Opinion
TOBRINER, Acting C. J. In Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382 [115 Cal.Rptr. 765, 525 P.2d 669], we held that a married person whose spouse had been injured by the negligence of a third party may maintain a cause of action for loss of “consortium.” We defined loss of “consortium” as the “loss of conjugal fellowship and sexual relations” (12 Cal.3d at p. 385), but ruled that the term included the loss of love, companionship, society, sexual relations, and household services. Our decision carefully avoided resolution of the question whether anyone [444]other than the spouse of a negligently injured person, such as a child or a parent, could maintain a cause of action analogous to that upheld in Rodriguez. We face that issue today: the present case presents a claim by nine children for the loss of the services, companionship, affection and guidance of their mother; the companion case of Baxter v. Superior Court, post, page 461 [ 138 Cal.Rptr. 315,563 P.2d 871] presents the claim of a mother and father for the loss of the companionship and affection of their 16-year-old son.
Claims for loss of consortium of parents or of children have come before our Courts of Appeal on four occasions since the date of the filing of Rodriguez. Two decisions have held that a child has no cause of action for loss of parental consortium. (Garza v. Kantor (1976) 54 Cal.App.3d 1025 [127 Cal.Rptr. 164]; Suter v. Leonard (1975) 45 Cal.App.3d 744 [120 Cal.Rptr. 110].) Two other cases have said that a parent can state a cause of action for loss of a child’s consortium. (Mobaldi v. Regents of University of California (1976) 55 Cal.App.3d 573, 586 [127 Cal.Rptr. 720]; Hair v. County of Monterey (1975) 45 Cal.App.3d 538, 545 [119 Cal.Rptr. 639] (dictum).) Unpersuaded of any legal distinction between a parent’s claim for loss of a child’s consortium and a child’s claim for loss of a parent’s consortium, we granted hearings in the instant case and in Baxter v. Superior Court in order to address generally the question whether to recognize a new cause of action for loss of consortium in a parent-child relationship.
Judicial recognition of a cause of action for loss of consortium, we believe, must be narrowly circumscribed. Loss of consortium is an intangible injury for which money damages do not afford an accurate measure or suitable recompense; recognition of a right to recover for such losses in the present context, moreover, may substantially increase the number of claims asserted in ordinary accident cases, the expense of settling or resolving such claims, and the ultimate liability of the defendants. Taking these considerations into account, we shall explain why we have concluded that the payment of damages to persons for the lost affection and society of a parent or child neither truly compensates for such loss nor justifies the social cost in attempting to do so. We perceive significant differences between the marital relationship and the parent-child relationship that support the limitation of a cause of action for loss of consortium to the marital situation; we shall therefore further elaborate our reasons for concluding that a child cannot maintain a cause of action for loss of parental consortium. In similar fashion we conclude in the companion case of Baxter v. Superior Court that a parent cannot maintain a cause of action for loss of a child’s consortium.
[445]Finally, we shall explain why we reject plaintiffs’ argument that because children can recover in a wrongful death action for the loss of the affection and society of their deceased parent, a denial of plaintiffs’ cause of action for the loss of consortium of their injured parent would deprive them of the equal protection of the laws.
Since this appeal arises following a trial court order sustaining a demurrer to plaintiffs’ pomplaint without leave to amend, we focus first on the specific allegations of plaintiffs’ complaint. Plaintiffs, the nine children of Patricia Borer, allege that on March 21, 1972, the cover on a lighting fixture at the American Airlines Terminal at Kennedy Airport fell and struck Patricia. Plaintiffs further assert that as a result of the physical injuries sustained by Patricia, each of them has been “deprived of the services, society, companionship, affection, tutelage, direction, guidance, instruction and aid in personality development, all with its accompanying psychological, educational and emotional detriment, by reason of Patricia Borer being unable to cariy on her usual duties of a mother.” The complaint sets forth causes of action based upon negligence, breach of warranty, and manufacture of a defective product; it names as defendants American Airlines, two companies which manufactured and assembled the lighting fixture, and various fictitious defendants. Each plaintiff seeks damages of $100,000.
Defendant American Airlines demurred to the complaint for failure to state a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) The trial court sustained the demurrer without leave to amend, and entered judgment dismissing the suit as to defendant American Airlines. Plaintiffs appealed from that judgment.
Our analysis of plaintiffs’ appeal begins with our decision in Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d 382. In holding that a spouse has a cause of action for loss of consortium, we considered the proffered argument that such a holding would logically require us to uphold an analogous cause of action in the parent-child context or in even more distant relationships; we rejected that contention.
