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CAMPOS v. COLEMAN—DISSENT

ZARELLA, J., with whom ESPINOSAandROBINSON,

Js., join, dissenting. It is not the duty of this court to

make law. That is a task properly left to the legislature.

‘‘To do otherwise, even if based on sound policy and

the best of intentions, would be to substitute our will

for that of a body democratically elected by the citizens

of this state and to overplay our proper role in the

theater of [state] government.’’ DeSantis v. Prelle, 891

A.2d 873, 881 (R.I. 2006). In the present case, the majority steps beyond the limited role of judicial decision

making and into the role of lawmaking by recognizing

a new cause of action for loss of parental consortium.

I therefore respectfully dissent.

In Mendillo v. Board of Education, 246 Conn. 456,

717 A.2d 1177 (1998), we declined to recognize a common-law claim for the loss of parental consortium. Id.,

461, 477. Our rationale was ‘‘that the balance of reasons

and public policies tips against the recognition of such

a claim.’’ Id., 477. In the present case, however, after

concluding that the benefits of recognizing a loss of

parental consortium claim now outweigh its costs, the

majority decides to abandon Mendillo and recognize

such a claim. I cannot agree. I express no opinion as

to the merits of recognizing such a claim from a policy

perspective. Rather, as a matter of prudence, I believe

it is unwise to create such a claim by judicial authority.

In my view, this is a matter best left to the sound judgment of the legislature. Accordingly, I would affirm the

judgment of the trial court.

I do not dispute that this court has the authority to

change the common law to conform to the times. In a

society of ever increasing interdependence and complexity, however, it is an authority this court should

exercise only sparingly. Restraint is especially required

when we are asked, as in this case, to address policy

questions concerning families and familial relationships.1 The majority outlines five policy considerations

that underlie whether this court should recognize a

cause of action for loss of parental consortium, and

there are undoubtedly more that are implicated. However, these considerations can properly be evaluated

only after gathering and considering all of the relevant

facts, many of which are not before us in this case.

Indeed, we previously have recognized that ‘‘[i]t is

not the role of this court to strike precise balances

among the fluctuating interests of competing private

groups . . . . That function has traditionally been performed by the legislature, which has far greater competence and flexibility to deal with the myriad complications which may arise from the exercise of . . .

rights by some in diminution of those of others.’’

Cologne v. Westfarms Associates, 192 Conn. 48, 65, 469
A.2d 1201 (1984). Thus, the legislature, unlike this court,

is institutionally equipped to gather all of the necessary

facts to determine whether a claim for loss of parental

consortium should be permitted and, if it should, how

far it should extend. The legislature can hold public

hearings, collect data unconstrained by concerns of

relevancy and probative value, listen to evidence from

a variety of experts, and elicit input from industry and

society in general. Further, elected legislators, unlike

the members of this court, can be held directly accountable for their policy decisions. Finally, the legislature

can produce a comprehensive policy by enacting a statutory scheme that provides notice and predictability to

insurers and insureds that allows them to plan

accordingly.

In contrast, this court is limited to deciding only the

cases and questions before it, and, therefore, it is

restricted to the facts presented in this case. As a result,

there is no evidence or data before this court regarding

the consequences of allowing this new claim. The court

has not heard from, and cannot consult, experts regarding the likely increases in litigation, jury awards, or

insurance premiums. Likewise, statistics regarding the

average Connecticut family size and structure—for

example, how many Connecticut children are raised by

adults other than their legal parents, such as aunts and

uncles, grandparents, older siblings, foster parents,

etc.—are not before the court. Additionally, this court

has heard no ‘‘testimony’’ regarding the impact the recognition of a claim for loss of parental consortium has

had in states that have allowed it. Undoubtedly, these

are all important considerations when the public policies that underlie a claim forloss of parental consortium

are weighed. Moreover, ‘‘the judicial process, though

public in name, is private in essence. The public cannot

broadly petition [a] court to urge it to reach a particular

result . . . . [A court cannot] take testimony from all

the persons or factions who may have an interest, or

effectively weigh the competing interests that they may

have.’’ R. Young, ‘‘A Judicial Traditionalist Confronts

the Common Law,’’ 8 Tex. Rev. L. & Pol. 299, 304 (2004).

Consequently, this court’s ad hoc decisions regarding

the extent and limits of a claim for loss of parental

consortium will provide no predictability, and determinations of whether liability exists will be made only

after harm has occurred. Thus, the question of whether

to overturn Mendillo should be left to the legislature.

