Campos v. Coleman

The named plaintiff, Gregoria Campos, in her individual capacity and in her capacity as administratrix of the estate of her late husband, Jose Mauricio Campos (decedent), and the Campos’ three children, Mauricio Campos, Jose Ernesto Campos and Jose Eduardo Campos(Campos children),brought this action against the defendants, Robert E. Coleman and LQ Management, LLC (LQ Management).2 The plaintiffs alleged in their complaint that Coleman negligently had caused the decedent’s death and included claims for the Campos children’s loss of parental consortium.3 The defendants filed a motion to strike the loss of parental consortium claims in accordance with Mendillo, which the trial court granted. Thereafter, a jury returned a verdict for the decedent’s estate on the wrongful death claim and for Gregoria Campos on her loss of spousal consortium claim,and the trial court rendered judgment in accordance with the verdict. The Campos children then filed this appeal, contending that we should overrule Mendillo andallow them to pursuetheir claims for loss ofparental consortium.We agreewith theCampos children that we should recognize a cause of action by a minor child for loss of parental consortium resulting fromaninjurytoaparent,subjecttocertainlimitations. The facts underlying this case are tragic but straightforward. On September 15, 2008, the decedent was riding a bicycle on Westfield Street in the town of West Haven when he was struck by a motor vehicle that was owned by LQ Management and operated by Coleman. The decedent suffered severe injuries, resulting in his death three days later, on September 18, 2008. Thereafter, Gregoria Campos and the Campos children filed an eight count complaint alleging, inter alia, that(1) Colemanhadnegligentlycaused thedecedent’s death, thereby entitling the decedent’s estate to damagesunderthewrongfuldeathstatute,GeneralStatutes § 52-555, (2) LQ Management also was liable for Coleman’s negligence because it owned the motor vehicle thatColemanwasdrivingandColemanhadbeendriving it with LQ Management’s permission, (3) Gregoria Campos was entitled to damages for loss of spousal consortium, and (4) the Campos children were entitled to damages for loss of parental consortium. The defendants filed a motion to strike the claims for loss of parental consortium, as well as other claims not relevant to this appeal, and the trial court granted the

motionastothelossofparentalconsortiumclaims.The complaintwasamendedinaccordancewiththatruling. The jury ultimately returned a verdict for the decedent’s estate on the wrongful death claim and awarded damages in the amount of $2,948,000. In addition, the jury found that Gregoria Campos was entitled to damages for loss of spousal consortium in the amount of $1 million. The jury also found that the decedent had been 42 percent contributorily negligent and, accordingly,reducedthedamagesforthewrongfuldeathclaim to $1,709,840 and the damages for the loss of spousal consortium claim to $580,000. The trial court rendered judgment in accordance with the jury verdict and rendered judgment thereon. This appeal by the Campos children followed.4 They claimthat,althoughthetrialcourtcorrectlydetermined that, in light of this court’s decision in Mendillo, the defendants were entitled to judgment as a matter of law on their claims for loss of parental consortium, Mendillo was incorrectly decided, and we therefore should overrule it.5 We are persuaded by this claim. In Mendillo, a majority of this court ultimately declined to recognize a minor child’s claim for loss of parental consortium resulting from a tortfeasor’s conduct. Mendillo v. Board of Education, supra, 246 Conn. 461, 495–96. At the outset of our analysis of this issue in Mendillo, however, we candidly acknowledged that ‘‘manyof[theargumentsinsupportofrecognizingsuch a claim] have considerable appeal . . . .’’ Id., 480. In particular, we recognized that a minor child who, by virtue of a tortfeasor’s conduct, has been deprived of the love and companionship of a parent ‘‘has suffered agenuineinjury,andaseriousone.’’(Internalquotation marks omitted.) Id., 478. Underscoring this point, we explained that ‘‘we [had] recently reaffirmed that it is our state’s public policy to promote the welfare of the family, and that the interest of children in not being dislocated from the emotional attachments that derive from the intimacy of daily association . . . with the parenthasconstitutionalsignificance.’’