William David REAGAN, et al., Petitioners, v. Lester VAUGHN, et al., Respondents, 804 S.W.2d 463

OPINION GONZALEZ, Justice. In this case, we are presented with the issue of whether a child has a right to recover damages for loss of consortium and mental anguish when a parent is injured but not killed by the tortious conduct of a third party. The court of appeals, stating that it did not have the authority to recognize such a cause of action, modified the judgment of the trial court by deleting the award of damages for loss of parental consortium. The judgment was affirmed in all other respects. 784 S.W.2d 88.

We reverse that portion of the court of appeals’ judgment deleting the damages awarded to Julia Reagan for lost parental consortium and otherwise affirm. I. FACTS David Reagan was involved in a fight with another patron in the parking lot of K-Jacs Saloon in Pasadena, Texas. During the course of the fight, the manager of the bar, Vaughn, struck Reagan on the head with a baseball bat. Reagan suffered a severe brain injury and now functions at the level of a six- or seven-year-old child. Reagan and his minor daughter, Julia, sued Vaughn as well as the owners of K-Jacs, Keith Nichols and Ernest Rosenovac.

The jury found that Vaughn, Nichols, and Rose-novac were each 20% negligent and that Reagan was 40% negligent. The jury awarded damages in the amount of $2,432,-000 to Reagan and $405,000 to Julia. ($200,000 for loss of “parental care, nurture and guidance:” $25,000 for mental anguish in the past and $180,000 for mental anguish in the future). The trial court rendered judgment in conformity with the verdict. II. PRIOR DECISIONS This court has never addressed the issue of whether a child may recover damages for the loss of parental companionship, love, and society when a parent is injured.

The courts of appeals of this state that have addressed the issue have refused to allow recovery of such damages on the grounds that only this court or the legislature have the authority to recognize such a cause of action. See Ramos v. Champlin Petroleum Co., 750 S.W.2d 873, 878 (Tex.App.-Corpus Christi 1988, writ denied); Graham v. Ford Motor Co., 721 S.W.2d 554, 555 (Tex.App.-Tyler 1986, no writ); Hughes Drilling Fluids, Inc. v.

Eubanks, 729 S.W.2d 759, 762 (Tex.App.-Houston [14th Dist.] 1986), writ granted, judgment set aside and cause remanded for consideration of parties’ settlement agreement, 742 S.W.2d 275 (Tex.1987); Jannette v. Deprez, 701 S.W.2d 56, 61 (Tex.App.-Dallas 1985, writ ref’d n.r.e.); Bennight v. Western Auto Supply Co., 670 S.W.2d 373, 379-80 (Tex.App.-Austin 1984, writ ref'd n.r.e.). The Fifth Circuit has concluded that no such cause of action exists in Texas. In re Air Crash at Dallas/Fort Worth Airport on August 2, 1985, 856 F.2d 28, 29 (5th Cir.1988). In Sanchez v.

Schindler, we stated that “injuries to the familial relationship are significant injuries and are worthy of compensation.” 651 S.W.2d 249, 252 (Tex.1983); see also Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 551 (Tex.1985). Sanchez established that a parent has the right to recover damages for the loss of the companionship and society re-suiting from the death of a child. Sanchez, 651 S.W.2d at 254. Cavnar established that a child has the right to recover damages for the loss of companionship and society resulting from the death of a parent. Cavnar, 696 S.W.2d at 551. Both Sanchez and Cavnar involved

interpretation of the Texas Wrongful Death Act. Tex.Civ.Prac. & Rem.Code Ann. §§ 71.001-71.011 (Vernon 1986). In the present case, Reagan was not killed; thus our analysis does not include

interpretation of the wrongful death statute. Rather, we must decide whether, given our previous recognition of the significance of injuries to the familial relationship, this court should recognize a common law cause of action for loss of consortium damages that result from injury to a parent. III. SHOULD THE PARENT-CHILD RELATIONSHIP BE PROTECTED? “The common law is not frozen or stagnant, but evolving, and it is the duty of this court to recognize the evolution.” El Chico Corp. v.

Poole, 732 S.W.2d 306, 309-10 (Tex.1987). “The law is not static; and the courts, whenever reason and equity demand, have been the primary instruments for changing the common law through a continual re-evaluation of common law concepts in light of current conditions.” Whittlesey, 572 S.W.2d at 668. We fashion our analysis after that in Whittlesey and inquire whether the parent-child relationship in our modern society is “as worthy of protection from negligent invasion as are other legally protected interests.” Id.

In Sanchez, we recognized that the death of a child inflicts upon his parents a loss of love, advice, comfort, companionship and society. Sanchez, 651 S.W.2d at 251. Likewise, in Cavnar we held that a child suffers equivalent losses from the death of a parent. Cavnar, 696 S.W.2d at 551. And in Whittlesey, we acknowledged that nonfatal injury to a spouse can result in a real, direct, and personal loss to the other spouse. 572 S.W.2d at 667. We would be hard pressed to say that a serious, permanent and disabling injury to a parent does not potentially visit upon the child an equally serious deprivation.