Setting aside the fact that this court should not be

making this policy determination, I note that the weight

of authority in otherjurisdictions suggests that Mendillo

was correctly decided. The majority claims that ‘‘the

vast majority of states have recognized the cause of

action, either for cases arising from a parent’s injury,

or for cases arising from a parent’s death, or both.’’ The

majority is incorrect. In fact, only a minority of states

have recognized the cause of action the majority cre-
ates, and, of those states, only one has done so in the

absence of some legislative pronouncement regarding

relevant public policy.

Before I review the decisions of our sister states, it

is important to properly frame the cause of action in

question. In its analysis, the majority relies on, and thus

conflates, authority from other jurisdictions recognizing two distinct and separate causes of action: loss of

consortium arising from a nonfatal parental injury and

loss of consortium arising from a parent’s wrongful

death. These are very different causes of action and

must be treated as such. In the present case, the issue

is whether the court should recognize a cause of action

for the loss of consortium arising from a nonfatal parental injury. It is therefore appropriate to rely on only

those cases involving this same claim. A claim for the

loss of consortium arising from a parent’s wrongful

death is an entirely different claim, and, therefore, to

the extent the majority relies on authority from jurisdictions that recognize that claim, its reliance is misplaced.2

Mindful of this distinction, my review reveals that

only seventeen states have recognized a claim for the

loss of consortium arising from a nonfatal parental

injury,3 with twenty-eight states and the District of

Columbia declining to recognize such a claim.4 The law

in the remaining five states is either unclear or those

states have not addressed this question.5

Moreover, it is not enough to undertake a survey of

our sister states and tally how many have or have not

recognized a cause of action for loss of parental consortium. A deeper reading of the cases is required to

develop a full understanding of the weight of authority.

The majority states that ‘‘we no longer can conclude

that the weight of authority supports our holding in

Mendillo, much less that it does so overwhelmingly.’’

Text accompanying footnote 15 of the majority opinion.

The weight of authority, however, has remained largely

unchanged since our decision in Mendillo. Indeed, all

three states that have considered the viability of a cause

of action for loss of parental consortium arising from

a parent’s nonfatal injury since Mendillo was decided

in 1998 have declined to recognize this claim. See Lambert v. Franklin Real Estate Co., 37 S.W.3d 770, 780

(Ky. App. 2000); Harrington v. Brooks Drugs, Inc., 148

N.H. 101, 104, 808 A.2d 532 (2002); Taylor v. Beard, 104

S.W.3d 507, 511 (Tenn. 2003). But cf. Brenneman v.

Board of Regents, 135 N.M. 68, 72, 84 P.3d 685 (App.)

(allowing recovery for loss of parental consortium

under New Mexico Tort Claims Act), cert. denied, 135

N.M. 51, 84 P.3d 668 (2003). The last state to recognize

a claim for loss of parental consortium in connection

with a parent’s nonfatal injury was Ohio in 1993, five

years before Mendillo. See Gallimore v. Children’s Hospital Medical Center, 67 Ohio St. 3d 244, 255, 617 N.E.2d
1052 (1993). Thus, there has been no change in the

weight of authority since our decision in Mendillo.

With respect to the basis for creating such a cause

of action, four of the seventeen states that recognize

the claim have done so by statute.6 Thus, the majority

cannot rely on these four states to support its decision

to create a cause of action judicially because each of

those states created the cause of action through acts

of their legislatures. Furthermore, in at least one of

these states, the legislative act superseded an earlier

court decision expressly declining to recognize a cause

of action for loss of parental consortium. Zorzos v.

Rosen ex rel. Rosen, 467 So. 2d 305, 307 (Fla. 1985).

In the thirteen remaining states that have created, by

decisional law, a cause of action for loss of parental

consortium arising from a parent’s nonfatal injury,

twelve relied, at least in part, on wrongful death statutes

allowing children to recover damages for loss of parental consortium.7

In all of those states, the courts reasoned that allowing such damages under the wrongful

death statute was a legislative expression of the state’s

public policy and that it would be inconsistent with the

policy of the state to deny recovery when the parent

is not fatally injured. See, e.g., Hibpshman v. Prudhoe

Bay Supply, Inc., 734 P.2d 991, 994 (Alaska 1987)

