“Loss of consortium” is the loss of companionship, moral support and/or intimacy following a wrongful injury to one’s spouse or registered domestic partner in California.1
Loss of consortium entitles the plaintiff to recover non-economic compensatory damages. These are subjective damages to compensate for the loss of the spouse’s or partner’s companionship and regular relations.
Recovery does not include economic losses such as the injured spouse’s lost earning capacity or the medical bills of either party.2 In this respect, damages for loss of consortium are similar to damages for pain and suffering in California.
In California, there are four elements a spouse (or registered domestic partner)3 needs to prove in a “loss of consortium” lawsuit:
- The spouse or partner was injured by someone else’s negligence or other wrongful act.
- The plaintiff and the injured person were lawfully married or had a valid registered domestic partnership at the time of the injury.
- The plaintiff suffered the loss of his or her spouse’s or partner’s consortium.
- Such loss resulted from the defendant’s wrongful act.4
To help you better understand California’s “loss of consortium” law our California personal injury lawyers discuss, below:
- 1. How does California law define “loss of consortium”?
- 2. What damages can a spouse recover?
- 3. What are the elements of a loss of consortium case in California?
- 4. Does the injured spouse have to sue for his or her injury?
Under California law, “loss of consortium” is defined as:
- The loss of love, companionship, comfort, care, assistance, protection, affection, society, moral support; and
- The loss of the enjoyment of sexual relations or the ability to have children (if applicable).
A plaintiff who has lost the consortium of his or her spouse in California may recover “non-economic” damages in any reasonable amount the jury determines. 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.”5
There is no fixed standard for loss of consortium damages. The more serious and long-lasting the injury is expected to be, the larger the award.
Damages for loss of consortium do NOT include:
- The loss of financial support from the injured spouse;
- Personal services, such as nursing, that the plaintiff has provided or will provide to the injured spouse;
- Any loss of earnings that the plaintiff has suffered by giving up employment to take care of the injured spouse; or
- The cost of obtaining domestic household services to replace services that would have been performed by the injured spouse. 6
If the injury to the spouse is permanent, damages can extend until the anticipated end of the life of whichever spouse has the shorter life expectancy. For this purpose, life expectancy is measured as it was just prior to the spouse’s injury.7
That way the spouses are not be punished because the injury shortened their life expectancy. For instance, a Los Angeles jury awarded the wife of a mesothelioma victim $4 million for past and future loss of consortium, even though mesothelioma victims have a short life expectency.8
To prevail on a claim for loss of consortium in California, a plaintiff must prove four things:
- A valid and lawful marriage or registered domestic partnership,
- A wrongful injury to the plaintiff’s spouse or partner,
- The plaintiff suffered loss of consortium, and
- The loss of consortium was caused by the injury to the spouse or partner.
In general, the plaintiff must prove that he or she had a valid marriage or registered domestic partnership with the injured party at the time of the injury.
If the plaintiff’s spouse was injured before the parties were married / registered (or after they split up) the plaintiff will usually not have a case.
An exception is where an injury is not discovered or discoverable until after the couple’s union, even though the wrongful conduct may have preceded it. In such cases, the enjoyment of the relationship is impacted only after the spouse or registered partner becomes aware of the injury and/or the harm that resulted from it.9
Example: Lou is a 50-year old construction worker when he and Tom become registered domestic partners. Lou is healthy when they register, even though his work has exposed him to asbestos for over 25 years.
But a few years later, Lou is diagnosed with pleural mesothelioma, a serious and often fatal condition. Even though his asbestos exposure occurred largely before the union, his symptoms did not. The loss of consortium begins only when Lou’s symptoms starts and Tom loses his consortium with Lou.
To prevail on a claim for loss of consortium, the plaintiff must prove that someone committed a tortious injury (wrongful act) against his or her spouse or domestic partner.
Such acts can be based another party’s:
- Gross negligence,
- Intentional tort (wrongful act), or
- Strict liability (under some California products liability laws or California dog bite laws).
Proving damages is usually the most challenging — and sometimes uncomfortable — part of a loss of consortium case.
Although it involves the plaintiff’s losses, this aspect of the case will usually focus on the injured spouse’s inabilities or changes in behavior.
It can be uncomfortable to talk about how one’s spouse’s behavior has changed the marital relationship, especially if loss of sex is alleged.
Our caring California injury attorneys know how to present the losses to the jury in a way that will maximize damages while minimizing the difficulty our clients experience facing testifying and being cross-examined.
Even when someone has committed a wrongful act, the plaintiff must still prove that the loss of his or her spouse’s consortium was caused by that act.
If there was another reason for the loss of consortium– for instance, an extramarital affair – the plaintiff cannot claim damages in a California loss of consortium lawsuit.
Our California injury lawyers can help you or your spouse overcome a defendant’s challenges and connect the dots between the wrongful act and your losses.
No. In California, loss of consortium claim is an independent tort that does not depend on whether the injured spouse proves his or her injury in court.10
But, if the injured spouse has lost a court case or agreed that another party is not liable, his or her spouse cannot sue for loss of consortium.
Example: Winnie is mauled by a vicious dog while she is out for her morning jog. As a result of the dog bite injury, Winnie suffers facial disfigurement, a mangled hand, and significant pain and suffering. She sues the dog’s owner but loses her cases. Since the issue of liability has already been adjudicated in the dog owner’s favor, Winnie’s husband cannot sue for loss of consortium.
If your spouse was injured by someone’s negligence or other wrongful act we invite you to contact us for a free consultation.
Call us or complete the form on this page to discuss your case with a California injury lawyer.
You may be entitled to compensation even if you had no out-of-pocket losses.
- Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382.
- California Civil Jury Instructions (CACI) 3920.
- California Family Code 297.5 gives registered domestic partners the same legal rights and remedies as spouses.
- Hahn v. Mirda (2007) 147 Cal.App.4th 740; Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921.
- California Civil Code 1431.2 (b)(2).
- CACI 3920, note 2.
- Truhitte v. French Hospital (1982) 128 Cal.App.3d 332.
- LaMonica et al. v. Colgate-Palmolive Co. et al., Los Angeles Superior Court case number JCCP4674/BC604809.
- Leonard v. John Crane, Inc. (2012) 206 Cal.App.4th 1274.
- Brumley v. FDCC California, Inc. (2007) 156 Cal.App.4th 312.