In the present case, Julia Reagan has been deprived of essentially any opportunity for further parent-child exchange with her father. A child faced with Julia’s circumstances can no longer experience the joy of shared experiences with her parent, and she is denied the care, guidance, love, and protection ordinarily provided by her parent. There is no principled reason to accord the parent-child relationship second class status: While all family members enjoy a mutual interest in consortium, the parent-child relationship is undeniably unique and the wellspring from which other family relationships derive.

It is the parent-child relationship which most deserves protection and which, in fact, has received judicial protection in the past, (citations omitted). The loss of a parent’s love, care, companionship, and guidance can severely impact a child’s development and have a major influence on a child’s welfare and personality throughout life. Villareal v. State, 160 Ariz. 474, 774 P.2d 213, 217 (1989). The obvious and unquestionable significance of the parent-child relationship compels our recognition of a cause of action for loss of parental consortium.

Respondents have suggested that recognition of this cause of action will somehow have the snowball effect of leading to recognition of actions in favor of siblings, grandparents, close friends, and so on. We have little difficulty limiting recovery to the parent-child relationship. We recognize, as did the Wisconsin Supreme Court, that the two relationships likely to be most severely affected by a negligent injury to a person are the husband and wife relationship and that of the parent and child: The distinction between the interests of children and those of other relatives is rational and easily applied.

Most children are dependent on their parents for emotional sustenance. This is rarely the case with more remote relatives. Thus, by limiting the plaintiffs in the consortium action to the victim's children, the courts would ensure that the losses compensated would be both real and severe. Theama, 344 N.W.2d at 521.

Consistent with our prior recognition that adult children may recover for the wrongful death of a parent, we decline to limit the right of recovery under this cause of action to minor children. “Although minors are the group most likely to suffer real harm due to a disruption of the parent-child relationship, we leave this to the jury to consider in fixing damages.” Ueland, 691 P.2d at 195; see also Audobon-Exira Ready Mix, Inc. v. Illinois Cent.

Gulf Co., 335 N.W.2d 148, 152 (Iowa 1983) (“even adult and married children have the right to expect the benefit of good parental advice and guidance”) (citing Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632, 665 (Iowa 1969)). IV. SHOULD RECOVERY INCLUDE DAMAGES FOR MENTAL ANGUISH? Respondents assert that the jury’s award of mental anguish damages to Julia violates Freeman v. City of Pasadena, in which we held that a stepfather who was not located at or near the scene of an accident involving injury to his stepsons could not recover for negligent infliction of mental anguish. 744 S.W.2d 923 (Tex.1988).

A claim for negligent infliction of mental anguish is separate and distinct from a child’s claim for loss of parental consortium and loss of consortium does not include an element of mental anguish. McGovern v. Williams, 741 S.W.2d 373, 374 (Tex.1987); Moore v. Lillebo, 722 S.W.2d 683, 687-88 (Tex.1986). A cause of action for loss of consortium is derivative of the parent’s claim for personal injuries. See Whittlesey, 572 S.W.2d at 667.

In order to recover, the child must prove that the defendant is liable for the personal injuries suffered by her parent, and any defense that tends to constrict or exclude the defendant’s liability to the injured parent will have the same effect on the child’s consortium action. See Reed Tool Co. v. Copelin, 610 S.W.2d 736, 739 (Tex.1981).

On the other hand, a claim for negligent infliction of mental anguish that is not based upon the wrongful death statute requires that the plaintiff prove that he or she was, among other things, located at or near the scene of the accident, and that the mental anguish resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the incident, as contrasted with learning of the accident from others after the occurrence. Freeman, 744 S.W.2d at 923-24. Julia has not met either of these requirements and therefore may not recover for mental anguish. V.

CONCLUSION We hold that children may recover for loss of consortium when a third party causes serious, permanent, and disabling injuries to their parent. In order to successfully maintain a claim for loss of parental consortium resulting from injury to the parent-child relationship, the plaintiff must show that the defendant physically injured the child’s parent in a manner that would subject the defendant to liability. The child may recover for such non-pecuniary damages as loss of the parent’s love, affection, protection, emotional support, services, companionship, care, and society.

Factors that the jury may consider in determining the amount of damages include, but are not limited to, the severity of the injury to the parent and its actual effect upon the parent-child relationship, the child’s age, the nature of the child’s relationship with the parent, the child’s emotional and physical characteristics, and whether other consortium giving relationships are available to the child. See Villareal, 774 P.2d at 220-21. Julia Reagan adduced legally sufficient evidence to sustain her claim for lost parental consortium.

