                  This opinion is subject to revision before
                       publication in the Pacific Reporter

                                 2016 UT 37


                                  IN THE

        SUPREME COURT OF THE STATE OF UTAH

              ROBERT BENDA and CHRISTINA BENDA,
    individually and as parents and guardians of P.B., a minor,
                            Appellants,
                                     v.
           ROMAN CATHOLIC BISHOP OF SALT LAKE CITY
            dba CATHOLIC DIOCESE OF SALT LAKE CITY
               and SKAGGS CATHOLIC CENTER dba
              JUAN DIEGO CATHOLIC HIGH SCHOOL,
                          Appellees.


                           No. 20150221
                       Filed August 25, 2016


                          On Direct Appeal


                     Third District, Salt Lake
                 The Honorable Sandra N. Peuler
                         No. 140905541

                               Attorneys:
          Troy L. Booher, Beth E. Kennedy, Salt Lake City,
John F. Romano, John E. Romano, Hali E. Marsocci, Lake Worth, FL,
                           for appellants
     Gary L. Johnson, Mark L. McCarty, Zachary E. Peterson,
          Kallie A. Smith, Salt Lake City, for appellees

   JUSTICE HIMONAS authored the opinion of the Court, in which
       CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
           JUSTICE DURHAM, and JUSTICE PEARCE joined.
                      BENDA v. CATHOLIC DIOCESE
                          Opinion of the Court

   JUSTICE HIMONAS, opinion of the Court:
                           INTRODUCTION
    ¶ 1 After a fourteen-year-old student at Juan Diego Catholic High
School suffered serious and life-threatening injuries in his drama class,
his parents filed a lawsuit, individually and as parents and guardians
of the student. They asserted negligence and vicarious liability claims
and also sought to bring a personal claim for loss of filial consortium.
The district court dismissed the loss of filial consortium claim and
certified the dismissal as final under rule 54(b) of the Utah Rules of
Civil Procedure. The parents appealed to this court.
    ¶ 2 The question before us is whether Utah should “judicially
adopt a cause of action that allows the parents of a tortiously injured
[minor] child to recover for loss of the child’s consortium.” Boucher
ex rel. Boucher v. Dixie Med. Ctr., 850 P.2d 1179, 1182–83 (Utah 1992). As
explained below, we adopt a cause of action for loss of filial consortium
allowing parents to recover for loss of filial consortium due to tortious
injury to a minor child in cases where the injury meets the definition set
forth in Utah Code section 30-2-11, the spousal consortium statute.
Therefore, we reverse the district court’s dismissal of the loss of filial
consortium claim and remand the matter to the district court for further
proceedings.
                            BACKGROUND
    ¶ 3 On October 26, 2012, a fourteen-year-old student at Juan
Diego Catholic High School was injured in drama class while working
as part of a student crew on the set for the school’s drama production.1
The drama teacher had told the student to “climb into a lift to replace
light bulbs in the auditorium.” While the student was in the lift and
elevated thirty feet in the air, the teacher instructed several other drama


   1 Because this is an appeal from a motion to dismiss, we recite the
facts in favor of the nonmoving party. Russell Packard Dev., Inc. v.
Carson, 2005 UT 14, ¶ 3, 108 P.3d 741 (“When reviewing the propriety of
a motion to dismiss, we accept the factual allegations in the complaint
as true and interpret those facts and all reasonable inferences drawn
therefrom in a light most favorable to the plaintiff as the nonmoving
party.”). We do not provide an exhaustive summary of the facts in this
case, however, because the issue we are asked to address is one of law
and not dependent on the particular facts.



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                          Opinion of the Court

students to push the lift along the floor to move it from one light to the
next. Unfortunately, the lift toppled over, and the student suffered
serious and life-threatening injuries.
    ¶ 4 In August 2014, the student’s parents, individually and as
parents and guardians of the student, filed suit against the Catholic
Diocese of Salt Lake City and Juan Diego Catholic High School. The
parents alleged that the defendants’ negligence caused the student “to
suffer severe and life-threatening injuries, including a traumatic brain
injury, as a result of a man-lift toppling over while [the student] was
suspended in the air, causing him to be thrown out of the lift and onto
the ground while in class during regular school hours.” In addition to
negligence and vicarious liability claims against both defendants, the
parents sought to bring a claim for loss of filial consortium, seeking
damages for the loss of “consortium, companionship, services, comfort,
society, and attention.”
    ¶ 5 The high school “admit[ted] fault and accept[ed]
responsibility . . . for the injuries that [the student] actually suffered,”
but both defendants moved to dismiss the loss of filial consortium
claim on the ground that Utah does not recognize such a claim. Because
the loss of filial consortium claim is “the only claim[] asserted by the
parents individually,” the defendants also requested that the dismissal
of that claim be certified as final under rule 54(b) of the Utah Rules of
Civil Procedure.
    ¶ 6 Following a December 17, 2014 hearing on the motion to
dismiss the loss of filial consortium claim, as well as supplemental
briefing regarding 54(b) certification, the district court issued an order
granting the motion to dismiss and certifying it as final. On March 20,
2015, the parents appealed to the Utah Supreme Court from that final
order “and any subsidiary rulings or orders leading to final judgment.”
We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j).
                               ANALYSIS
    ¶ 7 The question before us is whether Utah should “judicially
adopt a cause of action that allows the parents of a tortiously injured
[minor] child to recover for loss of the child’s consortium.” Boucher
ex rel. Boucher v. Dixie Med. Ctr., 850 P.2d 1179, 1182–83 (Utah 1992).
This is a question of first impression.
    ¶ 8 Claims for loss of consortium “are based on the recognition of
a legally protected interest in personal relationships.” Id. at 1183. The
cause of action allows a party to recover for damage to the “relational


