                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                        ASSIGNED ON BRIEFS JULY 11, 2001

 LINDSAY TAYLOR, RACHEL TAYLOR AND BRADFORD TAYLOR v.
  AL BEARD AND SOUTHEASTERN MOTOR FREIGHT COMPANY

                  Direct Appeal from the Circuit Court for Shelby County
                 No. 84505 T.D.; The Honorable Robert L. Childers, Judge



                  No. W2001-00347-COA-R3-CV - Filed November 5, 2001


This appeal involves a grant of summary judgment, which dismissed loss of parental consortium
claims brought by the children of a parent injured in an automobile accident. The children seek
review of existing Tennessee precedent that fails to recognize loss of parental consortium causes of
action resulting from the personal injury of a parent. For the following reasons, we affirm the
decision of the trial court and decline to create a new cause of action.


      Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
KIRBY LILLARD, J., joined.

Larry E. Parrish, Memphis, TN, for Appellants

Tim Wade Hellen, Memphis, TN, for Appellees

                                            OPINION

                                 Facts and Procedural History

       On October 17, 1995, Al Beard collided with another vehicle while operating a truck for his
employer, Southeastern Motor Freight Company, Inc. (Al Beard and Southeastern Motor Freight
Company, Inc. will hereinafter be jointly referred to as “Appellees.”) The collision resulted in an
impact with a third vehicle occupied by Pamela Taylor and her daughter, Lindsay Taylor. The
Taylor’s vehicle, in turn, struck a fourth vehicle and exited the roadway. Lindsay and Pamela Taylor
suffered injuries in the accident.

       The procedural background of this case is somewhat peculiar. After negotiations, Appellees
and Lindsay Taylor filed a Joint Petition for Approval of Minor’s Settlement dated January 17, 1997
with the court, seeking ratification of a settlement agreement reached between Appellees and Lindsay
Taylor. However, approximately one year later, before a settlement had been approved, a First
Amendment to Joint Petition for Approval of Minor’s Settlement (“Amendment”) was filed by
Lindsay Taylor. The Amendment substantially altered the course of litigation.

        Although Lindsay Taylor was the only plaintiff in the original petition, the Amendment
sought to add several new parties to the litigation including Lindsay Taylor’s siblings, Rachel Taylor
and Bradford Taylor ( Lindsay, Rachel and Bradford Taylor will hereinafter be jointly referred to as
“Appellants.”) The Amendment also sought to rename the original petition “Complaint for Personal
Injury and Loss of Services” and demanded a jury. Further, consistent with the new name, the
Amendment added new causes of action. The added cause of action at issue in this appeal concerns
consortium damages; the Appellants demanded damages for loss of consortium resulting from the
personal injuries suffered by their mother, Pamela Taylor, in the accident.

        Appellees filed a motion to quash the Amendment and dismiss the original petition. After
the court heard arguments on the matter, the court entered an Order Substituting Complaint for Joint
Petition. Pursuant to the court’s order, the original petition was deemed dismissed with the
Amendment taking its place. Further, the court ordered that the Amendment should be considered
a complaint as opposed to part of the original joint petition.

        Appellees filed an answer, a motion to dismiss the claims of Rachel Taylor and Bradford
Taylor, and a motion for summary judgment as to the claims of all Appellants for loss of consortium
stemming from their mother’s personal injuries. The court granted Appellees’ motion for summary
judgment and the case proceeded to trial. A jury returned a verdict in favor of Lindsay Taylor and
awarded her $411,320.00 on the remaining claims.

        On appeal, Appellants allege that the trial court erred in granting Appellee’s motion for
summary judgment, which dismissed Appellants’ claims for loss of parental consortium. This Court
has been asked to determine whether a claim for loss of consortium brought by a child for personal
injuries to the child’s parent should be recognized under Tennessee law. Appellants argue that the
recent evolution of policies guiding Tennessee law reflects a need for this Court to extend
consortium damages to the children of parents who suffer personal injury. We disagree and, for the
following reasons, affirm the judgment below.

                                       Standard of Review

        Summary judgment is appropriate if the movant demonstrates that no genuine issues of
material fact exist and that he is entitled to a judgment as a matter of law. See TENN. R. CIV . P.
56.03. We must take the strongest view of the evidence in favor of the nonmoving party, allowing
all reasonable inferences in his favor and discarding all countervailing evidence. See Shadrick v.
Coker, 963 S.W.2d 726, 731 (Tenn. 1998) (citing Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn.
1993)). With regard to questions of law, we review the record de novo with no presumption of
correctness of the judgment below. See TENN. R. APP . P. 13(d); Bain v. Wells, 936 S.W.2d 618, 622


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(Tenn. 1997). Because this appeal involves only an issue of law, we will conduct a de novo review
of the issue set forth with no presumption of correctness.

