Loss of consortium is a cause of action in torts law which a non-injured married spouse can assert against a tortfeasor whose tortious conduct causes injury to his/her spouse. A claim for loss of consortium seeks to compensate the non-injured spouse for the loss of certain rights and privileges inhering in the marital relationship, including companionship, emotional support, love, and sexual relations.
History of Loss of Consortium Claims
In its original common-law form, a claim for loss of consortium was available only to a husband whose wife was injured by another. Because the husband and wife were deemed one person with all rights vested in the husband, the wife had no enforceable right to the material services of her spouse, and her loss of the husband’s consortium was not a compensable injury.
Starting in the mid-nineteenth century, statutes known as Married Women’s Acts, which have now been passed in all states, abolished the fiction of marital unity. The recognition that the husband and wife had separate rights required a reevaluation of the nature of loss of consortium to assure proper allocation of recovery between the spouses. Because the wife now had a right to recover for her own lost services, a few courts abrogated the cause of action. They reasoned that loss of consortium had been essentially an economic loss and rejected the argument that the emotional elements of the loss were worthy of redress. Most courts, however, continued to recognize consortium as a compensable right because they deemed the emotional elements worthy of protection. Nevertheless, they refused to extend this right to the wife until 1950, when the District of Columbia Circuit decided Hitaffer v. Argonne Company, 183 F.2d 811 (D.C. Cir. 1950), a landmark case establishing the wife’s cause of action for loss of consortium. The Hitaffer opinion heralded the shift in the underlying theory of consortium. No longer was loss of marital services the dominant ground for granting recovery under a loss of consortium claim. The court in Hitaffer recognized loss of “companionship, love, felicity, and sexual relations” as compensable. The court therefore held that a wife, like her husband, had a legally protected interest in the marriage relation.
Today, all states recognize loss of consortium as a cause of action available to either spouse.
Elements of Loss of Consortium Cause of Action
A loss of consortium cause of action has four elements:
- A valid and lawful marriage between the plaintiff and the person injured at the time of the injury;
- A tortious injury to the plaintiff’s spouse;
- Loss of consortium suffered by the plaintiff (which includes not only loss of support or services, but also loss of love, companionship, affection, sexual relations, solace, etc.); and
- The loss was proximately caused by the defendant’s act.”
In vast majority of the jurisdictions, loss of consortium claim of the non-injured spouse is considered a derivative claim that is dependent on the existence of a cause of action by the injured spouse for the underlying injury. In those jurisdictions, therefore, the non-injured spouse cannot assert a loss of consortium claim on its own without the accompanying claim of the injured spouse asserted therewith. Further, all elements of the injured spouse’s claim must be proven before recovery is permitted to the non-injured spouse for loss of consortium.
Recoverable Damages for Loss of Consortium
Damages recoverable in a loss of consortium action generally include non-economic compensatory damages for loss of companionship and affection through the time of the trial and also for any future loss of companionship and affection that is sufficiently certain to occur. For instance, where there is sufficient evidence that plaintiff’s spouse is permanently disabled as a result of a defendant’s wrongdoing, future (post-trial) loss of companionship and affection is sufficiently certain to permit an award of prospective damages.
In many jurisdictions, the non-injured spouse cannot recover punitive damages under his/her loss of consortium claim. See, e.g., Alabama – Fireman’s Fund American Insurance Co. v. Coleman, 394 So.2d 334 (1980); Florida – Moran v. Stephens, 265 So.2d 379 (1972); Illinois – Hammond v. North America Asbestos Corp., 97 Ill. 2d 195 (1983); South Carolina – Hughey v. Ausborn, 249 S.C. 470 (1967).