(Internalquotation marks omitted.) Id., quoting Pamela B. v. Ment, 244 Conn. 296, 310, 709 A.2d 1089 (1998). We also acknowledged the argument made by the plaintiffsinMendillothat‘‘permittingcompensationfor loss of parental consortium will enable the emotionally injured child to secure the therapy that will, in turn, help to heal the wounds caused by his or her loss. . . . [N]ot only will the minor child benefit, but society will also benefit if the child is able to function without emotional handicap. This may well offset any increase in insurance premiums.’’ (Internal quotation marks omitted.) Mendillo v. Board of Education, supra, 246 Conn. 479. As we further observed in Mendillo, another argu

ment favoring the recognition of a derivative cause of actionforparentalconsortiumisthefactthatthiscourt already had recognized analogous causes of action for lossofspousalconsortium;Hopsonv.St.Mary’sHospital, 176 Conn. 485, 493, 408 A.2d 260 (1979); and bystanderemotionaldistress. Clohessy v. Bachelor,237 Conn. 31, 49, 675 A.2d 852 (1996). With respect to the former, we acknowledged the view, as expressed by the Supreme Court of Washington, that ‘‘permitting a husband or wife but not children to recover for loss of consortium erroneously suggests that an adult is more likely to suffer emotional injury than a child’’; (internal quotation marks omitted) Mendillo v. Board of Education, supra, 246 Conn. 480, quoting Ueland v. Pengo Hydra-Pull Corp., 103 Wn. 2d 131, 134, 691 P.2d 190 (1984); and noted the contention of the plaintiffs in Mendillo that, following our recognition of a derivative cause of action for spousal consortium in Hopson, the ‘‘logical [next step] from . . . Hopson[’s] protect[ion of]theemotionalorsentimentalaspectsofthehusbandwife relationship [is the] protection of the similar aspects of the parent-child relationship.’’ (Internal quotationmarksomitted.) Mendillov. Board of Education, supra, 479. With respect to our decision in Clohessy, ‘‘in which we recognized, for the first time and subject to certain limitations, that a parent and a sibling can recover damages for the emotional anguish they had [suffered] by witnessing the parent’s other young child beingfatallyinjuredbythedefendant’snegligence’’;id.; wenotedtheargumentof theplaintiffsin Mendillo that the ‘‘[a]pplication of this court’s logic in Clohessy to the question of whether a tortfeasor’s liability should exend to . . . loss of [parental] consortium properly instructs that the time is similarly ripe to recognize such cause of action in this state.’’ (Internal quotation marks omitted.) Id. Finally, we observed what the plaintiffs in Mendillo had‘‘characterize[d]astheemergingnationaltrendrecognizing . . . [a] cause of action [for loss of parental consortium] . . . .’’ (Internal quotation marks omitted.) Id., 479–80. We further observed that, in support of this argument, the plaintiffs in Mendillo had ‘‘cite[d] toanumberofjurisdictionsthathave,since1980,recognizedacauseofactionforlossofparentalconsortium.’’ Id., 480. Notwithstanding the conceded force of these arguments, we ultimately declined to recognize a cause of action for parental consortium, ‘‘primarily on the basis of: [1] the fact that recognition of the cause of action would require arbitrary limitations; [2] the additional economic burden that recognition would impose on the general public; [3] the uncertainty that recognition would yield significant social benefits; [4] the substantialriskofdoublerecovery;and[5]theweightofjudicial authority.’’ Id., 485. Justice Berdon issued a concurring anddissentingopinion,joinedby JusticeKatz,inwhich

he disputed these points in maintaining that the court should adopt this cause of action because its benefits outweighed its costs. See id., 514 (Berdon, J., concurring in part and dissenting in part). Upon reconsideration of the relevant considerations, including the five factors that this court found determinative in Mendillo, we now agree with the concurring anddissentingopinioninMendillothatthepublicpolicy factors favoring recognition of a cause of action for loss of parental consortium outweigh those factors disfavoring recognition. More specifically, we agree that the unique emotional attachment between parents and children, the importance of ensuring the continuity of the critically important services that parents