Firm Newsletter - February 2015

Photo by m_a_r_t_i_n/iStock / Getty Images
Photo by m_a_r_t_i_n/iStock / Getty Images

Loss of Consortium in Personal Injury Suits

One of the damages Texas provides recovery for in a lawsuit is for loss of consortium. This developed from English common law, which would provide a man compensation for the damage or loss of his property, since, at that time, a wife was considered a man’s proper­ty(!). At that time, a wife had no claim for her own injury and no claim for an injury to her husband. Courts in the United States began to recognize in the 1800’s, with the passage of Married Women’s Property Acts, that the claim should also be available to wives, but it took many years to get to where we are today.

Black’s Law Dictionary defines consortium as the benefits that one person, especially a spouse, is entitled to receive from another, in­cluding companionship, cooperation, affection, aid, and (between spouses) sexual relations. Because damages for loss of consortium are special damages, they must be specifically pled.

One important question is who is entitled to recover for loss of consortium. The Texas Su­preme Court has held that either spouse has a cause of action for loss of consortium that might arise as a result of an injury caused to the other spouse by a third-party tortfeasor’s negligence. In a personal-injury suit, a plaintiff can recover damages for loss of consortium both in the past and in the future. Addition­ally, children and parents can recover for loss of consortium. A claim for loss of consortium is derivative of the injured person’s claim.

A child can recover for loss of consortium when the parent suffered serious, perma­nent, and disabling injury or death. Some fac­tors a jury may take into consideration when determining the amount of damages include the severity of the injury to the parent and its effect on the parent-child relationship, the child’s age and emotional and physical charac­teristics, and whether other consortium-giv­ing relationships are available to the child.

Prior to 2003, parents suing under the Wrong­ful Death Act would recover for loss of con­sortium only for the death of a child born alive. However, in 2003 the Texas Legislature amended the Wrongful Death Act to permit lawsuits for the death of an unborn child, there­fore permitting parents to recover for loss of consortium for the death of an unborn child.

There are nonetheless some people who cannot recover damages for loss of consortium. Siblings and step-parents of a deceased party cannot re­cover for loss of consortium. Also, parents can­not recover for loss of consortium resulting from a nonfatal injury to a child. Lastly, even though a pet may be considered a beloved family member, pet owners cannot recover for loss of consortium resulting from the negligent death of a pet.

It is important to note that there are some de­fenses that can reduce or completely eliminate a claim for loss of consortium. One such de­fense is any defense to the underlying injured person’s claim, such as contributory negligence, that would bar or reduce the recovery of the injured person’s claim. For example, a child must prove that the defendant is liable for the personal injuries suffered by her parent, and any defense that tends to constrict or exclude the defendant’s liability to the injured parent will have the same effect on the child’s consor­tium action. In a 2012 decision from the El Paso Court of Appeals, the court held that a child’s consortium claim was extinguished because her father’s underlying claim was dismissed with prejudice and the statute of limitations ran on the claim. Another defense to loss of consortium claims is marital discord. Any evi­dence of marital discord is relevant to the claim and can help the jury put a numerical value of the damages, if any, for loss of consortium.

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