804 S.W.2d 463 (1990)

William David REAGAN, et al., Petitioners,
v.
Lester VAUGHN, et al., Respondents.

No. C-9548.

Supreme Court of Texas.

December 19, 1990. Rehearing Overruled In Part March 6, 1991.

*464 Mr. William Fred Hagans, Sylvette C. Bobb, Houston, for petitioners.

Mr. John P. Venzke, Houston, for respondents.

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,^[1] 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 Rosenovac 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.^[2] 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 resulting *465 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. § 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,^[3] this court should recognize a common law cause of action for loss of consortium damages that result from injury to a parent.^[4]

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 parentchild 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 *466 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.^[5] 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,^[6] 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 *467 consortium and loss of consortium does not include an element of mental anguish. Mc-Govern 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.

OPINION ON MOTION FOR REHEARING

GONZALEZ, Justice.

On motion for rehearing, Vaughn, among other things, requests that we clarify whether this court's holding that a child may recover for loss of consortium when a third party causes serious, permanent and disabling injuries to her parent should be given retrospective or prospective application. There is also confusion as to whether there must be a threshold finding by the finder of fact as to the nature of the injury before the consortium damage issue would be submitted or whether the issue of serious, permanent and disabling injury is to be submitted by the court to a jury by an instruction. Reagan's motion for rehearing is overruled and Vaughn's motion for rehearing is overruled in part and granted in part.

After this court allowed recovery under the Wrongful Death Statute for loss of consortium for the death of a minor child or parent, respectively, in Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983) and Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex. 1985), the judgments were applied partially retrospectively by limiting recovery to future causes and those still in the judicial process. In Sanchez, this court concluded that considerations of fairness and policy preclude full retroactivity when the court's decision establishes a new principle of law that either *468 overrules clear past precedent on which litigants may have relied or decides an issue of first impression whose resolution was not clearly foreshadowed. In these wrongful death cases, then, this court reasoned that it was likely that litigants and trial courts had justifiably relied on previous interpretations of damages under the Wrongful Death Act.

Under similar policy considerations, however, this court in Whittlesey v. Miller, 572 S.W.2d 665 (Tex.1978), found that sound administration and fairness required only prospective application for a spouse to recover loss of consortium when the other spouse had been negligently injured by a third party. See also Minyard Food Stores v. Newman, 612 S.W.2d 198, 199 (Tex.1981). Prospective application was also applied in Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex. 1984), based on the court's reasoning that litigants and trial courts had faithfully relied upon prior interpretations of comparative causation for strict liability in tort, and it would be unfair to apply the decision retrospectively.

In the case at bar, we announced a new rule of law. The purpose of the new rule is to allow children the same protection allowed spouses when a third party causes serious, permanent, and disabling injuries to their parent. Like these other personal injury cases, past litigants and trial courts have relied upon previous interpretations of recovery for loss of parental consortium so that applying complete retrospective application would subject numerous defendants to claims in cases they previously believed had been finalized.

If we were to apply this holding retroactively to all minors whose claims have not been extinguished by expiration of the statute of limitations, we would open up a pandora's box. Attorneys would be under an ethical duty to find, review and evaluate every personal injury case over the last twenty years in which there are minor children involved to determine if the facts of these old cases came within the purview of Reagan. The uncertainty and potential increase in cases would be administratively burdensome on all concerned including the courts. It would also place professional responsibility on lawyers to inform applicable past litigants of the potential cause of action.

Therefore, we declare, as a matter of sound administration and fairness, that this holding shall be applicable only in the present case; those actions arising on or after December 19, 1990; causes of action for loss of parental consortium pending in the courts on December 19, 1990; and causes of action derived from a parent's claim so long as the parent's claim had not been extinguished by settlement, final judgment on appeal, or expiration of the statute of limitations on December 19, 1990.

We also note that the cause of action for loss of parental consortium, like the cause of action for loss of spousal consortium is a derivative cause of action. As such, the defenses which bar all or part of the injured parent's recovery have the same effect on the child's recovery. Any percentage of negligence attributable against the parent under Texas' comparative negligence statute will reduce the amount of the child's recovery. See Whittlesey v. Miller, 572 S.W.2d 665 (Tex.1978). In this case, however, the defendants' have waived their claim for this relief by failing to raise this point in their motion for rehearing.