provide to their children, society’s interest in the continued development of children as contributing members of society,andthepublicpoliciesinfavorofcompensating innocent parties and deterring wrongdoing provide compellingreasonstorecognizesuchacauseofaction. Withrespecttothecountervailingpolicyconsiderations on which we relied in Mendillo, we now are persuaded for the following reasons that our concerns were overstated. We first address our determination in Mendillo that recognizing such a cause of action would require the court ‘‘to impose arbitrary limitations on the scope of the cause of action in order to avoid the creation of a practically unlimited class of potential plaintiffs.’’ Id., 485. In Mendillo, we reasoned that ‘‘there are other formally recognized relationships . . . [such as] siblings, grandparent and grandchild, and aunt or uncle and nephew or niece . . . that could well, depending on the case, present equally strong claims of loss of consortium.Similarly,thereisnothingintheunderlying rationale for recognition of the claim to confine it to minor children. . . . There undoubtedly are adult children who suffer a genuine loss of consortium by virtue of their parent’s injury.’’ (Citation omitted; emphasis in original; footnote omitted.) Id., 485–86. Although we acknowledge that strong emotional attachments frequently arise in all of these relationships, we do not agree that the relationships ‘‘present equally strong claims of loss of consortium’’ as those arisingfromtherelationshipbetweenaminorchildand a parent. Id., 485. Almost by definition, the familial relationships referred to in Mendillo are more attenuated and derivative than the parent-child relationship because the relationship between siblings, between a grandparent and a grandchild, and between an uncle or an aunt and a niece or a nephew arises through the parent-child relationship. Indeed, ‘‘[t]he parent-child relationship is . . . the wellspring from which other family relationships derive . . . .’’6 (Internal quotation marks omitted.) Id., 500 (Berdon, J., concurring in part and dissenting in part), quoting Villareal v. Dept. of

Transportation, 160 Ariz. 474, 478, 774 P.2d 213 (1989); see also Mendillo v. Board of Education, supra, 500 (Berdon, J., concurring in part and dissenting in part) (‘‘the parent-child relationship . . . is the earliest and most hallowed of the ties that bind humanity’’ [internal quotation marks omitted]), quoting Nulle v. GilletteCampbell County Joint Powers Fire Board, 797 P.2d 1171, 1173 (Wyo. 1990). Moreover, the relationship between a parent and a minor child is the only one of theserelationshipsthatgivesrisetolegallyenforceable rights. See, e.g., In re Juvenile Appeal (Docket No. 9489), 183 Conn. 11, 15, 438 A.2d 801 (1981) (‘‘ ‘[t]he commonly understood general obligations of parenthood entail these minimum attributes: [1] express love andaffectionforthechild;[2]expresspersonalconcern over the health, education and general well-being of the child; [3] the duty to supply the necessary food, clothing, and medical care; [4] the duty to provide an adequate domicile; and [5] the duty to furnish social andreligiousguidance,’ ’’andfailuretomeettheseobligations may result in termination of parental rights). We also disagree with the court’s conclusion in Mendillo that the distinction between minor children and adult children is arbitrary. Although we recognize that manyadultscontinueto receiveaffectionandguidance from their parents well past the age of majority, adults do not have the same legal entitlements with respect to their parents as minor children; see id.; and are presumptively fully autonomous and responsible for their own well-being. See, e.g., Hibpshman v. Prudhoe Bay Supply, Inc., 734 P.2d 991, 997 (Alaska 1987) (loss of parental consortium claims are limited to minor children); Theama v. Kenosha, 117 Wis. 2d 508, 527, 344 N.W.2d 513 (1984) (‘‘[w]e . . . limit recovery under [a] cause of action [for loss of parental consortium] to [minor children] . . . because the minor is [the] one whoserelationshipismostlikelytobeseverelyaffected by a negligent injury to the parent’’); Nulle v. GilletteCampbell County Joint Powers Fire Board, supra, 797 P.2d 1176 (loss of parental consortium claims are limited to minor children). We further disagree with the suggestion of the court in Mendillo that adopting a cause of action for loss of parental