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                          Opinion of the Court

interest, i.e., the loss of the injured party’s company, society, co-
operation, [and] affection,” that is caused by tortious injury to another
member of the relationship. Id. (alteration in original) (internal
quotation marks omitted). Utah law allows the spouse of a tortiously
injured person to recover for loss of consortium. UTAH CODE § 30-2-11.
Claims for loss of spousal consortium are “derivative from the cause of
action existing in behalf of the injured person.” Id. § 30-2-11(5)(a).
Under our current case law, there is no right for parents to recover for
loss of consortium due to tortious injury to their adult child. Boucher,
850 P.2d at 1187. We have not been asked to revisit that question based
on changes in the law since our decision in Boucher. See infra ¶¶ 12–14.
We are, however, now asked to recognize a right for parents to recover
for loss of consortium due to tortious injury to their minor child. For
reasons set forth below, we adopt such a cause of action for loss of filial
consortium.
    ¶ 9 We first analyze the current state of the law and conclude that
adoption of this cause of action is neither precluded by our decision in
Boucher nor legislatively preempted. We then proceed to adopt a cause
of action allowing parents to recover for loss of consortium due to
tortious injury to their minor child, and we provide some limited
guidance.
                               I. BOUCHER
    ¶ 10 Our decision in Boucher does not preclude adoption of the
cause of action because Boucher is not binding precedent for this case.
Additionally, Boucher’s broad reasoning, which might otherwise argue
against adopting this cause of action, has been largely undercut by the
legislature’s passage of a spousal consortium statute.
    ¶ 11 Boucher is distinguishable because in that case we addressed
the question of whether Utah should “judicially adopt a cause of action
that allows the parents of a tortiously injured adult child to recover for
loss of the child’s consortium.” Boucher ex rel. Boucher v. Dixie Med. Ctr.,
850 P.2d 1179, 1182–83 (Utah 1992) (emphasis added). In Boucher, we
declined to adopt a cause of action for loss of filial consortium due to
tortious injuries to adult children. Id. at 1187. That decision has no
binding precedential value for the question before us today, which
relates to claims involving tortious injuries to minor children. Therefore,
the holding in Boucher does not preclude adoption of the cause of action
that is before us today.
   ¶ 12 Although Boucher’s holding is inapposite, we recognize that
some of the language in the analysis in Boucher is broad enough to be

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construed to apply to claims involving minor children, but much of that
reasoning has been undercut by subsequent developments. In Boucher,
we placed particular importance on the fact that Utah law at the time
“d[id] not support the adoption of a loss of filial consortium claim.” Id.
at 1184. Our analysis of Utah law relied heavily on Hackford v. Utah
Power & Light Co., 740 P.2d 1281 (Utah 1987). Boucher, 850 P.2d at 1184–
86. In Hackford, we reaffirmed precedent interpreting Utah’s Married
Woman’s Act as eliminating the common law right to sue for loss of
spousal consortium. 740 P.2d at 1282, 1286. We concluded that if that
cause of action was “to be created anew in Utah, it should be done by
the legislature.” Id. at 1286–87. In 1997, ten years after Hackford and five
years after Boucher, the legislature accepted that invitation by enacting
Utah Code section 30-2-11, which sets forth a cause of action for loss of
spousal consortium.
    ¶ 13 The enactment of the spousal consortium statute eliminates
the “anomalous results” and “inequitable applications of the
consortium doctrine” that would have resulted from “allowing
recovery for the loss of an adult child’s consortium and denying
recovery for the loss of a spouse’s consortium.” Boucher, 850 P.2d at
1184. Likewise, no such anomalous results inhere in recognizing a claim
for the loss of a minor child’s consortium today, in addition to the claim
for the loss of a spouse’s consortium, which is currently recognized
under Utah law. In Boucher, we also cited to Hackford for the concern
that Utah had not recognized any consortium claim allowing recovery
because of tortious, nonfatal injuries to a third person, but again, this is
no longer the case, due to the legislature’s enacting the spousal
consortium statute. Id. at 1184–85. Additionally, we cited to Hackford for
concerns about the potential for consortium claims to “greatly expand[]
the liability that can flow from one negligent act” and the “potential
adverse impact . . . on the cost and availability of insurance.” Id. at 1185.
The legislature chose to enact the spousal consortium statute despite
those concerns, which suggests that the legislature considered the
importance of the claim and possibility for recovery to outweigh those
concerns. We conclude that the importance of the possibility for parents
to recover for loss of filial consortium due to tortious injury to their
minor child likewise outweighs those concerns.
    ¶ 14 In Boucher, we also addressed and rejected an argument that
because recovery for loss of consortium is available in wrongful death
cases, such recovery should be extended to cases involving nonfatal
injuries; we indicated that we had “rejected a similar argument in
Hackford,” but again, the passage of Utah Code section 30-2-11

