An action for loss of consortium occurs when a person dies, is severely disabled, or permanently incapacitated because of the negligence of another person who can be called a tortfeasor. Generally, in a tort action, the person injured is awarded the damages. In loss of consortium actions, the family of the tort victim who suffered loss should be compensated.
When a husband or wife suffers a grievous injury or death, the other spouse also suffers loss of love and companionship. Loss of consortium would apply if an accident left a husband or wife unable to perform duties that the spouse relied upon. Loss of consortium can be sought when normal romantic and recreational lives of the spouses are affected by an accident caused by the negligence of a tortfeasor. A spouse can only seek loss of consortium if the other spouse had a cause of action in the case. The concept of damages for loss of consortium is a vague and subjective one left largely to the discretion of a jury. It is intended to compensate the spouse of an injured person for past and future loss of such intangibles as love, sex, companionship, society, comfort, solace, and for help in performing one’s tasks around the household[i].
When there is substantial, indisputable evidence that is not rebutted that shows a loss of consortium, there should be an award of compensatory damages[ii]. Children of an injured or dead person can also seek loss of consortium. They can recover damages for the past and future losses of their lost parent[iii].
In certain states, loss of consortium can be awarded to parents because they are entitled to recover damages for the loss of love, affection and companionship, as well as for grief endured as a result of the wrongful death of a child[iv]. However, courts depend upon the relationship between the parent and the child or children before awarding compensatory damages[v].
The jury depends on the substantial evidence provided by a plaintiff on the loss suffered by the plaintiff because of the injury caused by a third party’s negligence[vi]. The extent of a claim can be determined by a jury by taking into consideration the closeness of the relationship between persons in the family. The severity of the injury and length of the illness is also taken into consideration by the jury before awarding damages[vii].
[i] Tavakoly v. Fiddlers Green Ranch of Fla., Inc., 998 So. 2d 1183 (Fla. Dist. Ct. App. 5th Dist. 2009)
[ii] Hagens v. Hilston, 388 So. 2d 1379 (Fla. Dist. Ct. App. 2d Dist. 1980)
[iii] Haley v. Pan American World Airways, Inc., 746 F.2d 311 (5th Cir. La. 1984)
[iv] Ogaard v. Wiley, 325 So. 2d 642 (La. Ct. App. 1975)
[v] Sylvester v. Liberty Mut. Ins. Co., 237 So. 2d 431 (La.App. 3 Cir. 1970)
[vi] Sebastian v. Kluttz, 6 N.C. App. 201 (N.C. Ct. App. 1969)
[vii] Fischer v. Mahlke, 18 Wis. 2d 429 (Wis. 1963)