Finally, when the facts are disputed, there must be a threshold finding by the finder of fact that the injury to the parent was a serious, permanent, and disabling injury before the finder of fact determines the consortium damage issue.

Concurring and dissenting opinion on motion for rehearing by HECHT, J., joined by CORNYN, J., and in part by PHILLIPS, C.J.

Concurring and dissenting opinion on motion for rehearing by DOGGETT, J., joined by MAUZY, J.

HECHT, Justice, concurring and dissenting.

Today the Court creates a new personal injury cause of action, holding for the first *469 time that a person is entitled to money damages for a diminution in parental love, advice, comfort, companionship and society occasioned by tortious injury to the parent. The Court extends this newly allowed recovery to adult as well as minor children, although the only child in this case is a minor. It equivocates on the rather important matter of how seriously a parent must be injured before the child can recover, suggesting at several points in its opinion that recovery may be sought for any injury to a parent, and at other points, including the opinion on rehearing, that the injury must be "serious, permanent, and disabling". On rehearing, the Court considers for the first time the retroactive effect of its decision and partially restricts that effect. The Court never acknowledges the problems its decision poses for the judicial system. Henceforth every person whose parent is, or within any applicable limitations period has been, personally injured— either intentionally, or in a motor vehicle accident, or by a fall, or from using an unreasonably dangerous product, or while receiving medical or health care, or as a result of any other tortious misconduct— has a separate damage claim against the person causing the injuries. In the future, simple personal injury claims cannot be absolutely resolved without the concurrence of the injured person's children. See Whittlesey v. Miller, 572 S.W.2d 665, 669 (Tex.1978). Today's decision is breathtaking in its scope.

For so extreme a change in the common law the Court ought to have some compelling justification, yet I do not find it in the Court's opinion. Rather, the Court poses the rhetorical question—"Should the parent-child relationship be protected?"—and quickly provides the unsurprising affirmative answer. The question is irrelevant and the answer immaterial. Every personal relationship, not just the parent-child relationship, ought to be, in the Court's words, "worthy of protection"; at least the Court does not name the relationships which it thinks are un worthy of protection. Yet the Court holds that damages may not be recovered for every loss of consortium, such as between siblings. An affirmative answer to the Court's question simply does not decide this case. I suspect the Court phrases its inquiry to make its decision as appealing as it can. But rhetoric does not substitute well for reason.

I concur with the Court that damages should not be awarded for a child's mental anguish caused by injury to a parent in these circumstances. I disagree only with the Court's allowance of damages for loss of consortium, which is not justified either by the record in this case or what little analysis there is in the Court's opinion. Good reasons, totally ignored by the Court, strongly support the opposite conclusion. Because I think it is most unwise to allow recovery for loss of parental consortium whenever the parent is injured but not killed, I dissent.

I

If ever there were a case that cried out for recovery for loss of parental consortium, this is not it. The circumstances of David Reagan's injury and any consequent loss to his daughter, Julia, vivify the appropriateness of awarding a person money because his or her parent has been hurt. Brushing facts aside, the Court simply idealizes that "[a] child faced with Julia's circumstances can no longer experience the joy of shared experiences with the parent and is denied the care, guidance, love, and protection ordinarily provided by a parent." Supra at 466. The Court is conspicuously vague about what Julia's circumstances are exactly, and about whether the evidence shows that she would have had the sort of relationship with her father, but for his injury, that other children "ordinarily" have. The concurring opinion picks up the Court's refrain, adding that children in Julia's circumstances—not Julia herself, but children like Julia—face "sorrow and grief... on a daily basis." Supra at 489. There is absolutely no evidence in the record before us that Julia faces, or has ever faced, sorrow and grief on account of her father's injury. There is some evidence to the contrary.

These panegyrics, while moving as they are no doubt intended to be, have little to *470 do with the reality of this case. The Court's preference for generalities calls for a recapitulation of the facts here in some detail.

