Loss of consortium is the loss of moral support, companionship, or intimacy following an injury to a person’s spouse or registered domestic partner.
In California, a claim of loss of consortium can be brought by the spouse of a person who was injured by the illegal conduct of a third party. The cause of action arises when a third party negligently or intentionally injures the plaintiff’s spouse such that the plaintiff no longer enjoys the injured spouse’s conjugal companionship, society, and sexual relations (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 408.)
A spouse of an injured person must be able to establish the following elements to prove a loss of consortium lawsuit: Plaintiff’s spouse or partner was injured by another person’s negligent or illegal act.
- Injured person and the plaintiff were lawfully married or had a valid registered domestic partnership at the time of the injury took place.
• Plaintiff suffered the loss of his spouse’s or partner’s consortium.
• The loss was a result of the defendant’s illegal act.
An Injury to the Plaintiff’s Spouse
The plaintiff must prove that the defendant committed a wrongful act against his spouse or domestic partner. Such acts can include:
• Gross negligence
• Intentional tort
• Strict liability under products liability laws or dog bite laws
Loss of consortium can be invoked for any of the below mentioned:
- Loss of the enjoyment of the marriage
• Loss of moral support
• Loss of the ability to have children
• Loss or reduction of enjoyment in marital relations
• Loss of financial support
• Loss of emotional comfort and support
What Damages Can Be Recovered From Loss of Consortium?
Loss of consortium falls under the category of non-economic damages, this means that the loss is intangible, and can’t be proven through documentation. Because of the nature of the injury, spouses in loss of consortium cases will be asked about their marriages before the injury. While determining the amount of compensation the courts can consider the stability of the marriage, each spouse’s life expectancy and the degree to which the benefits of the marriage were lost.
According to CACI 3920, the spouse of the injured person can recover damages to reasonably compensate for the past and future loss of the injured person’s companionship and services. The damages include:
• The loss of companionship, love, comfort, protection, care, assistance, society, affection, and moral support.
• The loss of the ability to have children or the enjoyment of sexual relations.
• The loss of services, including the injured spouse’s support in running the home.
Loss of consortium doesn’t include:
• A recovery for financial assistance that the uninjured spouse has provided.
• Compensation for services the uninjured spouse has rendered, such as nursing the injured spouse.
• Compensation for the loss of earnings for the uninjured spouse who has taken time off work to care for the injured spouse.
A loss of consortium recovery will be correspondingly reduced in case the injured spouse was contributorily negligent. This means that in case the injured spouse’s negligence was partially caused the injury, then the other spouse’s compensation for loss of consortium will be reduced correspondingly.