Loss of Consortium
What is the Loss of Consortium?
A derivative claim by a spouse (and in some jurisdictions a parent or child) for the loss of companionship, affection, sexual relations, and services resulting from tortious injury to a family member.
Source: Hitaffer v. Argonne Co., 183 F.2d 811 (D.C. Cir. 1950)
Definition
Loss of consortium is a derivative tort claim brought by one spouse for the loss of the other spouse's society, companionship, affection, sexual relations, and services resulting from a tortious injury to the other spouse. The claim is derivative because it depends on the underlying tort committed against the injured spouse — if the injured spouse has no valid claim, the consortium claim fails. The plaintiff in a consortium action is the uninjured family member, asserting their own independent right to the benefits of the family relationship that have been impaired by the defendant's wrongful conduct.
Historically, only husbands could bring loss of consortium claims, reflecting the legal fiction that the wife's services belonged to the husband. Modern law has extended the claim to wives, and virtually all jurisdictions now recognize loss of consortium as a gender-neutral claim available to either spouse. Some jurisdictions have further expanded the claim to allow parents to recover for loss of consortium of a child, and children to recover for loss of consortium of a parent, though this extension remains controversial and is not universally adopted.
Damages in consortium claims encompass the intangible elements of the marital relationship: companionship, emotional support, love, affection, sexual relations, and the injured spouse's ability to perform household services. Because consortium is a derivative claim, any defenses that reduce or bar the injured spouse's recovery (such as comparative negligence) typically also reduce the consortium claim proportionally. Most jurisdictions require that the consortium claim be tried together with the injured spouse's claim to avoid inconsistent verdicts. The claim is distinct from wrongful death damages, which arise only upon death.
Key Elements
- 1A valid marital or recognized family relationship exists between the plaintiff and the injured party
- 2The injured party suffered a tortious injury caused by the defendant
- 3The injured party has a valid underlying tort claim against the defendant
- 4The plaintiff lost the benefits of the relationship: companionship, affection, sexual relations, services
- 5The loss was caused by the defendant's tortious conduct
Landmark Cases
Hitaffer v. Argonne Co.
183 F.2d 811 (D.C. Cir. 1950)
Extended the right to claim loss of consortium to wives, overturning the prior rule that only husbands could bring such claims.
Rodriguez v. Bethlehem Steel Corp.
12 Cal.3d 382 (1974)
Recognized loss of consortium as an independent cause of action in California, available to either spouse.
Borer v. American Airlines, Inc.
19 Cal.3d 441 (1977)
Declined to extend loss of consortium to children, holding that policy concerns about expanding liability outweighed the interest in compensating children.
Boucher v. Dixie Medical Center
850 P.2d 1179 (Utah 1993)
Recognized a child's cause of action for loss of parental consortium, departing from the majority rule.
Exam Tips
- Always check whether the underlying claim is valid — consortium is derivative and fails if the injured person has no tort claim.
- Specify whether the jurisdiction extends consortium claims beyond spouses to parents and children.
- Note that defenses applicable to the injured spouse (comparative negligence, assumption of risk) reduce the consortium claim proportionally.
- Distinguish loss of consortium (for injuries) from wrongful death claims (for death) — they compensate for different losses.
Common Mistakes to Avoid
- Treating loss of consortium as an independent claim that can survive even if the injured person's tort claim fails — it is derivative.
- Assuming all jurisdictions allow parent-child consortium claims — the majority rule still limits consortium to spousal claims.
- Confusing loss of consortium with wrongful death — consortium compensates for impairment of the relationship while the injured person is alive.
Memory Aid
Consortium = Companionship lost. Derivative claim: if the injured spouse cannot recover, neither can the other spouse.