No. 90-483 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

JOHN R. PENCE, individually, and JUDY L. PENCE, individually and as GuardianAd 

### 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 OFSUPREMECOURT 5TATEOFMONTANA

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, GreatFalls,Montana For Respondent: Tracy A. Axelberg argued,JamesA. Aiken (Raintree Products);Jardine,Stephenson,Blewett andWeaver, 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, 19911 * 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,asguardian for the children, appeals. We reverse and remand for further proceedings on the merits. The issue as restated is: Dominor 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. Theaction inbehalf of theparents 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: JohnPence isthehusband ofplaintiff,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 theyard 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. 1He 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 fouryears of age and Jared was three years of age at the time of Mr. Pence's injury. A look at thehistory of loss of consortium claims ishelpful in analyzing the issuebefore 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 thehusband the right tobring consortium claimswhen the loss

was caused by an act of negligence. With the adoption of the Married Women's Acts, thewife was finallyable tobring consortium claims in courts of law for loss caused by intentional acts. It wasn't until 1950that the lawrecognized thewife's right tobring 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 inBain 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 childwhose parenthas been killed. Dawsonv. 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 recognizethe child's right torecoverwhen aparent 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 jurisdictionsdonot asyet recognizethe claim of a child for loss of parental consortium. (Arkansas, California, Colorado, Florida, Georgia, Illinois,Minnesota,NewYork,NorthDakota,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 (4thed. 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 (4thed. 1971), 1 125 at 896. Thedefendants argue thatbecause social and economic factorsshould 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. Thecontentionthat recognition of such a causeof 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), 311N.W.2d 259, 266. [Sluchan argument ignores our responsibility to face a difficult legal question and accept judicial responsibility for a needed change in the common law 

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# . . when the conditions and needs of the society have changed, judges must adapt the common law to those new conditions 

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# . 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 Courtpremised 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 includesa 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 formutual 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: Theparent orparents entitled to custody of a childmust 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 statutebut bycourt 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), 85Mont. 492, 516, 279 P. 374, 382. The rationalebehind Wallace, Duffv,Dutton, and Hall, supra, apply equally well toparent-child relationships. Like the rightsof 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

reKrug (1988),231Mont. 78, 751 P.2d 171. Inaddition, 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, thebroader term, Itlossof society and companionshipfUt is equally appropriate. Use of the latter term avoids the narrower construction connoting thisright derivesprimarily fromthe sexual relationship incident tomarriage. 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,Torts5 125at 889 (4thed. 1971) as cited in CJI-Civ.2d 6:7 (1980)

### 1, courts have continued to regard loss of consortiumto embrace all of those values 

## -- tangible and intangible

## -- inherent in the familyrelationship. Inhis treatise, Clark (supra.) asserts that the term loss of consortium is equally appropriate in referencetotheparent-child relationship to summarize Itthe multitude of rights and dutiesbinding 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 protectedaspects. (Citationsomitted). Reighleyv. International Playtex,Inc. (D.Colo. 1985)

## , 604F.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 rolemodel. Even courts that deny theparental consortiumcauseof 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 lossofparental consortium arising fromtheir parentIs injurywould, in ourview, be inconsistent with the legislature's authorization of suchrecoverywhenthe 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. (Citationsommitted). Hibpshmanv. 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 theirparent. Thispolicy 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 havebeen deprived of these rights have a separate cause of action for loss ofparental consortiumwhen 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 lossesmay be recoveredby 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 awardsmust be consideredby 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. Suchprocedure furnishestheopportunitytopreventdoublerecovery for economic losses such as support and education of the children. We reverse and remand to the District Court for further 

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, i Chief Justice