"…in California each spouse has a cause of action for loss of consortium…caused by a negligent or intentional injury to the other spouse by a third party". (Rodriguez v. Bethlehem Steel Corp.Civil (1974) 12 Cal.3d 382, 408. Code section 1431.2(b)(2) ["…the term 'non-economic damages' means subjective, non-monetary losses including...loss of consortium..."]. A registered domestic partner may also bring a claim for loss of consortium. [Family Code Sections 297(a) and 297.5(a)].
the law allows reasonable
compensation to a husband or wife for his or her losses that due to his
spouse’s injuries. (Carlson
(1984) 151 Cal.App.3d 598, 602).
consortium involves for example:
(1) You having to deal with
an injured spouse who was and/or is
more irritable, touchy and moody after the incident;
(2) You having to do more
work around the house;
(3) Present and likely
future financial strains due to
medical bills and your spouse's reduced earnings;
(4) Your spouse being less
able to help and counsel and encourage you with your problems,
(5) Reduction in the
quality or enjoyment of your marriage;
Reduction in the quality and/or quantity of sexual relations (if you
choose to pursue this part of the claim);
(7) Not able or
less able to do certain things together.
Loss of consortium includes the difficulties, hardship and suffering of the spouse of the injured person.
"…the loss is 'principally a form of mental suffering,' … [and] the jury [is] to exercise sound judgment in fixing compensation. (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 933).
The categories or types of losses for loss of consortium include:
"…deprivation of a husband's [or wife’s] physical assistance in operating and maintaining the home…”
See Ledger v. Tippitt (1985) 164 Cal.App.3d 625, 633
Meighan v. Shore (1995) 34 Cal.App.4th 1025, 1034
Married Couples Only:
Loss of consortium damages are only available to married spouses, not to unmarried cohabitants, even if they have a marriage-like relationship (Elden v. Sheldon (1988) 46 Cal.3d 267, 277).
Exception:Registered domestic partners may present a claim for loss of consortium. [Family Code Sections 297(a) and 297.5(a)].
Parent and Child re:
Wrongful Death cases: Certain economic, mental and emotional
losses for wrongful death of a parent or child are recoverable, but not
"loss of parental consortium"
or "loss of child consortium."
Comparative Negligence of Fault of Injured Spouse:
Damages for loss of consortium are reduced by percentage of comparative
fault or comparative
negligence of the injured spouse. (Craddock v. Kmart
Cal.App.4th 1300, 1309-1310); Hernandez
v. Badger Construction Equipment Co. (1994)
Under California law, you, as the husband or wife of your injured spouse, are also considered to have sustained damages; therefore, you are entitled to monetary compensation as a result thereof even if you were not physically injured in this same incident.
Value of Claim:
The value of such "Loss of Consortium" is oftentimes difficult to determine. Nevertheless, such damages can be ascertained with sufficient particularity to render an award of monetary damages.
If a lawsuit
is filed and your case is litigated, you, along with your injured
spouse, will be
questioned about the loss of consortium claim.
Of course, a loss of consortium claim must, to some degree, compare your marriage before versus after the incident. The defense may potentially ask about prior marital difficulties or separations, if any, before the incident.
Can you or should you
present such a claim?
Due to the claim as constituting an invasion of private matters, many elect to not pursue a loss of consortium claim.
Related article: Litigation Stress
"[C]onsortium includes 'conjugal society, comfort, affection, and companionship.' An important aspect of consortium is thus the moral support each spouse gives the other through the triumph and despair of life. A severely disabled husband may well need all the emotional strength he has just to survive the shock of his injury, make the agonizing adjustment to his new and drastically restricted world, and preserve his mental health through the long years of frustration ahead. He will often turn inwards, demanding more solace for himself than he can give to others. Accordingly, the spouse of such a man cannot expect him to share the same concern for her problems that she experienced before his accident. As several of the cases have put it, she is transformed from a happy wife into a lonely nurse. Yet she is entitled to enjoy the companionship and moral support that marriage provides no less than its sexual side, and in both cases no less than her husband. If she is deprived of either by reason of a negligent injury to her husband, the loss is hers alone. 'In the light of the foregoing the danger of double recovery is not real for presumably the husband is recovering for his own injuries and she is recovering for injury done to herself by the loss of his companionship. There is no duplication, instead, this is an example of a single tortuous act which harms two people by virtue of their relationship to each other.'" [12 Cal.3d at 405-406.]