consortium would require the court to arbitrarily exclude such claims by, for example, stepchildren. See Mendillo v. Board of Education, supra, 246 Conn. 485. For purposes of the present case, we need not decide whether a stepchild who has not been legally adopted by the injured stepparent should be permitted to bring a claim for loss of consortium. We recognize, however, that, in modern society, many children have parental-type relationships with adults who are neither their biological parents nor their adoptive parents. We further recognize that children who are deprived of such relationships are likely to suffer harm no less severe than the harm suffered by biological

and adoptive children in similar circumstances. As we indicated, because the question of whether such children may bring a loss of consortium claim is not presented by this appeal, we leave it for another day. We are not persuaded, however, that this issue, however itultimately mayberesolved, warrantsdenying allchildren the right of recovery for loss of parental consortium.7 For theforegoing reasons,our recognitionof acause of action by minor children for the loss of parental consortiumdoesnotrequire theimpositionofarbitrary limitations on such a cause of action. The child-parent relationship is unique in its emotional closeness, in its value to society and in its generation of enforceable legal rights and obligations. By limiting loss of familial consortiumclaimstocasesinvolvingtheimpairmentof thatrelationship,wearemerelyrecognizingthenatural distinction between that relationship and other familial relationships. See id., 513 (Berdon, J., concurring in part and dissenting in part) (‘‘[t]he distinction between the interests of children and those of other relatives is rational and easily applied’’ [internal quotation marks omitted]). We next address our determination in Mendillo that recognizingacauseofactionforlossofparentalconsortium by minor children would impose undue societal costs and would not yield significant social benefits. Id., 487. We observed in Mendillo that, unlike loss of spousalconsortiumclaims,lossofparentalconsortium claims may be raised by multiple children, and the resulting costs will be borne by society as a whole throughincreased insurancepremiums.Id., 487–88.We further stated that ‘‘the proposed offsetting value asserted by the minor plaintiffs—namely, that recovery will give the injured minor child the wherewithal to heal [his or] her wounds, thereby helping both [the child] and society at large—is too conjectural . . . .’’ Id., 488. We did not explain in Mendillo, however, why damages from loss of parental consortium claims are any moreconjecturalthanothertypesofnoneconomicdamages,suchasdamagesforpainandsufferingandlossof spousalconsortium.SeeHopsonv.St.Mary’sHospital, supra, 176 Conn. 494 (rejecting argument that damages forlossofspousalconsortiumaretooremoteorindirect toberecognizedbecause‘‘[t]hetaskofcomputingdamages for . . . loss of consortium is no more difficult forajudgeorjurythanarrivingatanawardforpainand suffering’’).Rather,itappearsthatthisdeterminationin Mendillo was based on the premise that a minor child’s loss of parental consortium is not essentially different, ormoreworthyofcompensation,fromthelosssuffered by other family members, or the losses suffered by plaintiffs in other cases involving third-party liability, which involve ‘‘the far reaches of foreseeability.’’ Men

dillo v. Board of Education, supra, 246 Conn. 493; see id. (discussing cases in which this court previously has rejected claims of third-party liability and concluding that, ‘‘if the presence of a genuine injury were legally sufficient to impose [third-party] liability, the only limitations on such liability would be the far reaches of foreseeability’’). On the contrary, the parent-child relationshipis essentiallydifferentfromotherfamilialrelationships,andtheinabilityofaparentwhohassuffered a physical or mental injury to provide the ‘‘love, care, companionship and guidance’’ to minor children that he or she otherwise would have provided; (internal quotation marks omitted) id., 478; is an eminently foreseeable and uniquely harmful consequence of such an injury.Seeid.,484(‘‘asageneralmatter,itisforeseeable thatcausingseriousinjurytoaparentmayhavedeleterious effects on the parent’s minor children’’); see also id., 499 (Berdon, J., concurring in part and dissenting in part) (‘‘[i]t is common knowledge that a parent who suffers serious physical or mental injury is unable to give his minor children the parental care, training, love andcompanionshipinthesamedegreeashemighthave but for the injury’’ [internal quotation marks omitted]), quoting Hoffman v. Dautel, 189 Kan. 165, 168, 368 P.2d 57 (1962). ‘‘Although a monetary award may be a poor substituteforthelossofaparent’ssocietyandcompanionship,itistheonlyworkablewaythatourlegalsystem has found to ease the injured party’s tragic loss.’’ Theama v. Kenosha, supra, 117 Wis. 2d 523; see also id. (damages for loss of parental consortium may be used to procure domestic services and psychiatric help for child). We further note that, if no compensation is available, the harm caused by the loss of parental consortium may not be limited to the child and may havewidersocietalimplications.SeeMendillov.Board ofEducation,supra,511(Berdon,J.,concurringinpart and dissenting in part) (‘‘development of a child’s character, disposition, and abilities [has] a corresponding impactonsociety’’[internalquotationmarksomitted]). We acknowledge that recognizing this cause of action will impose societal costs, as does the recognition of virtually any cause of action, but we now believe that the benefits of recognizing a cause of action for loss of parental consortium are not conjectural and outweigh the costs. With respect to the court’s concern in Mendillo that acauseofactionforlossofparentalconsortium‘‘would entail adding as many companion claims as the injured parent had minor children, each such claim entitled to separate appraisal and award’’; (internal quotation marks omitted) id., 487; this concern would be adequately addressed by allowing the tortfeasor to argue thatlossofparentalconsortiumdamagesordinarilywill be smaller per child the greater number of siblings a child has. This is because, in large families, older children frequently take on parental responsibilities for

their younger siblings, and parents ordinarily have less time per child to provide training and companionship.8 Cf. Reagan v. Vaughn, 804 S.W.2d 463, 467 (Tex. 1990) (in determining amount of damages, fact finder may consider whether other ‘‘consortium giving relationships are available to the child’’), modified on other grounds, Texas Supreme Court, Docket No. C-9548 (Tex. March 6, 1991). Although the total award for loss of parental consortium damages may be larger when an injured parent has numerous children, this merely reflects the fact that, overall, the scope of the injury is greater. Finally, we address our conclusion in Mendillo that recognizingacauseofactionforlossofparentalconsortium ‘‘would create a significant risk of double recovery.’’ Mendillo v. Board of Education, supra, 246 Conn. 489. In support of this conclusion, we explained that the injured parent ‘‘would be entitled, as part of [his or]herowndamagesforlossoflife’sordinaryactivities, to recover for [the] inability to care for [his or] her minor children.’’ Id. Although a parent might be able to recover for damages for the loss of the ability to provideservicestohisorherchildreninacaseinwhich alossofparentalconsortiumclaimhasnotbeenraised, this court held in Hopson v. St. Mary’s Hospital, supra, 176 Conn. 485, that loss of spousal consortium encompasses ‘‘both loss of services [to the other spouse, the value of which the injured spouse could recover in his or her own name] and loss of conjugal affection . . . .’’ Id.;seealsoid.(servicesprovidedbyspouseandlossof conjugal affection both constitute spousal consortium, and ‘‘courts commit error when they attempt to distinguishbetweenthedifferentelementsof[this]conceptualistic unity’’ [internal quotation marks omitted]). Similarly, parental consortium consists of both a parent’s services to his or her children, such as cooking, driving or housekeeping, as well as such intangibles as the parent’s ‘‘love, care, companionship and guidance . . . .’’ (Internal quotation marks omitted.) Mendillo v. Board of Education, supra, 478. To prevent double recovery under this approach, it would be sufficient to require the parent’s claim and the child’s claim to be joined in the same proceeding and to require the trial court to instruct the jury that damages for loss of the injured parent’s services are recoverable only by the minor child pursuant to the child’s loss of parental consortium claim. Next, we consider the court’s assessment of the weightofauthorityonthequestionofwhethertorecognize a cause of action for loss of parental consortium. This court stated in Mendillo that ‘‘the overwhelming weight of authority in the nation is against recognition of a cause of action for loss of parental consortium.’’ Id., 490. Our research reveals, however, that, of the forty-nineotherstatesandtheDistrictofColumbia,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. Twenty jurisdictions have recognized, in some form, a cause of action for loss of parental consortium arising from a parent’s injury,9 twenty-six jurisdictions have declined to recognize such a cause of action,10 and four jurisdictions are either unclear on the issue or have not addressed it.11 Of the courts that have declined to recognizeclaimsforlossofparentalconsortiumarising from a parent’s injury, seven have done so in divided opinions.12 More significantly, thirty-four jurisdictions have recognized, either judicially or, more commonly, legislatively, a cause of action for loss of parental consortium arising from the wrongful death of a parent.13 Only five jurisdictions, including this state, have declined to recognize loss of parental consortium claims arising from either an injury to or the death of aparent.14Thus,courtsinotherjurisdictionsaredivided on the question of whether to recognize a cause of action for loss of parental consortium arising from an injurytotheparent,withonlyasmallmajority—twentysix out of fifty—declining to do so, whereas a large majority of states have adopted such a cause of action arisingoutofthedeathofaparent,therebyrecognizing that ‘‘children have a legal entitlement to their parent’s society.’’ Williams v. Hook, 804 P.2d 1131, 1137 (Okla. 1990)(‘‘[i]nenacting[awrongfuldeathstatuteproviding fordamagesforlossofparentalconsortium],the[l]egislaturehasacknowledgedthatchildrenhavealegalentitlement to their parent’s society’’ [footnote omitted]). Accordingly,wenolongercanconcludethattheweight of authority supports our holding in Mendillo, much less that it does so overwhelmingly.15 Because we no longer agree with this court’s weighing of the relevant public policy factors in Mendillo, we now overrule our holding in that case and conclude that we should recognize a cause of action for loss of parental consortium. To decide otherwise wouldbeinconsistentwiththe‘‘thefundamentalpolicy purposesof thetort compensationsystem—compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct . . . .’’16 Mendillo v.BoardofEducation,supra,246Conn.482.Consistent with the foregoing analysis, however, we impose the following restrictions on loss of parental consortium claims. First, loss of parental consortium claims must be joined with the parent’s negligence claim whenever possible, and the jury must be instructed that only the child raising the claim can recover the pecuniary value of the parent’s services.17 Cf. Hopson v. St. Mary’s Hospital, supra, 176 Conn. 494 (loss of spousal consortium claim should be joined in one action with injured spouse’s claim and tried before single trier of fact to minimize possibility of inconsistent verdicts). Second, and relatedly, because a loss of parental consortium

action ‘‘is derivative of the injured [parent’s] cause of action, the consortium claim would be barred when the [action] brought by the injured [parent] has been terminated by settlement or by an adverse judgment on the merits.’’ Id. Third, a loss of parental consortium claim may be raised only by a person who was a minor on the date that the parent was injured, and damages may be awarded only for the period between the date oftheparent’sinjuryandthedatethatthechildreaches the age of majority.18 The defendants also contend that, if we recognize a cause of action for loss of parental consortium, we should limit liability to damages arising from injury to the parent during theparent’s life and thereby preclude damages arising from the parent’s death. For the reasons set forth in our decision in Ladd v. Douglas, 203 Conn. 187, 523 A.2d 1301 (1987), we agree with the restriction advocated by the defendants. In Ladd, we considered whether the plaintiff, Catherine Ladd, whose husbandhad beenkilled ina motorvehicle accident, was entitled to damages for the loss of spousal consortium during the ten days that her husband lived followingtheaccidentandfortheperiodafterhisdeath, pursuant to § 52-555. Id., 189. The defendants, the driver, the lessee and the lessor of the vehicle that struck the decedent, conceded that the plaintiff could recover for loss of consortium for the period between the accident and her husband’s death. Id. The defendants contended, however, that Ladd was not entitled to damages for loss of spousal consortium resulting from her husband’s death because, under the common law, there is no ‘‘right of recovery for the wrongful death of a victim on the part of either his estate or members of his family.’’ Id., 191. We agreed, observing that ‘‘our wrongful death statute has been regarded as the exclusive means by which damages resulting from death are recoverable.’’ Id., 195. We further observed that, under the wrongful death statute, a decedent’s estate may ‘‘recover the value to the decedent of his nonpecuniary as well as pecuniary services to others’’; id., 197; but the decedent’s family members are not authorized to recover damages in their own right. See id. Accordingly, we concluded that a spouse may not recover damages for postmortem loss of spousal consortium under Connecticut statutory or common law. Id. Our reasoning in Ladd applies equally to loss of parental consortium claims.19 We therefore conclude that loss of parental consortium claims are limited to claims resulting from a parent’s injury during the parent’s life. In addition to adopting the foregoing limitations on liability, the fact finder necessarily must consider whether the parent’s injuries were insignificant or serious, and whether they were temporary or permanent. We decline, however, to impose the limitation adopted by a number of courts that damages are recoverable

only when the parent has suffered a ‘‘serious, permanent and disabling mental or physical injury’’ that is ‘‘so overwhelming and severe that it causes the parentchild relationship to be destroyed or [to be] nearly destroyed.’’Keelev.St.VincentHospital&HealthCare Center, 258 Mont. 158, 162, 852 P.2d 574 (1993); accord Villareal v. Dept. of Transportation, supra, 160 Ariz. 480. Rather, ‘‘the severity of the injury to the parent and its actual effect [on] the parent-child relationship . . . 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’’; Reagan v. Vaughn, supra, 804 S.W.2d 467; are factors to be considered by the fact finder on a case-by-case basis in determining the amount of damages.20 Finally, we address the defendants’ contention that, if we recognize a cause of action for loss of parental consortium, we should not make it available to the parties in the present case but should apply it prospectively only. In support of their claim, the defendants rely on Ostrowski v. Avery, 243 Conn. 355, 703 A.2d 117 (1997), in which this court applied ‘‘the three-part test set out in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971), for determining whether a decision must be applied prospectively only. A common-law decision will be applied nonretroactively only if: (1) it establishes a new principle of law, either by overruling past precedent on which litigants have relied . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed . . . (2) given its prior history, purpose and effect, retrospectiveapplicationoftherulewouldretarditsoperation; and (3) retroactive application would produce substantial inequitable results, injustice or hardship.’’ (Citation omitted; internal quotation marks omitted.) Ostrowski v. Avery, supra, 378 n.18. The defendants contend that, because we have created a new rule that would impose a substantial burden on them, they have met this test. The defendants also refer to this court’s holding in Hopson that the newly adopted cause of action for loss of spousal consortium would not be available when ‘‘a spouse’s claims for . . . injuries has been concluded by judgment or settlement or the running of [the] limitations [period] prior to’’ the issuance of that decision. Hopson v. St. Mary’s Hospital, supra, 176 Conn. 496. The defendants acknowledge that the new cause of action was available to the plaintiffs in Hopson, but they contend that this was because the appeal in that case was interlocutory. Because the present case has gone to judgment on the merits, they contend that our holding cannot apply retroactively under Hopson. We are not persuaded by the defendants’ argument. Thegeneralruleisthatjudicialdecisionsapplyretroactivelytopendingcases;e.g.,Avolettav.State,152Conn.