Quoting decisions of other states on the above point, we stated on pages 403-404 that “Recognizing the traditional power of the courts to control the development of a judge-made rule of law, the court in Diaz v. Eli Lilly and Company (1973) supra, [364 Mass. 153] 302 N.E.2d 555, 563, stated: ‘Nor does it follow that if the husband-wife relationship is protected as here envisaged, identical protection must be afforded by analogy to other relationships from that of parent-child in a lengthy regress to that of [446]master-servant; courts will rather proceed from case to case with discerning caution.’ (Fn. omitted.) [V] Dismissing the same argument, the New Jersey court stated that The law has always been most solicitous of the husband and wife relationship, perhaps more so than the parent and child relationship. [Citation.] In any event, policy rather than logic is the determinative factor and, while persuasive arguments may be mustered in favor of the child’s claim (Prosser, supra, at p. 919), the reciprocal recognition of the wife’s claim may readily be rested on its own footing of equality and justice without any compulsion of going further.’ (Ekalo v. Constructive Serv. Corp. of Am (1965) supra, [46 N.J. 82] 215 A.2d 1, 7.)”
Rodriguez, thus, does not compel the conclusion that foreseeable injury to a legally recognized relationship necessarily postulates a cause of action; instead it clearly warns that social policy must at some point intervene to delimit liability. Patricia Borer, for example, foreseeably has not only a husband (who has a cause of action under Rodriguez) and the children who sue here, but also parents whose right of action depends upon our decision in the companion case of Baxter v. Superior Court; foreseeably, likewise, she has brothers, sisters, cousins, inlaws, friends, colleagues, and other acquaintances who will be deprived of her companionship. No one suggests that all such persons possess a right of action for loss of Patricia’s consortium; all agree that somewhere a line must be drawn. As stated by Judge Breitel in Tobin v. Grossman (1969) 24 N.Y.2d 609, 619 [301 N.Y.S.2d 554, 249 N.E.2d 419]; “Eveiy injury has ramifying consequencesf like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree.”
. The decision whether to limit liability for loss of consortium by denying a cause of action in the parent-child context, or to permit that action but deny any claim based upon more remote relationships, is thus a question of policy. As explained by Justice Fleming in Suter v. Leonard (1975) 45 Cal.App.3d 744, 746 [120 Cal.Rptr. 110]: “Plaintiff’s claim, viewed in the abstract and divorced from its surroundings, carries both logical and sympathetic appeal. . . . Certain aspects of spousal relationship are similar to those of the parent-child relationship, and there can be little question of the reality of the loss suffered by a child deprived of the society and care of its parent. Nevertheless our decision must take into account considerations in addition to logical symmetry and sympathetic appeal. . . . [N]ot every loss can be made compensable in money damages, and legal causation must terminate somewhere. In delineating the extent of a tortfeasor’s responsibility for damages under the general rule of tort liability (Civ. Code, § 1714), the courts must [447]locate the line between liability and nonliability at some point, a decision which is essentially political.”
In the first instance, strong policy reasons argue against extension of liability to loss of consortium of the parent-child relationship. Loss of consortium is an intangible, nonpecuniary loss; monetary compensation will not enable plaintiffs to regain the companionship and guidance of a mother; it will simply establish a fund so that upon reaching adulthood, when plaintiffs will be less in need of maternal guidance, they will be unusually wealthy men and women. To say that plaintiffs have been “compensated” for their loss is superficial; in reality they have suffered a loss for which they can never be compensated; they have obtained, instead, a future benefit essentially unrelated to that loss.
We cannot ignore the social burden of providing damages for loss of parental consortium merely because the money to pay such awards comes initially from the “negligent” defendant or his insurer. Realistically the burden of payment of awards for loss of consortium.must be borne by the public generally in increased insurance premiums or, otherwise, in the enhanced danger that accrues from the greater number of people who may choose to go without any insurance. We must also take into account the cost of administration of a system to determine and pay consortium awards; since virtually every serious injury to a parent would engender a claim for loss of consortium on behalf of each of his or her children, the expense of settling or litigating such claims would be sizable.