(‘‘[p]recluding minor children from maintaining a cause

of action for loss of parental consortium arising from

their parent’s injury would . . . be inconsistent with

the legislature’s authorization of such recovery when

the parent dies’’); Villareal v. Dept. of Transportation,

160 Ariz. 474, 479, 774 P.2d 213 (1989) (‘‘[the Arizona]

legislature recognizes the value of the parent-child relationship and allows children to recoverfor the wrongful

death of a parent’’); Williams v. Hook, 804 P.2d 1131,

1136–37 (Okla. 1990) (‘‘[W]e are hard pressed to find a

distinction between allowing children to recover for

loss of consortium a child suffers through the actual

death of a parent under [Oklahoma’s wrongful death

statute] and refusing to allow recovery for the loss of

consortium when for all practical purposes the parent

is in a state which equates death. . . . In enacting [that

statute], the [Oklahoma] [l]egislature has acknowledged that children have a legal entitlement to their

parent’s society.’’ [Citation omitted; footnotes omitted.]); Belcher v. Goins, 184 W. Va. 395, 403, 400 S.E.2d

830 (1990) (‘‘the [West Virginia] legislature has implicitly recognized legal entitlement to parent consortium

in nonfatal injury cases by explicitly recognizing entitlement to parental consortium in wrongful death cases’’).

In Connecticut, however, the legislature has not created a cause of action for the loss of parental consortium arising from wrongful death. Connecticut’s

wrongful death statute allows only a spouse to recover

for the postmortem loss of spousal consortium. See

General Statutes § 52-555a. If the legislature also had
wanted to allow recovery for the postmortem loss of

parental consortium, it certainly could have done so.

See, e.g., Dept. of Public Safety v. State Board of Labor

Relations, 296 Conn. 594, 605, 996 A.2d 729 (2010).

After a more searching review of the law in our sister

states, it is evident that Wisconsin is the only jurisdiction on which the majority can rely to support its position. Indeed, Wisconsin is the only state that has

recognized the claim for loss of parental consortium

arising from a parent’s nonfatal injury through decisional law without relying on a previous expression of

policy by the legislature. See Theama v. Kenosha, 117

Wis. 2d 508, 527, 344 N.W.2d 513 (1984). As I previously

discussed, of the seventeen states thatrecognize a claim

for the loss of parental consortium arising from a nonfatal parental injury, sixteen have done so in reliance on

the legislature’s expression of the state public policy on

parental consortium claims. Accordingly, the majority’s

statement that the weight of authority no longer supports our decision in Mendillo misrepresents the state

of the law across the nation.

What is also clear from reviewing decisions from

otherjurisdictions is that courts are deeply divided over

whether public policy favors recognizing a cause of

action for the loss of parental consortium. For example,

courts have reached different conclusions with respect

to whether a child’s claim for loss of parental consortium arising from a nonfatal injury will result in double

recovery. Compare, e.g., Borer v. American Airlines,

Inc., 19 Cal. 3d 441, 448, 563 P.2d 858, 138 Cal. Rptr. 302

(1977)(‘‘[d]ifficulty in defining and quantifying damages

leads in turn to risk of double recovery: to ask the jury,

even under carefully drafted instructions, to distinguish

the loss to the mother from her inability to care for her

children from the loss to the children from the mother’s

inability to care for them may be asking too much’’),

and Russell v. Salem Transportation Co., 61 N.J. 502,

507, 295 A.2d 862 (1972) (‘‘[t]he asserted social need

for the disputed cause of action may well be qualified,

at least in terms of the family as an economic unit, by

the practical consideration recognized by many of the

cases on the point that reflection of the consequential

disadvantages to children of injured parents is frequently found in jury awards to the parents on their

own claims under existing law and practice’’), with Hay

v. Medical Center Hospital, 145 Vt. 533, 541–42, 496

A.2d 939 (1985) (‘‘The recognition of a separate cause

of action on behalf of a minor child . . . will allow

juries to properly allocate losses among the separate

claims of multiple plaintiffs. We are confident in the

ability of . . . trial court judges to give adequate jury

instructions concerning the computation and allocation

of damages, and of juries to follow such instructions.’’),

and Nulle v. Gillette-Campbell County Joint Powers

Fire Board, 797 P.2d 1171, 1176 (Wyo. 1990) (‘‘The

specter of double recovery can be easily eliminated
by the trial court’s distinctly specifying in proper jury

instructions the respective elements of damages to

which the parent and the child are each entitled. We

presume the jury reads and follows its instructions.’’).

