Go to Attorney Home Page

Go to Personal Injury Practice

LOSS OF CONSORTIUM  LAW CALIFORNIA

"…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)].

Thus, the law allows reasonable compensation to a husband or wife for his or her losses that due to his or her spouse’s injuries.  (Carlson v. Wald (1984) 151 Cal.App.3d 598, 602).

Examples:

Loss of 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, stresses, and difficulties;

(5) Reduction in the quality or enjoyment of your marriage;

(6) 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.


Suffering Damages:

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).

Loss of consortium damages are general (non-economic) dam­ages, even though they contain economic elements of loss of services. Ledger v. Tippitt (1985) 164 Cal. App 3d 625.

But economic damages for the value of the non-injured spouse performing nursing care for the injured spouse are only recoverable in the injured spouse's claim. (Rodriguez v. Bethlehem Steel Corp.Civil  (1974) 12 Cal.3d 382).


The categories or types of losses for loss of consortium include:

 1. Loss of Affection

 2. Loss of Comfort

 3. Loss of Solace

 4.  Loss of Moral Support  [See  Note #1  below]

 5.  Loss of Conjugal Society and Sexual Relations

 6.  Loss of Companionship

 7.  Loss of Love

 8.  Loss of Services Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 409, fn. 31 (includes
                    "…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 Corp. (2001) 89 Cal.App.4th 1300, 1309-1310); Hernandez v. Badger Construction Equipment Co. (1994) 28 Cal.App.4th 1791, 1810-1811.


Conclusion:

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.

Litigation:

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. 

Generally, the more serious the injury to the spouse, the more the other spouse is inclined to pursue a loss of consortium claim, and the more such a claim makes good strategic and financial sense.  Further, to be a viable claim, the injury to the injured spouse injuries must be "sufficiently severe and disabling" and more than "superficially or temporarily impaired." (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 932-933).

Related article: Litigation Stress

Note #1: The Nature of a Loss of Consortium claim:

The California Supreme Court, in Rodriquez v. Bethlehem Steel (1974) 12 Cal.3d 382, aptly described practically the loss of moral support to the spouse:

"[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.]

Author: M.B. Tozer Esq.

Copyright Notice

  Disclaimer

2013, 2015

Go to Attorney Home Page

Go to Personal Injury Practice