Plaintiffs point out that courts have permitted recovery of monetary damages for intangible loss in allowing awards for pain and suffering in negligence cases and in sanctioning recovery for loss of marital consortium. The question before us in this case, however, pivots on whether we should recognize a wholly new cause of action, unsupported by statute or precedent; in this context the inadequacy of monetary damages to make whole the loss suffered, considered in light of the social cost of paying such awards, constitutes a strong reason for refusing to recognize the asserted claim. To avoid misunderstanding, we point out that our decision to refuse to recognize a cause of action for parental consortium does not remotely suggest the rejection of recovery for intangible loss; each claim must be judged on its own merits, and in many cases the involved statutes, precedents, or policy will induce acceptance of the asserted cause of action.
[448]A second reason for rejecting a cause of action for loss of parental consortium is that, because of its intangible character, damages for such a loss are very difficult to measure. Plaintiffs here have prayed for $100,000 each; yet by what standard could we determine that an award of $10,000 was inadequate, or one of $500,000 excessive? Difficulty in defining and quantifying damages leads in turn to risk of double recoveiy: 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. Thus as observed by the New Jersey Supreme Court in Russell v. Salem Transportation Company (1972) 61 N.J. 502 [295 A.2d 862, 864, 69 A.L.R.3d 522]: “The asserted social need for the disputed cause of action [a child’s action for loss of parental consortium] 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.”
Plaintiffs point out that similar policy arguments could be, and to some extent were, raised in Rodriguez, and that our decision to uphold the wife’s action for loss of consortium rejected those arguments. We do not, however, read Rodriguez as holding that arguments based upon the intangible character of damages and the difficulty of measuring such damages do not merit consideration. Such a holding would imply an indefinite extension of liability for loss of consortium to all foreseeable relationships, a proposition Rodriguez plainly repudiates.
Rodriguez, then, holds no more than that in the context of a spousal relationship, the policy arguments against liability do not suffice to justify a holding denying a cause of action. Plaintiffs contend, however, that no adequate ground exists to distinguish a cause of action for loss of spousal consortium from one for loss of parental consortium. We reject the contention for three reasons.
First, as Rodriguez pointed out, the spousal action for loss of consortium rests in large part on the “impairment or destruction of the sexual life of the couple.” (12 Cal.3d 382, 405.) No similar element of damage appears in a child’s suit for loss of consortium.
Second, actions by children for loss of parental consortium create problems of multiplication of actions and damages not present in the [449]spousal context. As pointed out by the New Jersey Supreme Court in Russell v. Salem Transportation Company, supra, 295 A.2d 862, 864:
“If the claim were allowed there would be a substantial accretion of liability against the tortfeasor arising out of a single transaction (typically the negligent operation of an automobile). Whereas the assertion of a spouse’s demand for loss of consortium involves the joining of only a single companion claim in the action with that of the injured person, the right here debated would entail adding as many companion claims as the injured parent had minor children, each such claim entitled to separate appraisal and award. The defendant’s burden would be further enlarged if the claims were founded upon injuries to both parents. Magnification of damage awards to a single family derived from a single accident might well become a serious problem to a particular defendant as well as in terms of the total cost of such enhanced awards to the insured community as a whole.”
The instant case illustrates the point. Patricia Borer has nine children, each of whom would possess his own independent right of action for loss of consortium. Even in the context of a consolidated action, the assertion of nine independent causes of action for the children in addition to the father’s claim for loss of consortium and the mother’s suit for ordinary tort damages, demonstrates the extent to which recognition of plaintiffs’ asserted cause of action will multiply the tort liability of the defendant.
Finally, the proposition that a spouse has a cause of action for loss of consortium, but that a child does not, finds overwhelming approval in the decisions of other jurisdictions. Over 30 states, a clear majority of those who have decided the question, now permit a spousal suit for loss of consortium.1 No state permits a child to sue for loss of parental consortium. That claim has been presented, at latest count, to 18 jurisdictions, and rejected by all of them.2
[450]We reject, finally, plaintiffs’ claim that denial of a cause of action for loss of parental consortium is inconsistent with the principles of tort law laid down in prior decisions of this court. Plaintiffs refer to Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496], which stated some of the considerations to be balanced in deciding whether to deny a cause of action for injury resulting from negligence, and to Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434 [131 Cal.Rptr. 14, 551 P.2d 334], which stated that the most important of these considerations was foreseeability. Neither Rowland nor Tarasoff, however, involved the creation of a new cause of action for solely intangible damages, attended with problems of multiplication of claims and liability. These considerations, which were not presented or considered in the prior cases; form the basis of our conclusion that we should reject plaintiffs’ claim.