Additionally, some courts have dismissed the argument that creating this new claim would result in

increased insurance premiums and a societal economic

burden. See, e.g., Berger v. Weber, 411 Mich. 1, 15, 303

N.W.2d 424 (1981) (‘‘[C]ompensating a child who has

suffered emotional problems because of the deprivation

of a parent’s love and affection may provide the child

with the means of adjustment to the loss. The child

receives the immediate benefit of the compensation, but

society will also benefit if the child is able to function

without emotional handicap. This may well offset any

increase in insurance premiums.’’); Ueland v. Pengo

Hydra-Pull Corp., 103 Wn. 2d 131, 140, 691 P.2d 190

(1984) (rejecting argument that recognition of claim

would increase insurance rates by stating ‘‘[t]his is a

standard argument raised against expanding any area

of tort liability’’). At the same time, other courts have

expressed genuine concern over the societal cost of

increased litigation, higher insurance premiums, and

more individuals forgoing insurance altogether. See,

e.g., Salin v. Kloempken, 322 N.W.2d 736, 741 (Minn.

1982) (‘‘[r]ealistically, the burden of paying damage

awards will be borne by the public generally in

increased insurance premiums or, alternatively, in the

enhanced danger that accrues from the greater number

of people who may choose to go without insurance’’);

Harrington v. Brooks Drugs, Inc., supra, 148 N.H. 104

(‘‘The probability of increased litigation and multiple

claims, which will hinder settlements and increase

expenses, is . . . a concern . . . . In addition, we

remain concerned that the social burden of providing

damages for this loss will ultimately be borne by the

public . . . .’’ [Citation omitted; internal quotation

marks omitted.]). When reasonable minds can differ,

as they have in other cases addressing this issue, this

court should not impose its will on the public. Instead,

it should defer to the legislature, which can fully assess

and more accurately weigh the relevant policy considerations.

In light of the foregoing considerations, prudence

counsels this court to stay its hand. Instead, the majority’s recognition of a cause of action for loss of parental

consortium raises more questions than it answers. For

example, insurers and defendants are left to wonder

where the line between liability and nonliability truly

lies. Can grandchildren bring a cause of action for loss

of consortium when a grandparent who raises them is

injured? Similarly, should liability be permitted when

the relationship between a child and his or her noncustodial parent is impaired?8 Deciding where to draw the

line is essentially a political decision that turns on a

number of socio-economic factors, and it should there-
fore be left to the legislature. See, e.g., Borer v. American Airlines, Inc., supra, 19 Cal. 3d 446–47; Guenther

ex rel. Guenther v. Stollberg, 242 Neb. 415, 419, 495

N.W.2d 286 (1993).

‘‘This uncertainty suggests that the legislature, which

can invite public participation in the analysis of all

relevant policy considerations and provide clear prospective rules to implement that policy, is better suited

than this court to determine the costs and benefits of

various liability regimes. . . . Our sympathy for the

[children who have lost the love, affection, and society

of a parent] . . . should not lead us to usurp the legislature’s authority to formulate public policy in this area.’’

Craig v. Driscoll, 262 Conn. 312, 352–53, 813 A.2d 1003

(2003) (Sullivan, C. J., dissenting). The legislature is

better equipped to consider and resolve the competing

policy concerns at play. Moreover, if experience proves

that the balance between liability and nonliability is not

properly struck, the legislature is free to modify the

cause of action at any time. Courts, on the other hand,

must await a proper case and a ‘‘demonstration of error,

illogic, or incongruity . . . .’’ Norwest v. Presbyterian

Intercommunity Hospital, 293 Or. 543, 553, 652 P.2d

318 (1982). Accordingly, as I previously discussed, the

question of whether to recognize a claim for the loss

of parental consortium arising from a parent’s nonfatal

injury should be addressed by the legislature, not

this court.

Finally, the doctrine of stare decisis dictates that we

should follow Mendillo, not overturn it.9

In State v.

Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), Justice

Palmer, the author of the majority opinion in the present

case, noted: ‘‘This court has repeatedly acknowledged

the significance of stare decisis to our system of jurisprudence because it gives stability and continuity to

our case law. . . . The doctrine of stare decisis counsels that a court should not overrule its earlier decisions

unless the most cogent reasons and inescapable logic

require it. . . . Stare decisis is justified because it

allows for predictability in the ordering of conduct,

it promotes the necessary perception that the law is

relatively unchanging, it saves resources and it promotes judicial efficiency. . . . It is the most important

application of a theory of decisionmaking consistency

in our legal culture and . . . is an obvious manifestation of the notion that decisionmaking consistency itself

has normative value.’’ (Citation omitted; internal quotation marks omitted.) Id., 519. ‘‘The doctrine of stare

decisis protects the legitimate expectations of those

who live under the law, and . . . is one of the means by

which exercise of an arbitrary discretion in the courts is

restrained.’’ (Citation omitted; internal quotation marks

omitted.) Hubbard v. United States, 514 U.S. 695, 716,

115 S. Ct. 1754, 131 L. Ed. 2d 779 (1995) (Scalia, J.,

concurring in part and concurring in the judgment). We

also have recognized that this court will overrule a
previous decision when it is clearly wrong. See, e.g.,

State v. Miranda, 274 Conn. 727, 734, 878 A.2d 1118

(2005).10

The majority fails to explain why ‘‘the most cogent

reasons and inescapable logic require’’ that we overturn

Mendillo; State v. Salamon, supra, 287 Conn. 519; or

why it simply believes that Mendillo was wrongly

decided. In overruling this court’s holding in Mendillo,

the majority destroys any semblance of stability in this

area of the law. For instance, insurers now cannot be

sure whether this court will further extend this cause of

action to stepchildren, a question the majority expressly

leaves unresolved, or otherfamily members. To account

for this uncertainty, insurers may raise premiums for

all insureds, which would be a rational response to the

unpredictability the majority has introduced into this

area of the law by overruling Mendillo, a case under

which insurers and insureds have operated for nearly

twenty years.

In sum, the question of whether to overturn Mendillo

and create a cause of action for the loss of parental

consortium rests on policy considerations that only the

legislature properly can evaluate. Moreover, the majority of other states that have addressed this issue have

declined, as we did in Mendillo, to recognize such a

cause of action. This court will now be only the second

state supreme court in the country to recognize this

cause of action in the absence of any legislative pronouncement supporting its creation. Finally, the principle of stare decisis dictates that we should adhere to

our holding in Mendillo. In overruling Mendillo, rather

than deferring to the legislature, the majority casts a

shadow of doubt over when and to what extent this

court will further expand the scope of loss of consortium claims.

For the foregoing reasons, I respectfully dissent.

1 The traditional nuclear family has become a minority in America. In fact,

presently, only 20 percent of households would be considered traditional

or nuclear families, that is, a husband and wife plus children. See J. Walter

Thompson Intelligence, ‘‘Meet the New Family’’ (September, 2014) pp. 6–7,

available at https://d3ftitl17j4lal.cloudfront.net/b49a88b0-5573-4347-80e8-

55300923190f-all documents.pdf (last visited September 21, 2015). Among

the alternative family forms are cohabiting couples, same-sex couples, single

parent households, and extended family (or multigenerational) households.

See J. Merrill, note, ‘‘Two Steps Behind: The Law’s Struggle To Keep Pace

with the Changing Dynamics of the American Family,’’ 2009 Utah L. Rev.

557, 558. These changing family structures make weighing public policies

regarding family concerns more difficult than ever, and such issues should

be left to the elected branches of government.

2

I acknowledge that the plaintiffs argue that the cause of action for loss

of parental consortium should include damages arising from their father’s

injuries sustained prior to his death and damages arising from his death.

However, that does not change the fact that the two causes of action cannot

be conflated. The majority rightly concludes that we cannot allow the latter

claim, and, therefore, I am concerned only with the former.

3 See Fla. Stat. Ann. § 768.0415 (West 2011); Iowa Code Ann. § 613.15

(West 1999); La. Civ. Code Ann. art. 2315 (B) (2008); R.I. Gen. Laws § 9-1-

41 (b) (2012); Hibpshman v. Prudhoe Bay Supply, Inc., 734 P.2d 991, 997

(Alaska 1987); Villareal v. Dept. of Transportation, 160 Ariz. 474, 477, 774

P.2d 213 (1989); Ferriter v. Daniel O’Connell’s Sons, Inc., 381 Mass. 507,
516, 413 N.E.2d 690 (1980); Berger v. Weber, 411 Mich. 1, 13, 17, 303 N.W.2d

424 (1981); Pence v. Fox, 248 Mont. 521, 527, 813 P.2d 429 (1991); Gallimore

v. Children’s Hospital Medical Center, 67 Ohio St. 3d 244, 255, 617 N.E.2d

1052 (1993); Williams v. Hook, 804 P.2d 1131, 1138 (Okla. 1990); Reagan v.