A

When his wife of some four years filed for divorce, David Reagan left her and their four-year-old daughter, Julia, in Indiana and moved to Houston. Unemployed, the 22-year-old Reagan became a "regular" at K-Jacs Saloon, a beer joint in a "rough" part of town. K-Jacs was owned by Keith Jack Nichols and Ernest Rosenovac, and managed by Lester Gene "Lucky" Vaughn. Vaughn's duties included protecting the barmaids and waitresses from harassment and breaking up fights among the patrons, routine occurrences at K-Jacs and other bars in its neighborhood. Reagan spent two or three nights a week at K-Jacs during the three months he stayed with his sister. Vaughn testified that he had seen Reagan in the bar on several prior occasions and that Reagan seemed like a nice kid.

On Friday, the thirteenth of June, Reagan arrived at K-Jacs early, about 3:30 or 4:00 p.m. One of the waitresses, Elizabeth "Tina" Lamb, testified that Reagan said he was very upset because he was about to return to Indiana to finish up his divorce. He began drinking immediately, Lamb stated, and continued to drink heavily throughout the evening, roaming around in the bar, increasingly intoxicated and increasingly violent. Reagan stayed until K-Jacs closed at 2:00 a.m. Nearly three hours later his blood alcohol level was .226 gm/dl, more than twice the level for legal intoxication.^[1]

Richard Lepper testified that he noticed while talking with Reagan during the evening that Reagan was unstable. Concerned that Reagan was in no condition to be driving, Lepper said he offered to take Reagan to get something to eat and then home. Lepper stated that as he and Reagan were walking out across the parking lot, Reagan stopped to talk to two girls in a car. When they drove off, Lepper said, Reagan got into an argument with three cowboys who were standing nearby. Lepper, who had been stabbed on the K-Jacs parking lot on a separate occasion, testified that he begged Reagan to leave, but the argument turned into a scuffle, and when he tried to pull Reagan away from the others, Reagan turned, enraged, and began to fight like a wild man.

About that time Ronnie Di Simone and his wife, Donna, were also leaving K-Jacs. They had been to a movie earlier in the evening and had stopped by on the way home. Di Simone testified that as he walked out of the bar he saw Reagan, whom he had seen at K-Jacs on prior occasions, grabbing through the open window of a car at a man inside and shouting, "I'm going to whip your ass." Di Simone said that he walked over to Reagan and tried to persuade him to leave, but Reagan whirled around and said, "If I can't whip him, I'm going to whip you." Di Simone said that Reagan hit him, and the two began to fight. After a few minutes, Di Simone stated, Vaughn came out of the bar and separated them, telling them that he had called the police and that they had better go home. Vaughn testified that he was cleaning up in the bar after it closed when he was told that there was fighting outside. He stated that he told one of the bartenders to call the police, went outside and stopped the fight, and then returned inside. Several spectators verified that Vaughn warned everyone to leave and told them that the police were on their way.

Reagan, however, was wild-eyed and uncontrollable, according to Di Simone, and came at him again. Vaughn testified that when he heard that Reagan and Di Simone were still fighting, he again instructed an employee to call the police and went outside to break them up. This time, Vaughn stated, he grabbed Reagan, threw him on the ground, and sat on him until Reagan promised he would go home if Vaughn would let him up. Di Simone stated that *471 he tried to walk away while Vaughn pinned Reagan on the ground, but that as soon as Reagan got up he came at Di Simone again. Di Simone testified that Reagan shouted that "he was in a fighting mood and he was going to whip some son-of-a-bitch".

Vaughn testified that having failed in his efforts to separate Reagan and Di Simone, he went inside K-Jacs, instructed one of the waitresses again to call the police, retrieved a baseball bat he kept under the bar, and went back outside. By this time Reagan and Di Simone had been fighting off and on for nearly half an hour. Several witnesses testified that as Vaughn tried again to break up the pair, Di Simone hit Reagan so that he fell, striking his head against a concrete curb on the parking lot. Reagan got up and lunged, screaming, at Vaughn who was using the baseball bat to push Di Simone away. Lamb and another K-Jacs waitress, Diane Jackson, who were watching the fight, testified that Vaughn was only trying to settle the two down. But Reagan, Lamb stated, would not stop cursing and fighting. Another onlooker, Ronnie McFadden, testified that Reagan was fighting as if he were not afraid of anything.