App. 177, 186 n.2, 98 A.3d 839, cert. denied, 314 Conn. 944, 102 A.3d 1116 (2014); and this court’s decision in Ostrowski sets forth the conditions under which the courts will recognize an exception to that general rule. See Ostrowski v. Avery, supra, 243 Conn. 378 n.18; see alsoMaronev.Waterbury,244Conn.1,10,707A.2d725 (1998)(‘‘judgmentsthatarenotbytheirtermslimitedto prospective application are presumed to apply retroactively’’); Clohessy v. Bachelor, supra, 237 Conn. 57 (‘‘[t]raditionally . . . in cases of civil tort liability in which new causes of action are recognized, the new theory of liability is applied to the parties in the case’’). The defendants in the present case have pointed to no exceptional circumstances that would render the retroactive application of our decision in the present case inequitable or unduly harsh, and they cannot seriously contend that they relied to their detriment on the rule enunciated in Mendillo.21 See Hopson v. St. Mary’s Hospital, supra, 176 Conn. 495–96 (‘‘[o]ur decision . . . [adopting a cause of action for loss of spousal consortium] does not drastically or radically change existing law, for in no serious way will an existing interest be impaired or an expectation be disappointed or a reliancebedefeated’’);seealsoMuellerv.Tepler,312Conn. 631, 655, 95 A.3d 1011 (2014) (newly adopted cause of action for loss of consortium by person who would have married victim of tortious conduct if she had not been prevented by law that violated public policy was available to parties to appeal when defendants could not have relied on previous rule to their detriment); Clohessy v. Bachelor, supra, 57 n.15 (newly adopted cause of action for bystander emotional distress was available to parties to appeal because existence of rule couldhave‘‘hadnoinfluenceonthedefendant’salleged negligent conduct’’); Hopson v. St. Mary’s Hospital, supra, 496 n.5 (courts are more willing to abandon old rule and to apply new rule to parties in case ‘‘when the rule to be discarded may not be reasonably supposed to have determined the conduct of the litigants’’). Moreover,contrarytothedefendants’contention,the appealinHopsonwasnotinterlocutorybutwas‘‘[f]rom thejudgmentofthe[trial]courtrenderedonthedemurrers[totheplaintiffhusband’slossofconsortiumclaim, which the trial court had] sustained . . . .’’ (Footnote omitted.) Hopson v. St. Mary’s Hospital, supra, 176 Conn. 486. Thus, when we stated in Hopson that the holding of that case would not apply to cases that had ‘‘beenconcludedbyjudgment’’;id.,496;weclearlywere referringtocasesinwhichtherewasnoappealpending. See, e.g., State v. Thompson, 118 Conn. App. 140, 154, 983 A.2d 20 (2009) (prior judicial decision applied to caseinwhichjudgmenthadbeenrenderedandinwhich appeal from judgment was pending), cert. denied, 294 Conn. 932, 986 A.2d 1057 (2010); cf. Marone v. Waterbury, supra, 244 Conn. 13 (for purposes of determining whetherjudicialdecision appliesretroactivelytowork

ers’ compensationaward, award was finaland decision did not apply ‘‘when . . . the parties fail[ed] to appeal [from the award] within the statutory time period’’); seealsoMaronev.Waterbury,supra,11n.10(presumption of retroactivity of judicial decisions is limited to ‘‘pendingcases’’becauseapplicationofjudicialdecision to case in which no appeal is pending and trial court would be required to open and modify judgment would violate principles of res judicata and collateral estoppel). We therefore conclude that our holding recognizing a cause of action for loss of parental consortium applies to the present case and to other pending cases. No action for loss of parental consortium will be allowed, however, when a parent’s ‘‘claim for . . . injuries has been concluded by judgment or settlement or the running of [the] limitations [period] prior to the [issuance] of this opinion . . . .’’ Hopson v. St. Mary’s Hospital, supra, 496.

The judgment is reversed with respect to the claims for loss of parental consortium and the case is remanded with direction to deny the defendants’motion to strike those claims and for further proceedings in accordance with this opinion.

In Mendillo v. Board of Education, 246 Conn. 456, 461, 495–96, 717 A.2d 1177 (1998), this court declined to recognize a derivative cause of action for loss of parental consortium by a minor child.1 The primaryissuepresentedbythis caseiswhetherweshould overrule this holding in Mendillo. We conclude that we should.