Vaughn, 804 S.W.2d 463, 467 (Tex. 1990), modified on other grounds, Texas

Supreme Court, Docket No. C-9548 (Tex. March 6, 1991); Hay v. Medical

Center Hospital, 145 Vt. 533, 545, 496 A.2d 939 (1985); Ueland v. Pengo

Hydra-Pull Corp., 103 Wn. 2d 131, 140, 691 P.2d 190 (1984); Belcher v. Goins,

184 W. Va. 395, 406, 400 S.E.2d 830 (1990); Theama v. Kenosha, 117 Wis.

2d 508, 527, 344 N.W.2d 513 (1984); Nulle v. Gillette-Campbell County Joint

Powers Fire Board, 797 P.2d 1171, 1176 (Wyo. 1990).

The majority notes that twenty jurisdictions recognize the cause of action

that it creates today. I do not agree with its characterization of the law in

Minnesota, New Mexico, and South Dakota.

The majority cites Lefto v. Hoggsbreath Enterprises, Inc., 567 N.W.2d 746

(Minn. App. 1997), aff’d, 581 N.W.2d 855 (Minn. 1998), to support its claim

that Minnesota recognizes a limited loss of parental consortium claim. In

Lefto, however, the Minnesota Supreme Court, which affirmed the decision

of the Minnesota Court of Appeals, did not determine that the child could

assert a claim for loss of parental consortium. See Lefto v. Hoggsbreath

Enterprises, Inc., 581 N.W.2d 855, 857–58 (Minn. 1998). Instead, that court

interpreted Minnesota’s dram shop law and concluded that the child in

question could recover damages under that law for injuries the defendant

caused to her mother’s fiance, with whom the mother and her daughter had

been cohabiting. Id., 856–58. The majority cannot seriously contend that

allowing recovery under a dram shop law is the same as recognizing a cause

of action for loss of parental consortium, even if it only claims that it is a

similar cause of action. Moreover, the Minnesota Supreme Court previously

had expressly rejected a claim for loss of parental consortium. Salin v.

Kloempken, 322 N.W.2d 736, 742 (Minn. 1982) (‘‘[w]e conclude . . . that

. . . a new cause of action on behalf of a child for the loss of parental

consortium should not be recognized’’).

Similarly, the majority cites a case decided by the New Mexico Court of

Appeals, Brenneman v. Board of Regents, 135 N.M. 68, 84 P.3d 685 (App.),

cert. denied, 135 N.M. 51, 84 P.3d 668 (2003). In Brenneman, as in the Lefto

case in Minnesota, the court was interpreting an unrelated statute, namely,

New Mexico’s Tort Claims Act. See id., 69. The court in Brenneman concluded: ‘‘The plain language of the [Tort Claims] Act, [the] cases interpreting

it, and its legislative history all indicate that loss of consortium damages

should be recoverable [there]under . . . .’’ Id., 72. That case says nothing

about allowing claims for loss of parental consortium that are brought

independently of the New Mexico Tort Claims Act. At best, it can be said

that the law in New Mexico is unclear; it certainly cannot be argued that

New Mexico has generally recognized a cause of action for the loss of

parental consortium.

With respect to South Dakota, the majority cites Zoss v. Dakota Truck

Underwriters, 590 N.W.2d 911 (S.D. 1999), a wrongful death case. See id.,

912. The majority is correct that South Dakota allows a child to ‘‘recover

[the] pecuniary value of [the] loss of society and companionship [of the

parent], which includes such things as protection, guidance, advice and

assistance . . . .’’ Footnote 9 of the majority opinion, quoting Zoss v. Dakota

Truck Underwriters, supra, 914. The point the majority fails to understand,

however, is that such recovery is limited to cases involving the wrongful

death of the parent. See Zoss v. Dakota Truck Underwriters, supra, 914. In

fact, the court in Zoss seemed to suggest that there is no claim for loss of

parental consortium when it defined consortium as ‘‘a right growing out of

the marital relationship . . . .’’ (Internal quotation marks omitted.) Id.

Although I cannot say with certainty that South Dakota has rejected a cause

of action for loss of parental consortium arising out of a parent’s nonfatal

injury, the majority certainly cannot claim that it has recognized such a

cause of action or a similar cause of action.