As to some of the details of the events of the evening the recollections of the witnesses vary. But every witness present testified that when Reagan came up behind Vaughn, someone yelled that there was a knife. Waitresses Lamb and Jackson heard it, although they did not see anyone with a knife. McFadden heard someone shout, "Look out, Lucky, he's got a knife!" Don Morgan, a K-Jacs patron who was still inside the bar, heard the same thing. Neither McFadden nor Morgan actually saw a knife. However, Vaughn, Di Simone and Di Simone's wife all testified that they not only heard the shout but saw a knife in Reagan's hand. Henry Willis, a passerby who drove into the parking lot to see what was happening, also heard the same outcry and saw Reagan with a knife.

As soon as someone yelled that there was a knife, Di Simone kicked at Reagan, and as he did, Vaughn turned and swung the bat, hitting Reagan in the side of the head. Reagan fell to the ground motionless. Vaughn and several others immediately loaded Reagan into a vehicle to take him to the hospital. When the police arrived at 2:44 a.m., the parking lot was clear. The knife, if there was one, was never found.

As a result of his injury, Reagan suffered serious, permanent, debilitating brain damage. Although he is able to care for himself in many respects, he cannot function as an adult. A physician testified at trial that Reagan behaves much like a six-year-old child and will never significantly improve.

B

The only evidence of the nature of the relationship between Reagan and his daughter, Julia, is the testimony of Reagan's two sisters, Geneva Dale Showalter and Donita Cooper. Neither Julia, who was eleven years old at the time of trial, nor her mother, Tressa, appeared at trial or offered testimony. Reagan appeared but did not testify.

Cooper testified that Reagan married Tressa when he was seventeen and joined the army a few months later while she was still pregnant. Cooper stated that Reagan was stationed not far from where Tressa and Julia lived, and that he would see his daughter sometimes on weekends. Reagan was, his sister said, an affectionate father. Reagan was discharged from active duty when his daughter was about three years old, and soon thereafter Tressa filed for divorce. Tressa was working at the time because Reagan could not find a job, and Reagan sometimes stayed with his daughter while her mother was at work. Within a year, however, Reagan left Tressa and Julia and moved to Houston. Cooper testified that the week Reagan was injured she heard him talking to his daughter on the phone, telling her that he missed her too much and was moving back to Indiana.

Showalter testified that when she heard Reagan had been injured, she went from her home in Indiana to visit him in the hospital in Houston. Neither Tressa nor Julia ever visited or called Reagan during *472 the several weeks he was in the hospital. Showalter said that after she returned to Indiana and told Tressa what had happened, Tressa took Julia and moved away from Indiana without telling Reagan or his family where they were going. Showalter eventually discovered that Tressa had taken Julia to Florida and remarried. Showalter recalled that once when Reagan attempted to call his daughter in Florida, Tressa's new husband came on the phone and told Reagan never to do so again.

After convalescing in Houston, Reagan returned to Indiana to live with his parents. He did not see his daughter or talk to her while she lived in Florida. At some later date Tressa and Julia returned to Indiana and settled in a town about thirty miles from Reagan's parents' home. Showalter testified that Reagan sees his daughter occasionally when she visits in Showalter's home, that she still loves him, that they sometimes watch television together but do not talk or play, and that Julia is embarrassed by the situation. Reagan's sisters testified that Reagan sometimes cries when he thinks of his daughter.

What evidence there is regarding the relationship between Reagan and his daughter now or at any time, almost all of it pertains to how Reagan thinks of Julia. The only evidence in this record of how Julia thinks of Reagan is the following testimony by Showalter:

Q. Does she [Julia] ever talk to you about David?

A. Yes. I have tried to explain David's condition to her. Julia's a quiet child so she doesn't ask a lot of questions and it's hard for her to understand. I think she's embarrassed—I mean, she loves David, but she's embarrassed by the situation.

.....

Q. Does she ever come to him with her problems? Can she tell him her problems and he help her out, give her any guidance?

A. Not really, you know, like you or I would do. He did take some candy away from her before dinner, which upset her.

Q. Does she ever talk to you about how she feels about David?

A. Well, she doesn't want to say anything to hurt my feelings about David. I know she's embarrassed by the condition from talking to her mother. And she— when I talk to her about it, you know, she tells me she understands but we're talking about an 11-year-old child here. I mean, she loves him but, you know— well, you can imagine if it was your father with your other friends and stuff. I don't know how to explain it to you except to say that.

