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Taylor v. Beard3/3/2003
s to create a cause of action with potentially far-reaching social and legal consequences in an area that we have consistently left to legislative discretion. This is an issue of public policy and interest balancing in which the legislature has involved itself before, i.e., loss of spousal consortium, Tenn. Code Ann. ยง 25-1-102, and we believe it is particularly appropriate for this Court to defer and leave this issue to the discretion of the legislature. Faced with a similar challenge, the Oregon Court of Appeals articulated a view with which we agree:
As we view it, the legislature's decision in allowing wrongful death actions for the benefit of children while not authorizing other kinds of actions is precisely the kind of policy and interest balancing to which this court should defer. We think that this is particularly true where, as here, in addition to the legislature's limited acceptance of the right of children to bring suit where their relationship with their parent or parents has suffered injury , the legislature has also thoroughly occupied itself in the area of the family by determining the availability of actions for loss of consortium for both spouses. Where the legislature has thoroughly involved itself in an area of the law and where its decisions in that area appear to set discreet boundaries, we think that it should be left to the legislature to change those boundaries, if they are to be changed, and to define the new ones. This is not to say that there may not be some justice in the abstract sense in permitting recovery in cases such as the one before us. It is to say, however, that there are other powers than ours which are involved in the establishment of causes of action in Oregon and that the question involved in this case should be submitted to those other powers. Norwest v. Presbyterian Intercommunity Hosp., 631 P.2d 1377, 1380 (Ore. App. Ct. 1981) (citation omitted) (emphasis added).
Accordingly, we decline to create a common law cause of action for loss of parental consortium in personal injury cases.
Finally, the appellants have raised for the first time in the appellate courts constitutional issues of due process and equal protection. These issues were not raised in the trial court, and the Attorney General was not notified and did not participate. The appellants have, therefore, waived these arguments on appeal. See Civil Serv. Merit Bd. v. Burson, 816 S.W.2d 725 (Tenn. 1991).
Conclusion
We decline to adopt a common law cause of action for loss of parental consortium in personal injury cases and hold that the issue of whether to create such a cause of action is a matter of legislative discretion. We therefore affirm the Court of Appeals' judgment. Costs of the appeal are taxed to the appellants, Lindsay Taylor, Rachel Taylor, and Bradford Taylor, and their surety, for which execution may issue if necessary.
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