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significantly undercuts that analysis. Id. at 1186. The parents in Boucher
argued that since “Utah allows recovery for the loss of society and
affection in wrongful death cases, it is logical to extend this theory of
damages to cases involving nonfatal injuries.” Id. At the time, we
pointed out the distinction that the deceased party in a wrongful death
case had no cause of action and that the legislature specifically
prescribed other parties as having “a right to recover for the loss of the
deceased’s society and affection.” Id. We reasoned that allowing
recovery for loss of consortium only in wrongful death cases and not in
cases involving nonfatal injuries (where the physically injured party
would have a cause of action) prevented the danger of expansive
liability. Id. Since our decision in Boucher, however, the legislature has
chosen to extend that theory of damages to cases involving nonfatal
injuries to spouses. If the concern about the danger of expansive
liability is not sufficient to bar that cause of action, we do not see why it
should bar a cause of action for loss of filial consortium for parents in
cases involving nonfatal injuries to minor children. Thus, Boucher does
not constitute binding precedent preventing adoption of this new cause
of action, and the reasoning in Boucher that might otherwise have
supported not expanding loss of consortium claims in this way has
been largely undercut by subsequent developments in the law.
                   II. UTAH CODE SECTION 30-2-11
     ¶ 15 In addition to adoption of this new cause of action not being
precluded by Boucher, it is also not legislatively preempted by the
passage of Utah Code section 30-2-11 subsequent to Boucher and
Hackford. The defendants argue that “[a]t the same time the legislature
enacted the spousal loss of consortium statute, it could have created a
loss of filial consortium statute.” Because the legislature did not also
enact a loss of filial consortium statute when it created anew a loss of
spousal consortium claim, the defendants conclude that “the legislature
. . . declined to extend loss of consortium claims to permit parents to
recover for filial loss of consortium.” We reject the notion that the
legislature has spoken in the area and supplanted our ability to act.
There is no indication of legislative preemption either by the language
or by the structure of Utah Code section 30-2-11.
    ¶ 16 First, although Boucher was decided five years before passage
of the spousal consortium statute, there is no indication that the
legislature considered and rejected the possibility for recovery for loss
of filial consortium. No express language in the statute precludes that
possibility. Cf. In re Adoption of A.B., 2010 UT 55, ¶ 29, 245 P.3d 711


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(“Express preemption cannot occur through mere silence; it requires an
explicit statement delivered in a clear congressional voice.” (internal
quotation marks omitted)). Even if we accepted the argument that the
legislature’s not having enacted a filial consortium statute subsequent
to our decision in Boucher shows that the legislature rejected such a
cause of action, that conclusion would be limited to the viability of a
cause of action for loss of filial consortium in cases involving tortious
injury to an adult child. Since Boucher did not address loss of filial
consortium in cases involving injury to minor children, we cannot
assume, based on legislative silence, that the legislature “declined to
extend loss of consortium claims” to such situations.
    ¶ 17 Second, nothing about the structure of the statute suggests
that the legislature occupied the field of loss of consortium claims such
as to prevent us from recognizing a common law loss of consortium
claim. Cf. Utah Div. of Consumer Prot. v. Flagship Capital, 2005 UT 76,
¶ 11, 125 P.3d 894 (“[A] federal statute implicitly overrides state law
either when the scope of a statute indicates that Congress intended
federal law to occupy a field exclusively, or when state law is in actual
conflict with federal law.” (citation omitted)). The defendants indicate
that “Utah has two specific, limited statutory causes of action allowing
recovery of consortium damages only for injuries to a spouse and for
injuries resulting in death.” By “injuries resulting in death,” the
defendants seem to be referencing the wrongful death statute in Utah
Code section 78B-3-106. That statute does not explicitly mention loss of
consortium, and it focuses exclusively on recovery in wrongful death
cases, in no way occupying the field of loss of consortium claims for
situations involving nonfatal injuries. As to the spousal consortium
statute, its structure in no way suggests field preemption. That statute,
Utah Code section 30-2-11, appears in the “Property Rights” chapter of
“Title 30 Husband and Wife” in the Utah Code. That structure does not
suggest an overarching statutory scheme encompassing the full extent
of all loss of consortium claims under Utah law. Rather, it shows the
cause of action for loss of spousal consortium as a specific right
adopted in the context of property rights relating to husbands and
wives. Thus, neither the language nor the structure preempts judicial
adoption of a cause of action allowing parents to recover for loss of
consortium due to tortious injury to their minor child.




