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Loss of Consortium
What is Loss of Consortium?
California law defines "loss of consortium" as the loss of companionship, moral support, and intimacy after a wrongful injury has been sustained by a spouse or domestic partner.
The plaintiff is entitled to recover compensatory damages for loss of consortium. Compensatory damages compensate for a spouse or partner's loss of companionship and intimacy.
The recovery process does not include economic losses such as the disabled spouse's lost earning capacity or medical expenses incurred by either spouse. A loss of consortium claim is similar to one for pain and suffering in California.
To prove "loss of consortium," a spouse (or registered domestic partner) must establish four elements: The spouse or partner was injured as a result of another's negligence. There was a valid domestic partnership or marriage between the plaintiff and the injured person at the time the injury occurred. Loss of consortium was suffered by the plaintiff. The defendant was at fault for this loss.
Loss Of Consortium
The concept of loss of consortium under California law is defined as "The end of love, companionship, comfort, care, assistance, protection, affection, and society as well as the end of sexual relations or the end of the ability to have children (if applicable).
Damages A Spouse Can Recover
If a plaintiff is divorced from their spouse in California, they can recover "non-economic" damages up to the amount that the jury determines is reasonable. California law defines “non-economic damages” as: “[S]ubjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.”
Loss of consortium damages do not have a fixed standard. A larger award is likely to result from a more serious and long-lasting injury.
Damages Not Recoverable
The plaintiff may not recover for loss of consortium damages the following: financial support from the injured spouse; personal services, such as nursing care, provided or to be provided to the injured spouse by the plaintiff; loss of earnings sustained by the plaintiff from giving up employment to care for the injured spouse; or the cost of obtaining household services to replace the services the injured spouse would have provided.
Permanent Injury to Spouse
A spouse who suffers a permanent injury can seek damages that can last until the end of their lives, regardless of whose life expectancy is shorter. To measure life expectancy, we measure it prior to the spouse's injury.
Therefore, the spouses won't be punished for the shorter life expectancy as a result of the injury. Despite the fact that mesothelioma victims have a short life expectancy, a jury in Los Angeles awarded the wife of a victim $4 million in damages for future loss of consortium.
Elements of Loss of Consortium
In California, a plaintiff seeking loss of consortium must prove four things to succeed: that the marriage or domestic partnership is valid and lawful, that the plaintiff's spouse or partner was injured by the injury, that the plaintiff experienced loss of consortium, and that the loss of consortium was the result of the spouse or partner's injury.
Valid and Legal Marriage
The plaintiff must generally establish that he or she was married to or registered domestically with the defendant at the time of injury. The plaintiff will usually not have a case if the injured spouse happened before the parties got married / registered (or at the end of their relationship). A couple's wrongful conduct may have existed prior to their marriage, but it may only be discovered or discoverable after their union. A spouse or registered partner is only made aware of the injury and/or the resultant harm after the injury and/or harm are inflicted upon them.
Injury To The Plaintiff’s Spouse
The plaintiff must prove that someone caused his or her spouse or domestic partner a tortious injury (wrongful act) in order to prevail on a claim for loss of consortium. There are different types of negligent acts, including gross negligence, recklessness, intentional tort (wrongful act), and strict liability (under California laws such as those that govern products liability and dog bite cases).
Plaintiff Suffers Loss Of Consortium
In an action for loss of consortium, proving damages can be the most challenging part of the case, and it can also be the most uncomfortable. Despite involving the plaintiff's losses, this aspect of the case typically focuses on the injured spouse's inability to do certain tasks or changes in behavior. It can be uncomfortable to discuss how your spouse's behavior has altered your relationship, especially if you claim you have lost sex.
Spouses Injury Caused Loss
A plaintiff still has to prove that the loss of their spouse's consortium was caused by the wrongful act of the defendant. There is no damages available in a California loss of consortium lawsuit if the plaintiff's loss of consortium was caused by an extramarital affair.