Although the law varies among states, most jurisdictions permit husbands and wives to recover damages for “loss of consortium.” To illustrate, consider the example where Holden is severely injured by a negligent driver. In a subsequent personal injury lawsuit, Holden will likely sue the driver for damages resulting from his physical injuries. In addition, in those jurisdictions that permit it, Holden’s spouse may also sue the driver to compensate her for the loss of consortium she suffers as a result of Holden’s injury.
In the typical action for loss of consortium, the non-injured spouse will sue the defendant for damages resulting from her inability to enjoy the same love, affection and companionship that she did prior to her spouse’s injury. This legal claim tends to arise after one spouse is seriously injured or killed by a third party’s negligent or intentional acts.
Loss of Consortium: The Basics
Conventional wisdom considers a “loss of consortium” to entail those losses suffered as a result of decreased or limited sexual activity between spouses. In reality, however, the term covers much more. Loss of consortium damages seeks to compensate the non-injured spouse for the injury’s effects on previously existing spousal functions. As such, a claim for loss of consortium typically compensates the claimant spouse for loss or deprivation of the following:
- Emotional support and ca
- Sexual relations
- Services, e.g., household chores, caring for small children
In other words, even though a claim for loss of consortium may include a decrease or change in sexual activity between spouses, the claim is usually much broader; i.e., consortium is not limited to the couple’s sexual relations.
Loss of consortium damages are considered “non-economic” damages; i.e., they do not involve a precise monetary loss and possess no objective cash value. As such, an award for loss of consortium is typically left to the discretion of the judge or jury. Legal experts maintain that these damages will most likely be awarded in cases involving a spouse who has died or who has been the victim of a severe injury.
According to New York law, consortium represents each spouse’s interest in the continuation of the marital relationship, as it existed at the beginning of the marriage. Furthermore, in New York, an individual will not recover for loss of consortium if the act causing injury occurred prior to the marriage.
In California, a valid marriage is a prerequisite to any claim for loss of consortium. According to a California court, “Absent such a relationship, the right does not exist.” Further, California jury instructions explicitly define the loss of consortium as “loss of [the spouse's] love, companionship, comfort, affection, society, solace or moral support; any loss or enjoyment of sexual relations or the ability to have children or any loss of [the spouse's] physical assistance in the operation and maintenance of the home…”