C

Six weeks after his injury Reagan sued Vaughn and K-Jacs' co-owner Nichols. Reagan alleged that Vaughn was negligent in hitting him with the bat, and that Nichols was liable for Vaughn's conduct as his employer. Sometime later Vaughn was charged with aggravated assault and acquitted by a jury. Reagan eventually added Rosenovac, Nichols' partner, as a defendant, and alleged that the two of them were negligent in hiring Vaughn and in failing to provide trained security personnel at their beer joint. More than seven years after filing suit, and about three weeks before this case finally came to trial, Reagan amended his petition to name as a plaintiff for the first time his daughter Julia through her mother, Tressa Arnette, as next friend.

The jury found that Reagan, Vaughn, Nichols and Rosenovac were all negligent in causing Reagan's injury. The jury attributed 40% of that negligence to Reagan himself, and 20% each to Vaughn, Nichols and Rosenovac. The jury did not find any of the defendants to have been grossly negligent. The jury assessed fair and reasonable compensation for Reagan's injuries, past and future, at $2,432,000.00.^[2] The jury found Julia's damages as follows:

*473
Parental support in the
past                                        -0-
Parental support in the future
                                            -0-
Loss of parental care, nurture
and guidance from
David Reagan as a result
of the injuries and disability
suffered by David Reagan
in the incident                             $200,000.00
Mental anguish in the past                  $ 25,000.00
Mental anguish which Julia
Reagan will, in reasonable
probability, suffer in the
future                                      $180,000.00
                                            ___________
TOTAL                                       $405,000.00

The trial court rendered judgment on the verdict, awarding Reagan $1,459,200.00, calculated to be the amount of his actual damages found by the jury reduced by 40%, the percentage of negligence attributed to him. The trial court awarded Julia the entire $405,000.00 found by the jury, not reduced by the percent of Reagan's negligence.

The court of appeals affirmed the judgment as to Reagan.^[3] It reversed the judgment in favor of Julia, however, holding that while the evidence was factually and legally sufficient to support the jury's damage findings for her, the law did not provide a basis for her to recover those damages. The appeals court suggested that it did not agree with a legal prohibition against such recovery, but that it was not authorized to change the law. One justice dissented, stating that he would allow recovery by Julia and affirm the judgment of the trial court in its entirety. 784 S.W.2d 88.

II

The Court's decision today is well outside the mainstream of the common law which for centuries has restricted recovery of damages for tortious injury to personal relationships to very limited circumstances. Not until the past decade has any American jurisdiction extended that recovery to include loss of consortium for bodily injury to a parent. Only a very small minority of jurisdictions, at most three and perhaps only one, appear to have wandered so far as the Court does today.

A

Like many areas of the law, the right to recover damages for loss of consortium has not followed a strictly logical course of development. Generally speaking, however, the existence of the right has depended upon the nature of the relationship and whether the injury to it is direct or indirect.

Very early on the common law recognized a master's right of action to recover for a loss of services resulting from a tortious injury to his servant. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on The Law of Torts § 125, at 931 (5th ed. 1984) [hereinafter Prosser & Keeton]. Inasmuch as servants were then considered rather like chattels, and the master's recovery was limited to economic losses, the action was more in the nature of a claim for property damage than for impairment of relationship. By 1619, according to Prosser and Keeton, the principle underlying the master's cause of action had been applied to allow a husband to recover for the loss of his wife's services caused by a third party. Prosser 124, at 916, and § 125, at 931. Eventually, following the same rationale although somewhat more reluctantly, the law also came to recognize the right of a father to recover for the lost services of a child. Prosser & Keeton § 124, at 924-25.

*474 Actionable injury to the marital or filial relationship might be direct or indirect. Injury was direct when the wife or child was either forced or induced by a stranger to the relationship to contravene the obligations of the relationship. Actions for such direct, intentional injury included abduction, enticement, seduction, criminal conversation, and much later, alienation of affection. Prosser 124. Indirect injury occurred when the wife or child was injured so that the marital or filial role was impaired. Prosser 125.

