California law defines loss of consortium as “the loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support; and the loss of the enjoyment of sexual relations or the ability to have children.” (See Jury Instruction CACI 3920).
Loss of consortium entitles you to recover non-economic compensatory damages. These are subjective damages to compensate for the loss of your spouse’s or partner’s companionship and regular relations.
Recovery does not include economic losses such as your injured spouse’s lost earning capacity or the medical bills of either party. 1 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 that you need to prove in a “loss of consortium” lawsuit:
- Your spouse or partner was injured by someone else’s negligence or other wrongful act.
- You and the injured person were lawfully married or had a valid registered domestic partnership at the time of the injury.
- You suffered the loss of your spouse’s or partner’s consortium.
- Such loss resulted from the defendant’s wrongful act.3 4
To help you better understand the law, our California personal injury lawyers discuss:
- 1. Loss of Consortium Defined
- 2. Potential Damages
- 3. Elements of a Claim
- 4. Does my injured spouse have to sue for their injury?
Spouses of personal injury victims may be able to sue for loss of consortium.
1. Loss of Consortium Defined
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).
2. Potential Damages
If you lost the consortium of your spouse in California, you 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.
If your spouse died as the result of a wrongful act, you may also wish to review our articles on California wrongful death lawsuits and California survival actions.
What damages are not recoverable?
Damages for loss of consortium do NOT include:
- The loss of financial support from your injured spouse;
- Personal services, such as nursing, that you have provided or will provide to your injured spouse;
- Any loss of earnings that you have suffered by giving up employment to take care of your injured spouse; or
- The cost of obtaining domestic household services to replace services that would have been performed by your injured spouse. 6
What if the injury to my spouse is permanent?
If the injury to your 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 your spouse’s injury.7
That way you are not punished because the injury shortened your spouse’s 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 expectancy.8
3. Elements of a Claim
To prevail on a claim for loss of consortium in California, you must prove four things:
- A valid and lawful marriage or registered domestic partnership,
- A wrongful injury to your spouse or partner,
- You suffered loss of consortium, and
- The loss of consortium was caused by the injury to your spouse or partner.
Loss of consortium claims are open only to spouses or registered domestic partners.
A valid and lawful marriage
In general, you must prove that you had a valid marriage or registered domestic partnership with the injured party at the time of the injury.
If your spouse was injured before you were married / registered (or after you split up), you will usually not have a case.
An exception is where an injury is not discovered or discoverable until after your union, even though the wrongful conduct may have preceded it. In such cases, the enjoyment of the relationship is impacted only after your 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 start and Tom loses his consortium with Lou.
Wrongful injury to your spouse
To prevail on a claim for loss of consortium, you must prove that someone committed a tortious injury (wrongful act) against your spouse or domestic partner.
Such acts can be based another party’s:
- Negligence,
- Gross negligence,
- Recklessness,
- Intentional tort (wrongful act), or
- Strict liability (under some California products liability laws or California dog bite laws).
You suffered loss of consortium
Proving damages is usually the most challenging — and sometimes uncomfortable — part of a loss of consortium case.
Although it involves your losses, this aspect of the case will usually focus on your injured spouse’s inabilities or changes in behavior.
It can be uncomfortable to talk about how your 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 you experience facing testifying and being cross-examined.
Your spouse’s injury caused the loss
Even when someone has committed a wrongful act, you must still prove that that act caused the loss of your spouse’s consortium.
If there was another reason for the loss of consortium– for instance, an extramarital affair – you 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.
4. Does my injured spouse have to sue for their injury?
No. In California, loss of consortium claim is an independent tort that does not depend on whether your injured spouse proves their injury in court.10
However, if your injured spouse has lost a court case or agreed that another party is not liable, you 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.
Legal references:
- 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.