We therefore reverse that portion of the court of appeals judgment deleting $200,000 damages awarded to Julia for loss of parental consortium and render judgment for Julia in this amount. In all other respects, the judgment of the court of appeals is affirmed. . "The phrase 'loss of consortium’ is more accurately described as an element of damage rather than a cause of action. But courts have so frequently used the phrase to denote those actions in which loss of consortium is the major element of damage that ‘loss of consortium’ has come to be referred to as a cause of action.” Whittlesey v.

Miller, 572 S.W.2d 665, 666 (Tex.1978). . Julia asserts that a cause of action for lost parental consortium was recognized in Salinas v. Fort Worth Cab & Baggage Co., Inc., 725 S.W.2d 701 (Tex.1987). In Salinas we were concerned only with the court of appeals' erroneous finding of no evidence to support the jury’s actual damages findings. We were not presented with and did not address the existence of a cause of action for lost parental consortium. . We have also recognized a cause of action for lost consortium between spouses where the spouse is injured but not killed. Whittlesey, 572 S.W.2d at 668. .

The following courts have recognized a cause of action for loss of parental consortium: Hibpshman v. Prudhoe Bay Supply, Inc., 734 P.2d 991 (Alaska 1987); Villareal v. State, 160 Ariz. 474, 774 P.2d 213 (1989); Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981), modified by Audubon-Exira Ready Mix, Inc. v. Illinois Cent. Gulf R.R. Co., 335 N.W.2d 148 (Iowa 1983); Ferriter v. Daniel O’Connell’s Sons, Inc., 381 Mass. 413 N.E.2d 690 (1980); Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (1981); Hay v. Medical Center Hosp., 145 Vt. 533, 496 A.2d 939 (1985); Ueland v.

Reynolds Metals Co., 103 Wash.2d 131, 691 P.2d 190 (1984); Theama v. City of Kenosha, 117 Wis.2d 508, 344 N.W.2d 513 (1984); Nulle v. Gillette-Campbell County Joint Powers Fire Bd., 797 P.2d 1171 (Wyo.1990). It is argued that because a majority of the states do not recognize this cause of action, we should follow suit. "[Tjhat is no sufficient reason why an action should not be sustained.” Hill v. Kimball, 76 Tex. 210, 13 S.W. 59, 59 (1890). This observation remains valid today. Commentators generally favor recognition of a cause of action for loss of parental consortium. See W.

Prosser, The Law of Torts § 123, at 896 (4th ed. 1971); W. Keeton, D. Dobbs, R. Keeton & D.

Owen, Prosser and Keeton on the Law of Torts § 125, at 936 (5th ed. 1984); Harper, James & Gray, The Law of Torts § 8.8 (May 1988 Supp.); Pound, Individual Interests in the Domestic Relations, 14 Mich.L.Rev. 177 (1916); see also Love, Tortious Interference with the Parent-Child Relationship; Loss of an Injured Persons’ Society and Companionship, 51 Ind.LJ. 590 (1976); Petrilli, A Child's Right to Collect for Parental Consortium Where Parent is Seriously Injured, 26 J.Fam.L. 318 (1987-88); Comment, The Chid’s Right to Parental Consortium, 14 J.

Marshall L.Rev. 341 (1981); Comment, The Child’s Claim for Loss of Consortium Damages; A Logical and Sympathetic Appeal, 13 San Diego L.Rev. 231 (1975); Comment, The Child’s Cause of Action for Loss of Consortium, 5 San Fern.V.L. Rev. 449 (1977); Comment, Actions for Loss of Consortium in Washington: The Children are Still Crying, 56 Wash.L.Rev. 487 (1981); Note, The Child's Right to Sue for Loss of a Parent's Love, Care, and Companionship Caused by Tor-tious Injury to the Parent, 56 B.U.L.Rev. 723 (1976); Note, Loss of Parental Consortium, 8 J.JuvJL. 457, 462-63 (1984); Note, Ipcock v.

Gilmore: North Carolina’s Refi^al to Extend Recovery to the Infant Secondary Tort Victim, 66 N.C. L.Rev. 1337 (1988); Note, Torts — Loss of Consortium — Right of a Child to a Cause of Action for Loss of Society and Companionship When the Parent is Tortiously Injured, 28 Wayne L.Rev. 1877 (1982). The Restatement (Second) of Torts declares that the action should not be recognized. Restatement (Second) of Torts § 707A (1977). But cf. Norwest v. Presbyterian Intercommunity Hosp., 652 P.2d 318, 319-20 (Or.1982) (explaining that this

section of the Restatement had less than whole-hearted support from the drafters). . "This is surely a genuine injury, and a serious one, which has received a great deal more sympathy from the legal writers than from the judges.” W. Prosser, The Law of Torts § 125, p. 896 (4th ed. 1971); see also Berger v. Weber, 303 N.W.2d 424, 427 (Mich.1981) (“Courts, law review commentators, and treatise writers all recognize that the child suffers a genuine loss”). . See Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex.1986).