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                          Opinion of the Court

               III. LOSS OF FILIAL CONSORTIUM DUE
                    TO INJURY TO A MINOR CHILD
   ¶ 18 Having analyzed the current state of Utah law, we now
proceed to adopt a cause of action for parents’ loss of filial consortium
due to tortious injury to their minor child, and we briefly delineate
some parameters of that cause of action.
     ¶ 19 Utah law already recognizes a cause of action for loss of
consortium due to tortious injury to one’s spouse, and we see merit in
extending the right to recovery for loss of consortium to the
relationship between parents and a minor child. Like the relationship
between spouses, the relationship between parents and a minor child is
a legally recognized relationship involving legal obligations. Like the
relationship between spouses, it also tends to be a particularly close
relationship highly valued in society. See, e.g., Ruden v. Parker, 462
N.W.2d 674, 676 (Iowa 1990) (“Minor children, as a general rule, live
with their parents, and during their early years the interaction between
the parent and child is of great importance to the parents, the child and
society as a whole.”); cf. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 38
(1981) (“At stake here is the interest of a parent in the companionship,
care, custody, and management of his or her children. This interest
occupies a unique place in our legal culture, given the centrality of
family life as the focus for personal meaning and responsibility. [F]ar
more precious . . . than property rights, parental rights have been
deemed to be among those essential to the orderly pursuit of happiness
by free men . . . .” (first and second alterations in original) (internal
quotation marks omitted)). Utah law already recognizes a right to
recovery for loss of filial consortium in wrongful death cases. Boucher ex
rel. Boucher v. Dixie Med. Ctr., 850 P.2d 1179, 1187 (Utah 1992) (Stewart,
J., dissenting) (“[A] parent’s cause of action for the loss of the
companionship, society, and affection (i.e., consortium) of a child as a
result of a wrongful death has been deemed so important in Utah that it
is protected by our Constitution and by statute.”). Just as the legislature
saw merit in re-creating the cause of action for loss of spousal
consortium, see supra ¶ 12, we see merit in extending a cause of action
for loss of consortium to parents of a tortiously injured minor child.
    ¶ 20 In adopting this cause of action, we provide some limited
guidance. Like the claim for loss of spousal consortium, the claim for
loss of filial consortium is “derivative from the cause of action existing
in behalf of the injured person.” UTAH CODE § 30-2-11(5). Additionally,
we adopt the cause of action exclusively for cases where the injury


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meets the definition set forth in Utah Code section 30-2-11(1)(a).
However, we do not at this time determine whether the minor child’s
injuries in this case satisfy the statutory definition; instead, we leave
that determination, in the first instance, to the district court. Finally, we
specifically hold that the claim is not cabined to the period of minority.
That is, this cause of action allows parents to recover for the loss of filial
consortium suffered from the time of the injury. 2 Thus, we hold that
parents may recover for loss of filial consortium due to tortious injury
to a minor child in cases where the injury meets the definition set forth
in Utah Code section 30-2-11(1)(a).
                              CONCLUSION
    ¶ 21 We conclude that adoption of a cause of action for parents’
loss of filial consortium due to tortious injury to their minor child is
neither precluded by our decision in Boucher nor legislatively
preempted. For the reasons described above, we hereby adopt a cause
of action allowing parents to recover for loss of filial consortium due to
tortious injury to a minor child in cases where the injury meets the
definition set forth in Utah Code section 30-2-11(1)(a). Accordingly, we
reverse the district court’s dismissal of the loss of filial consortium
claim in this case and remand the matter to the district court for further
proceedings.




   2  We recognize that this period of recovery may be in tension with
our prior decision in Boucher ex rel. Boucher v. Dixie Medical Center, 850
P.2d 1179 (Utah 1992), declining to recognize a cause of action for loss
of filial consortium due to injuries to an adult child. However, because
the case at hand involves a minor child, the question of whether to
revisit Boucher and recognize such a right in cases involving injury to an
adult child is not before us, and we decline to tread there without the
benefit of adversarial briefing.



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