

Section 40-2-101, MCA, does not Itcreatett the cause of action. 

It merely defines the obligations which inhere in the marriage 

relationship and upon which the common law action is based. The 

inaccuracy of the defendantst conclusion that the legislature 

created the claim through 5 40-2-101, MCA, is proven by the fact 

that the statute has been on the books since 1895, but it was not 

until 1986 that this Court recognized the claim. The statute 

merely codifies the policy behind the common law by recognizing 

that spouses contract with one another for mutual obligations. 

In the same way that 5 40-2-101, MCA, defines the marriage 

obligations upon which the common law action of loss of spousal 

consortium is based, 5 40-6-211, MCA, defines the obligation of 

support which inheres in the parent-child relationship. Section 

40-6-211, MCA, provides: 

The parent or parents entitled to custody of a child must 

give him support and education suitable to his 

circumstances. 

The consortium rights of spouses, and parents in the case of 

loss resulting from a child's injury or death, and children in the 

case of a deceased parent, have arisen not only by statute but by 
court decisions extending the common law that once gave only 

husbands that right. In 1929 this Court held that "in addition to 

support, a wife is entitled to the aid, protection, affection, and 

society of her husband.It Wallace v. Wallace (1929), 85 Mont. 492, 

516, 279 P. 374, 382. The rationale behind Wallace, Duffv, Dutton, 

and Hall, supra, apply equally well to parent-child relationships. 

Like the rights of a wife, the 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) ; In 

re Krug (1988), 231 Mont. 78, 751 P.2d 171. In addition, the child 

has the right to parental discipline, guidance and training. 

Coloradots Federal District Court came to the following 

conclusions: 

While the term ttloss of consortiumtt has been attached to 

the childrents claim, the broader term, Itloss of society 

and companionshipfUt is equally appropriate. Use of the 

latter term avoids the narrower construction connoting 

this right derives primarily from the sexual relationship 

incident to marriage. Indeed, loss of consortium is 

useful though ambiguous term having a rather oldfashioned ring today." H. Clark, Domestic Relations § 

10.1 (1968). While companionship may include sexual 

relations [See, e.g. Prosser, Torts 5 125 at 889 (4th ed. 

1971) as cited in CJI-Civ.2d 6:7 (1980) 1, courts have 

continued to regard loss of consortium to embrace all of 

those values -- tangible and intangible -- inherent in 

the family relationship. In his treatise, Clark (supra.) 

asserts that the term loss of consortium is equally 

appropriate in reference tothe parent-child relationship 

to summarize Itthe multitude of rights and duties binding 

parents to their children and vice versa.It Clark at 5 

10.1 (1968) . 

Thus, in the context of the parent-child relationship, 

the term consortium encompasses a complex of rights -- 

care, comfort, guidance, society, companionship -- which 

is imbued from the earliest stages of bonding infant to 

parent. Indeed, the family unit has been recognized by 

the Supreme Court to bear constitutionally protected 
aspects. (Citations omitted). 

Reighley v. International Playtex, Inc. (D.Colo. 1985) , 604 F.Supp. 

We also cite with approval the Alaska Supreme Court which 

stated: 

When a parent is seriously injured, his or her child 

suffers a loss of enjoyment, care, guidance, love and 

protection, and is also deprived of a role model. Even 

courts that deny the parental consortium cause of action 

have acknowledged the reality of such emotional and 

psychological injury to the child, and the Alaska 

legislature has implicitly done so in allowing recovery 

by children for loss of consortium under Alaska's 

wrongful death statute. 

Precluding minor children from maintaining a cause of 

action for loss of parental consortium arising from their 

parent Is injury would, in our view, be inconsistent with 

the legislature's authorization of such recovery when the 

parent dies, and with our prior holding in Fruit that a 

husband or wife may recover damages for loss of 

consortium when an injured spouse survives. The claim 

for loss of parental consortium presented in this case 

is not sufficiently distinguishable from either spousal 

consortium claims in injury cases or children's 

consortium claims in death cases to warrant nonrecognition. (Citations ommitted). 

Hibpshman v. Prudhoe Bay Supply, Inc. (Alaska 1987), 734 P.2d 991, 

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 testn in custody determinations under 5 40-4-212, MCA, and 

the right of the child to seek damages under Montana's Wrongful 

Death Statute. See 55 27-1-512 and 513, MCA, and Ewalt, 206 Mont. 

503, 675 P.2d 77. Therefore we hold that minor 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 quadraplegic. 

However, we caution that any one element of damages for the 

injury may be recovered only once. Damages for support and 

education under B 40-6-211, MCA, that go to the benefit of the 

child may be recovered by the injured parent, a spouse or by the 

child. While these economic losses may be recovered by the injured 

parent, a spouse or the child, the damages for loss of parental 

aid, protection, affection, society, discipline, guidance and 

training are recoverable only by the child. Therefore possible 

duplication of damage awards must be considered by the trial court 

in order to prevent double recovery for any element of damages. 

We approve of the procedure used in the present case where the 

consortium claims brought in behalf of the children are combined 

with the consortium claims of the injured parent and the spouse. 

Such procedure furnishes the opportunity to prevent double recovery 

for economic losses such as support and education of the children. 

We reverse and remand to the District Court for further 

24 , 

i Chief Justice