Whether the actionable injury was direct or indirect, recovery was limited at first to economic losses. Much later, and only more recently, the concept of lost services expanded to include injury to the intangible and emotional affection and society involved in the relationship, and the sexual aspect of the marital relationship, together referred to as "consortium".^[4]Id.; Restatement of Torts § 693 (1938); Restatement (Second) of Torts § 693 comment c (1977); Holbrook, The Change in the Meaning of Consortium, 22 Mich.L.Rev. 1, 2 (1923); Pound, Individual Interests in the Domestic Relations, 14 Mich.L.Rev. 177, 183 n. 18, 188-89 (1916); see Annotation, Husband's Right to Damages for Loss of Consortium Due to Personal Injury to Wife, 21 A.L.R. 1517 (1922), 133 A.L.R. 1156 (1941). A husband's loss of spousal consortium thus came to be recognized as compensable under the common law, whether the loss was caused by direct or indirect injury to the marital relationship. The common law also recognized a father's right to recover for loss of filial consortium caused by certain direct injuries to his relationship with his child, excluding alienation of affections, but it did not extend that recovery, as for loss of spousal consortium, to indirect injuries to the relationship. Prosser 124, at 924-29, and § 125, at 934-35; Restatement of Torts §§ 699-707 (1938); Restatement (Second) of Torts §§ 699-707 (1977).

The common law did not extend to wives and mothers the recovery for loss of consortium afforded husbands and fathers, principally because married women were subject to legal disabilities and were not legally entitled to the service of their husbands and children. With the statutory removal of those disabilities came the recognition that women should have the same rights as men to sue for loss of consortium. Prosser 124, at 916-17; Restatement of Torts § 690 comment a (1938); Restatement (Second) of Torts § 683 comment d (1977). At first wives were limited to recovery for direct injury to the marital relationship. See Restatement of Torts §§ 690, 693 (1938). Not until as recently as 1950 did any American jurisdiction permit a wife to recover for loss of consortium caused by tortious, bodily injury to her husband. Prosser & Keeton § 125, at 931-32; Restatement of Torts § 695 (1938); Restatement (Second) of Torts § 693 comment d (1977); Annotation, Wife's Right of Action for Loss of Consortium, 36 A.L.R.3d 900 (1971). By 1969, when the American Law Institute tentatively adopted section 693 of the Restatement (Second) of Torts, recognizing a cause of action by either spouse, it was still the minority rule in the United States. Restatement (Second) of Torts Appendix to § 693, at 515 (1981).^[5] Today most states follow the rule in section 693, although a few still do not. Prosser 125, at 932.^[6] Concurrently, the right to recover *475 loss of consortium for direct injury to the marital relationship has been abolished by statute in most American jurisdictions. Prosser 124, at 929-30.

The common law did not allow recovery for loss of parental consortium under any circumstances, whether the injury to the relationship was direct or indirect. Prosser 124, at 929, and § 125, at 935; Restatement (Second) of Torts § 707A (1977). This appears to have been due, at least in part, to the fact that the common law imposed upon a parent no legal duty to support a child, and thus the child had no right to parental support or society which injury to the parent could impair. See Pound, supra, at 183-86. Loss of parental consortium has been allowed, however, in wrongful death cases. Historically, the common law did not recognize a cause of action for wrongful death. PROSSER & KETTON § 127, at 945-46; S. SPEISER, RECOVERY FOR WRONGFUL DEATH §§ 1:1-1:2 (2d ed. 1975). The action was first created in England by the passage of Lord Campbell's Act in 1846. Prosser & Keeton § 127, at 945; S. Speiser, supra, § 1:8. Soon afterward American legislatures began to follow suit, and currently all states have statutes allowing recovery for wrongful death, usually by the decedent's spouse, children and parents. Prosser & Keeton § 127, at 945-46; S. Speiser, supra, § 1:9. At first most of these statutes were construed to limit recovery to economic losses, but in later years, mostly since the 1950's, some courts and legislatures have allowed damages for loss of consortium to all statutory beneficiaries, children as well as parents and spouses. See Prosser 127, at 949-54; S. Speiser, supra, §§ 3:1, 3:49; 3 A Personal Injury §§ 3.06-3.07 (L. Frumer & M. Friedman ed. 1989); Restatement (Second) of Torts § 925 comments b, e (1979). Now a majority of states allow recovery for loss of consortium—spousal, filial and parental—in wrongful death actions, either by statute or caselaw; a substantial minority, however, still do not. Prosser & Keeton § 127, at 951-53; S. Speiser, supra, § 3.49; 3A