                                                 Law and Analysis

        This Court has previously addressed the issue of whether a cause of action for loss of
consortium exists for children whose parents are injured by the tortious acts of a third party. In Still
v. Baptist Hospital, 755 S.W.2d 807, 808 (Tenn. Ct. App. 1988), this Court held that claims for loss
of parental consortium are, and always have been, unknown to Tennessee’s common law.
Accordingly, for this Court to hold that such a cause of action now exists, we would be forced to
overrule our decision in Still and create the cause of action ourselves.

        Because a new cause of action has been requested, our analysis must begin with a discussion
of this Court’s role in defining the public policy of Tennessee. We acknowledge that a blind
following of arcane principles of common law simply because of stare decisis should not be
considered the mission of this Court. However, we must also acknowledge that Appellants’ request
is not aimed at removing obsolete law from our precedent or refining existing principles of law.
Rather, Appellants seek the judicial creation of new law through a declaration of public policy not
yet asserted by our General Assembly.

       In Smith v. Gore, 728 S.W.2d 738, 747 (Tenn. 1987), the Tennessee Supreme Court
recognized the difference between mere development of the common law and “positively declaring
the public policy of the state.” The distinction is even more apparent when the Court must
“determine which of several competing public policies represents the most compelling and
controlling public policy for this State.” Id. When such indefiniteness surrounds an issue and
proponents rest upon public policy in asking this Court to define the law, we must be aware of
possible “usurpation of the powers of the legislature.” Id. (quoting Cavender v. Hewitt, 239 S.W.
767, 768 (Tenn. 1921)).

         This Court, in Still, followed these principles when refusing to create a common law claim
for loss of parental consortium. We stated that deference to the legislature is more likely appropriate
where far-reaching consequences would result from the creation of new law. Still, 755 S.W.2d at
812. We find no reason to now change our stance. The policies suggested by Appellants still remain
highly debatable1 and our decision to adopt them as the public policy of this State would indeed
have considerable consequences.

       Appellants argue that two decisions of the Tennessee Supreme Court handed down since Still
have granted this Court the prerogative to change the indigenous common law of Tennessee.
However, we find this argument to be without merit. In both cases cited by Appellants, Hanover v.
Ruch, 809 S.W.2d 893 (Tenn. 1991) and Dupuis v. Hand, 814 S.W.2d 340 (Tenn. 1991), our
Supreme Court merely followed the pronouncements of public policy as stated by our General

       1
           Appellan ts asserts that only 16 states allow claims for loss of parental consortium in personal injury actions.

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Assembly. Neither case suggests that the intermediate appellate courts in this state have the
authority to create brand new causes of action on grounds of public policy.

        Both Hanover and Dupuis involved common law torts that the general assembly had chosen
to legislatively abolish. However, because of the constitutional limitations placed upon the general
assembly, claims filed before the effective date of the legislation were not affected. When cases filed
before the effective date reached our Supreme Court, the court decided that the laws passed by the
general assembly could properly be considered the public policy of this State and chose to judicially
extinguish previous precedent allowing the claims. Thus, these cases in no way grant this Court a
license to create new law.

        Appellants further argue that the Tennessee Supreme Court in Jordan v. Baptist Three Rivers
Hospital, 984 S.W.2d 593 (Tenn. 1999) opened the door for this Court to examine the need for a
cause of action for loss of parental consortium where a personal injury has occurred. We also find
this argument to be without merit. Jordan dealt with an expansion of consortium damages under
Tennessee’s wrongful death statute, not under the common law. However, in dicta, the court stated,
“We express no opinion as to whether the loss of parental consortium may be recovered in personal
injury actions in which the parent or parents survive. That issue will be addressed in an appropriate
case.” Id. 595-96. We fail to see how such dicta creates the authority for this intermediate appellate
court to create new law.

          Believing our role to be limited in this cause, we also fail to see the utility in reassessing
the policy considerations we previously contemplated in Still. We stand by our previous assessment
in again refusing to create a new cause of action for loss of parental consortium in personal injury
actions.

                                             Conclusion

       For all of the aforementioned reasons, we affirm the judgment of the trial court. Costs on
appeal are taxed to Appellants, Lindsay Taylor, Rachel Taylor and Bradford Taylor, for which
execution may issue if necessary.




                                                        ___________________________________
                                                        ALAN E. HIGHERS, JUDGE




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