4 See Patterson v. Hays, 623 So. 2d 1142, 1146 (Ala. 1993); Lewis v.

Rowland, 287 Ark. 474, 478–79, 701 S.W.2d 122 (1985); Borer v. American

Airlines, Inc., 19 Cal. 3d 441, 451, 453, 563 P.2d 858, 138 Cal. Rptr. 302

(1977); Lee v. Dept. of Health, 718 P.2d 221, 233–34 (Colo. 1986); Mendillo

v. Board of Education, supra, 246 Conn. 461, 477; Washington v. Washington

Hospital Center, 579 A.2d 177, 179 n.1 (D.C. 1990); W.J. Bremer Co. v.

Graham, 169 Ga. App. 115, 116–17, 312 S.E.2d 806 (1983), cert. denied, 252

Ga. 36, 312 S.E.2d 787 (1984); Halberg v. Young, 41 Haw. 634, 646 (1957);

Green v. A. B. Hagglund & Soner, 634 F. Supp. 790, 796–97 (D. Idaho 1986);
Karagiannakos v. Gruber, 274 Ill. App. 3d 155, 158, 653 N.E.2d 932, appeal

denied, 164 Ill. 2d 565, 660 N.E.2d 1271 (1995); Dearborn Fabricating &

Engineering Corp. v. Wickham, 551 N.E.2d 1135, 1139 (Ind. 1990); Klaus

v. Fox Valleny Systems, Inc., 259 Kan. 522, 531, 912 P.2d 703 (1996); Lambert

v. Franklin Real Estate Co., 37 S.W.3d 770, 780 (Ky. App. 2000); Durepo v.

Fishman, 533 A.2d 264, 264–66 (Me. 1987); Gaver v. Harrant, 316 Md. 17,

32–33, 557 A.2d 210 (1989); Salin v. Kloempken, 322 N.W.2d 736, 742 (Minn.

1982); Thompson v. Love, 661 So. 2d 1131, 1135 (Miss. 1995); Powell v.

American Motors Corp., 834 S.W.2d 184, 191 (Mo. 1992); Guenther ex rel.

Guenther v. Stollberg, 242 Neb. 415, 421, 495 N.W.2d 286 (1993); General

Electric Co. v. Bush, 88 Nev. 360, 368, 498 P.2d 366 (1972); Harrington v.

Brooks Drugs, Inc., 148 N.H. 101, 104, 808 A.2d 532 (2002); Russell v. Salem

Transportation Co., 61 N.J. 502, 504, 506, 295 A.2d 862 (1972); DeAngelis

v. Lutheran Medical Center, 58 N.Y.2d 1053, 1055, 449 N.E.2d 406, 462

N.Y.S.2d 626 (1983); Vaughn v. Clarkson, 324 N.C. 108, 111, 376 S.E.2d 236

(1989); Hastings v. James River Aerie No. 2337-Fraternal Order of Eagles,

246 N.W.2d 747, 753 (N.D. 1976); Norwest v. Presbyterian Intercommunity

Hospital, 293 Or. 543, 563, 567, 652 P.2d 318 (1982); Steiner ex rel. Steiner

v. Bell Telephone Co., 358 Pa. Super. 505, 522, 517 A.2d 1348 (1986), aff’d,

518 Pa. 57, 540 A.2d 266 (1988); Taylor v. Medenica, 324 S.C. 200, 222, 479

S.E.2d 35 (1996); Taylor v. Beard, 104 S.W.3d 507, 511 (Tenn. 2003).

The majority cites a case from the United States District Court for the

District of Hawaii, namely, Marquardt v. United Airlines, Inc., 781 F. Supp.

1487 (D. Haw. 1992); see footnote 11 of the majority opinion; which surmises

that the Hawaii Supreme Court would overrule its earlier decision declining

to recognize a cause of action for the loss of parental consortium. See

Marquardt v. United Airlines, Inc., supra, 1492. Until the Hawaii Supreme

Court does so, however, the law in Hawaii is that no such cause of

action exists.

5

I, like the majority, have not found any cases or statutes concerning this

issue in Delaware, Utah, or Virginia, and, forthe reasons I stated in footnote 3

of this opinion, I find the law in New Mexico and South Dakota to be unclear.

6 See Fla. Stat. Ann. § 768.0415 (West 2011); La. Civ. Code Ann. art. 2315

(B) (2008); R.I. Gen. Laws § 9-1-41 (b) (2012); see also Iowa Code Ann.

§ 613.15 (West 1999) (allowing for recovery of lost value of services and

support of injured parent, but claim belongs to injured parent, not child).

