Borer v. American Airlines, Inc.
19 Cal. 3d 441, 138 Cal. Rptr. 302, 563 P.2d 858 (1977)
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Rule of Law:
A child does not have a cause of action for loss of parental consortium when a parent is negligently injured but not killed, based on public policy considerations that prioritize limiting the social costs and multiplication of claims associated with such intangible injuries.
Facts:
- Patricia Borer was the mother of nine children.
- On March 21, 1972, a cover from a lighting fixture fell from the ceiling of the American Airlines terminal at Kennedy Airport, striking Patricia Borer.
- As a result of the incident, Patricia Borer sustained serious physical injuries.
- Due to her injuries, Patricia Borer was rendered unable to provide her children with her customary services, society, companionship, affection, and guidance.
Procedural Posture:
- The nine children of Patricia Borer (plaintiffs) filed a lawsuit in a California trial court against American Airlines and other defendants.
- The complaint alleged causes of action for loss of parental consortium based on theories of negligence, breach of warranty, and defective product.
- Defendant American Airlines filed a demurrer to the complaint, asserting that it failed to state a valid cause of action under California law.
- The trial court sustained the demurrer without leave to amend and entered a judgment of dismissal in favor of American Airlines.
- The plaintiffs (appellants) appealed the dismissal, and the California Supreme Court granted a hearing.
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Issue:
Does a child have a cognizable cause of action for loss of parental consortium, including the loss of society, companionship, and affection, resulting from a third party's negligent injury to their parent?
Opinions:
Majority - Tobriner, Acting C. J.
No. A child does not have a cause of action for loss of parental consortium for negligent injury to a parent. Recognizing such a claim is a question of social policy, and strong policy reasons weigh against its creation. First, loss of consortium is an intangible, nonpecuniary loss for which monetary damages are an inadequate remedy and do not truly compensate the victim. Second, recognizing the claim would impose a significant social burden through increased litigation and insurance costs, as virtually every serious parental injury would lead to multiple claims. Third, damages are difficult to measure, leading to a risk of double recovery, as the parent's own personal injury award often implicitly accounts for their diminished ability to care for their children. The court distinguished this from spousal consortium, which is unique due to the sexual relationship and the fact that it only creates a single additional claim, not a multiplicity of claims from several children. The court also rejected an equal protection challenge, differentiating this from wrongful death actions where the child's claim is necessary to prevent a tortfeasor from escaping liability completely.
Dissenting - Mosk, J.
Yes. A child should have a cause of action for loss of parental consortium. The majority's policy arguments against recognizing the claim—such as the intangible nature of the loss, the difficulty in measuring damages, and the risk of double recovery—were all expressly considered and rejected by this court in Rodriguez v. Bethlehem Steel Corp., which established spousal consortium. The law routinely compensates for intangible harms like pain and suffering. The distinction between spousal and parental consortium is unconvincing, as the nonsexual aspects of companionship and moral support are equally vital. Furthermore, the majority's fear of a 'multiplication of actions' is statistically exaggerated, as the nine-child family in this case is an anomaly, and recognizing the claim would have a lesser overall impact than recognizing spousal claims. The court should be guided by humanitarian values and extend protection to this class of victims rather than arbitrarily drawing a line to limit tortfeasor liability.
Analysis:
This decision establishes a significant boundary on liability for intangible, relational harms in tort law. By refusing to extend the cause of action for loss of consortium beyond the marital relationship, the court prioritized policy concerns—limiting litigation, controlling social costs, and avoiding a 'slippery slope' of liability—over the logical extension of tort principles that compensate for foreseeable harm. This case serves as a key example of judicial line-drawing, signaling that foreseeability of harm alone is not sufficient to create a new duty or cause of action, especially for non-pecuniary losses. Future courts will cite this case to resist creating new claims for emotional or relational damages for more remote family members or friends.
