Loss Of Consortium Damages.

Your spouse may be entitled to damages as well.

California law allows husbands and wives to recover damages for "loss of consortium."

In the typical action for loss of consortium, the non-injured spouse will sue the defendant for damages resulting from his, or her, inability to enjoy the same love, affection and companionship that he/she did prior to the 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.

Part of loss of consortium damages entails those losses suffered as a result of decreased or limited sexual activity between spouses. However, loss of consortium damages covers much more. Basically, the damages seek to compensate the non-injured spouse for the injury's effects on previously existing spousal functions. As such, a claim for loss of consortium usually compensates the claimant spouse for loss or deprivation of the following:

  • Services, e.g., household chores, caring for children;
  • Love;
  • Society;
  • Affection;
  • Companionship;
  • Emotional support and care;
  • Comfort; as well as,
  • Sexual relations.

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.  In other words, consortium is not limited to the couple's sexual relations, they largely include all those aspects listed above. 

Keep in mind that loss of consortium damages are considered "non-economic" damages.  These damages do not involve an exact monetary loss, nor possess an objective cash value. As such, in a trial setting an award for loss of consortium is usually 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.  Loss of consortium damages are generally limited to these types of cases, and not cases involving “minor” physical injuries to the injured spouse, although the law does allow such claims.

In California, a valid marriage license at the time of the injury is a prerequisite to any claim for loss of consortium.  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..."

This means, that aside from the actual victim's personal injury case against the party, or parties, liable for his/her injuries, the victim's spouse can also sue the liable party, or parties, for those losses listed in the jury instruction. The spouse's case would be a claim for compensation on the loss of consortium he/she suffered that resulted from the victim's injuries.

Juries & Damages for Loss of Consortium

It is important to know that juries generally do not like a spouse who was not injured who is trying to collect damages based on minor physical injuries suffered exclusively by their husband/wife.  Thus, even though this is an area for potential damages in any injury case where the injured individual is married, many lawyers will not ask for loss of consortium damages on smaller cases for fear of a backlash against the uninjured spouse.

However, if it is a situation where there is a very serious injury, then the attorney may ask, and it is appropriate, for loss of consortium damages.

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