Plaintiffs place particular emphasis on Dillon v. Legg (1968) 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316], which upheld a cause of action for injuries flowing from a mother’s emotional trauma in witnessing the death of her child. We suggested that the cause of action should be sustained whenever the injury was “reasonably foreseeable” (p. 741), and that one factor to be considered was “whether plaintiff and the victim were closely related.” (Ibid.) Plaintiffs urge that we follow that paradigm for decision of the instant case.
In Dillon, however, we carefully limited our ruling to a case in which the plaintiff suffered physical injury. (68 Cal.2d at p. 740.) Subsequent decisions, interpreting our holding in Dillon, have refused to recognize a cause of action in a.case in which the plaintiff suffered no physical injury himself as a result of witnessing the infliction of injury upon a family member. (See Krouse v. Graham, ante, p. 59 at pp. 77-78 [137 Cal.App. 863,562 P.2d 1022]; Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892 fn. 1 [103 Cal.Rptr. 856, 500 P.2d 880]; Hair v. County of Monterey, supra, 45 Cal.App.3d 538, 542.) Thus Dillon and subsequent authority support our decision in this case to deny a cause of action founded upon purely intangible injury.
[451]We therefore conclude that we should not recognize a cause of action by a child for loss of parental consortium.3 (3) Plaintiffs contend, however, that such a conclusion would distinguish between the rights of the child in the present context and the rights afforded him in a wrongful death action, without any rational basis for the distinction in contraventión of the equal protection of the laws.
Plaintiffs point out that section 377 of the Code of Civil Procedure authorizes an action for wrongful death by the heirs of the victim; judicial decisions interpreting this section permit recovery by children of the value of the deceased’s affection and society. (See Krouse v. Graham, supra, ante, at pp. 67-68 and cases there cited.) Plaintiffs contend that no rational basis supports a ruling that permits the children of a deceased parent to recover the value of lost affection and companionship, but denies the children of a seriously disabled parent a similar cause of action.
Plaintiffs’ contention in essence asserts that Code of Civil Procedure section 377 is unconstitutionally underinclusive; that the distinction it draws between the class of children whose parent suffers death and those whose parent suffers disability cannot constitutionally be supported. Our inquiry, consequently, condenses into the question whether the classification rests “upon some ground of difference having a fair and substantial relation to the object of the legislation.” {Reed v. Reed (1971) 404 U.S. 71, 75-76 [30 L.Ed.2d 225, 229, 92 S.Ct. 251]; Royster Guano Co. v. Virginia (1920) 253 U.S. 412, 415 [64 L.Ed. 989, 990-991, 40 S.Ct. 560]; Brown v. Merlo (1973) 8 Cal.3d 855, 861 [106 Cal.Rptr. 388, 506 P.2d 212, 66 A.L.R.3d 505].)
We perceive two significant distinctions between the child whose parent is killed and one whose parent is disabled, both of which flow from the fact that in the latter case the living victim retains his or her own cause of action. The first distinction relates to the historical purpose of the wrongful death statutes. By 1846, the date of the enactment of the first wrongful death statute, the common law courts had settled that the heirs of a deceased victim could not bring a cause of action against the [452]tortfeasor. (See 1 Speiser, Recovery for Wrongful Death (2d ed. 1975) §§ 1.1,1.2.) “The result was that it was more profitable for the defendant to kill the plaintiff than to scratch him, and that the most grievous of all injuries left the bereaved family of the victim, who frequently were destitute, without a remedy.” (Prosser, Torts (4th ed. 1971) p. 902.) This loophole in the law curtailed the deterrent function of tort recovery, providing to tortfeasors a substantial incentive to finish off their victims. The wrongful death statutes thus met an obvious logical and social need.
Similar policy reasons led the courts to permit the bereaved to recover for the loss of the affection and society of the deceased. As stated in Krouse v. Graham, “if damages truly were limited to ‘pecuniary’ loss, recovery frequently would be barred by the heirs’ inability to prove such loss. The services of children, elderly parents, or nonworking spouses often do not result in measurable net income to the family unit, yet unquestionably the death of such a person represents a substantial ‘injuiy’ to the family.” (Ante, at p. 68.) Recovery for loss of affection and society in a wrongful death action thus fulfills a deeply felt social belief that a tortfeasor who negligently kills someone should not escape liability completely, no matter how unproductive his victim.
A suit for loss of consortium of a disabled parent presents a wholly different picture. Here the tortfeasor cannot escape with impunity, for the immediate victim of his tort retains a cause of action for the injuries inflicted. The claim by the child in this setting is not essential to prevent the tortfeasor from totally escaping liability.
