December 28, 2021
Loss of consortium affords a family member the opportunity to recover compensatory damages for loss of benefits of a family relationship. This cause of action, most often arises when a spouse is seeking damages for their own injury that resulted from their spouse or partner’s passing or permanent personal injuries.
Damages for a loss of consortium claim are most often litigated in the context of a legal marriage or partnership; however, there are instances where such damages can be pursued in a parent-child relationship, or in instances where there is a dependent adult.
A California civil cause of action in which an injured spouse or dependent seeks out damages for their partner, spouse of family member’s personal injuries, can best be understood by looking at the jury instructions:
“CACI 3920. Loss of Consortium (Noneconomic Damages).
“… [Name of Plaintiff] … claims that [he/she/nonbinary pronoun] has been harmed by the injury to [his/her/nonbinary pronoun] [husband/wife]. If you decide that [Name of Injured Spouse] has proved [his/her/nonbinary pronoun] claim against [Name of Defendant], you also must decide how much money, if any, will reasonably compensate [Name of Plaintiff] for loss of [his/her/nonbinary pronoun] [husband/wife]’s companionship and services, including:
[Name of Plaintiff] may recover for harm [he/she/nonbinary pronoun] proves [he/she/nonbinary pronoun] has suffered to date and for harm [he/she/nonbinary pronoun] is reasonably certain to suffer in the future…”
While CACI 3920 is a jury instruction directed to a marital relationship, there are instances in which such damages can be sought outside of a legal marriage, most commonly in a parent-child relationship or other dependent dynamic.
What is key in a loss of consortium claim is that the spouse or individual whom sustained injuries is a named plaintiff themselves, as their claim of loss of consortium is specific and distinct to them. These claims are rare as the spouse, partner or other plaintiff whom was injured by the tortfeasor directly must have sustained permanent or fatal injuries so drastic that they dynamics between the plaintiffs and their relationship has permanently changed.
Damages for loss of consortium can be challenging for a jury to quantify as it includes both economic damages and non-economic damages. Damages for loss of consortium includes compensation for loss of support and services, as well as damages to compensate for the loss of love, companionship, affection, comfort, sexual relations, mental support, emotional support and society.
Pricing the priceless: here a jury is tasked with compensating an individual for priceless injuries such as a wrongful death or the value of a person’s lost support and presence. The jury is placing a monetary value on the moral support and companionship which these family members provide each other in times of triumph, times of despair and the deprivation of such support while operating and maintaining a family.
The natural response is to assume such support and companionship is unquantifiable and priceless, which many would agree; however, there are no other legal options available for the injured party. Our legal system only affords the opportunity for a monetary award, to compensate the permanently injured plaintiff whom must continue on in the absence of their family member’s life, support, affection, presence and comfort.