The Iowa Supreme Court has declined to recognize a cause of action for

loss of parental consortium that can be brought independently by the child.

See Audubon-Exira Ready Mix, Inc. v. Illinois Central Gulf Railroad Co.,

335 N.W.2d 148, 152 (Iowa 1983). Instead, Iowa allows the injured parent

to recover for the lost value of services and support that the injured parent

would have provided to the child but for the injury. See Iowa Code Ann.

§ 613.15 (West 1999).

7 See Hibpshman v. Prudhoe Bay Supply, Inc., 734 P.2d 991, 994 (Alaska

1987); Villareal v. Dept. of Transportation, 160 Ariz. 474, 479, 774 P.2d 213

(1989); Ferriter v. Daniel O’Connell’s Sons, Inc., 381 Mass. 507, 515, 413

N.E.2d 690 (1980); Berger v. Weber, 411 Mich. 1, 13, 303 N.W.2d 424 (1981);

Pence v. Fox, 248 Mont. 521, 526–27, 813 P.2d 429 (1991); Gallimore v.

Children’s Hospital Medical Center, supra, 67 Ohio St. 3d 250–51; Williams

v. Hook, 804 P.2d 1131, 1136 (Okla. 1990); Reagan v. Vaughn, 804 S.W.2d

463, 465 (Tex. 1990), modified on other grounds, Texas Supreme Court,

Docket No. C-9548 (Tex. March 6, 1991); Hay v. Medical Center Hospital,

145 Vt. 533, 537, 496 A.2d 939 (1985); Ueland v. Pengo Hydra-Pull Corp.,

103 Wn. 2d 131, 134, 691 P.2d 190 (1984); Belcher v. Goins, 184 W. Va. 395,

403, 400 S.E.2d 830 (1990); Nulle v. Gillette-Campbell County Joint Powers

Fire Board, 797 P.2d 1171, 1172 (1990).

8 These are but two examples of similar relationships for which liability

under the majority’s newly created cause of action could ultimately exist.

Other possibilities include aunts and uncles and nieces and nephews, stepparents and stepchildren, foster parents and foster children, and siblings,

to name only a few more. In each of these relationships, it is conceivable

that the adult, although not the child’s natural or legal parent, stands in

loco parentis.

9 The majority pays mere lip service to the principle of stare decisis,

claiming that it may properly overrule Mendillo because, in Hopson v. St.

Mary’s Hospital, 176 Conn. 485, 494–96, 408 A.2d 260 (1979), we overruled

our earlier decision in Marri v. Stamford Street Railroad Co., 84 Conn. 9,

23–24, 78 A. 582 (1911), in which we declined to recognize a claim for loss

of spousal consortium. See footnote 16 of the majority opinion. The only

commonality between this case and Hopson, however, is that they both deal
with consortium claims. In Hopson, this court concluded that its decision

and reasoning in Marri were no longer persuasive because ‘‘a growing

majority of courts have come to recognize a right of action for loss of

consortium in either spouse. . . . The right of a husband to bring an action

for loss of consortium has long been acknowledged in a substantial majority

of the jurisdictions. The right of the wife . . . has now been recognized in

many jurisdictions.’’ (Citation omitted; footnote omitted.) Hopson v. St.

Mary’s Hospital, supra, 495. The conditions that existed in Hopson, however,

do not exist in the present case. As I discussed previously, the majority of

jurisdictions decline to recognize a claim for loss of parental consortium,

and, since our decision in Mendillo, no state has recognized such a claim.

Therefore, the logic that compelled the court in Hopson to overrule Marri

does not compel this court to overrule Mendillo in the present case.

10 The majority does not contend that our holding in Mendillo was clearly

wrong, nor could it. Indeed, Mendillo could not clearly have been wrong

because, when it was decided, more than one half of our sister states

had expressly declined to recognize a cause of action for loss of parental

consortium. See Mendillo v. Board of Education, supra, 246 Conn. 490–91.

Moreover, if Mendillo was clearly wrong, then, surely, the legislature would

have taken some action in the seventeen years since it was decided. For

instance, when this court decided in Craig v. Driscoll, supra, 262 Conn.

339–40, that the state’s Dram Shop Act did not preclude a common-law

negligence action against a purveyor of alcoholic beverages that serves

liquor to an intoxicated patron who subsequently injures a third party, the

legislature took only about four months to effectively overrule this court’s

holding in that case. See Public Acts 2003, No. 03-91, § 1.