Secondly, the wrongful death action serves as the only means by which the family unit can recover compensation for the loss of parental care and services in the case of the wrongful death of the parent. While the parent lives, however, “the tangible aspects of the child’s loss can be compensated in the parent’s own cause of action. As put by Stainback, J., in Halberg v. Young, supra, 41 Hawaii 634, 640. . ., ‘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 such inability, if any, to properly care for his children, and thus the parent’s ability to cariy out his duty to support and maintain the child has not, in a legal sense, been destroyed or impaired by the injury to him.’ ” (Suter v. Leonard, supra, 45 Cal.App.3d 744, 748.)
We conclude that the distinction between the award of damages for loss of affection and society to a child whose parent has been tortiously killed, and the denial of such damages to a child whose parent has been [453]disabled, rests upon a rational basis. Plaintiffs’ constitutional argument therefore fails.
In summary, we do not doubt the reality or the magnitude of the injury suffered by plaintiffs. We are keenly aware of the need of children for the love, affection, society and guidance of their parents; any injuiy which diminishes the ability of a parent to meet these needs is plainly a family tragedy, harming all members of that community. We conclude, however, that taking into account all considerations which bear on this question, including the inadequacy of monetary compensation to alleviate that tragedy, the difficulty of measuring damages, and the danger of imposing extended and disproportionate liability, we should not recognize a nonstatutory cause of action for the loss of parental consortium.
The judgment is affirmed.
Clark, J., Richardson, J., Sullivan, J.,* and Wright, J.,† concurred.
See listing in Love, Tortious Interference with the Parent-Child Relationship: Loss of an Injured Person’s Society and Companionship (1976) 51 Ind. L.J. 590, 596 footnote 20.
The California Court of Appeal decisions that reject a child’s suit for loss of parental consortium are Garza v. Kantor, supra, 54 Cal.App.3d 1025 and Suter v. Leonard, supra, 45 Cal.App.3d 744. Decisions of other jurisdictions include: Pleasant v. Washington Sand & Gravel Co. (D.C. Cir. 1958) 262 F.2d 471 [104 App.D.C. 374]; Early v. United States (9th Cir. 1973) 474 F.2d 756 (Alaska law); Jeune v. Del E. Webb Constr. Co. (1954) 77 Ariz. 226 [269 P.2d 723]; Turner v. Atlantic Coast Line R. Co. (D. Ga. 1958) 159 F. Supp. 590 (South Carolina law); Halberg v. Young (1957) 41 Hawaii 634 [59 A.L.R.2d 445]; Hankins v. Derby (Iowa 1973) 211 N.W.2d 581; Hoffman v. Dautel (1962) 189 Kan. 165 [368 P.2d 57]; Sabatier v. Travelers Ins. Co. (La.App. 1966) 184 So.2d 594; Feneff v. New York C. & H.R.R. Co. (1909) 203 Mass. 278 [89 N.E. 436]; Hayrynen v. White Pine [450]Copper Co. (1968) 9 Mich.App. 452 [157 N.W.2d 502]; Miller v. Monsen (1949) 228 Minn. 400 [37 N.W.2d 543]; Stout v. Kansas City Terminal R. Co. (1913) 172 Mo.App. 113 [157 S.W. 1019]; General Electric Co. v. Bush (1972) 88 Nev. 360 [498 P.2d 366]; Russell v. Salem Transportation Co. (1972) 61 N.J. 502 [295 A.2d 862, 69 A.L.R.3d 522]; Duhan v. Milanowski (1973) 75 Misc.2d 1078 [348 N.Y.S.2d 696]; Gibson v. Johnston (1956) 75 Ohio L.Abs. 413 [144 N.E.2d 310]; Erhardt v. Havens, Inc. (1958) 53 Wn.2d 103 [330 P.2d 1010]; see generally Annot. (1969) 69 A.L.R3d 528.
The considerations which lead us to reject a cause of action for negligent injury to consortium in a parent-child context do not bar an action for intentional interference with parental consortium. An action for intentional interference with consortium, recognized by precedent in California (see Rosefield v. Rose fie Id (1963) 221 Cal.App.2d 431 [34 Cal.Rptr. 479]) is a relatively unusual tort that presents no danger of multiplication of claims or damages. The ruling, moreover, may serve to deter child stealing and similar antisocial conduct.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
Retired Chief Justice of California sitting under assignment by the Acting Chairman of the Judicial Council.