As some of you know, I’m in law school. This isn’t homework, but it is studying for finals. Something I can’t wrap my head around.
Can you sue your own spouse/parent/child for loss of consortium? I think all states have eliminated the general spousal/parent/child immunity, but:
Let’s say that wife’s drunken husband falls down a flight of stairs putting him in the hospital. Can she sue him for the loss of his sex, services, and society due to his own negligence?
If so, what about his intentional conduct? If he files for divorce, can wife sue him for the same? I think clearly not in this example, so I can’t imagine why she could in the former. But I can’t articulate why.
What about a child suing his parent for the loss of parental consortium in intentional/negligent conduct? What about a parent suing his child for loss of filial consortium in intentional/negligent conduct?
Don’t know. If I were guessing, I’d say that since loss of consortium is a common law doctrine, and at common law these people never would have been able to sue each other b/c of familiar immunities, then the doctrine doesn’t even extend to them at all.
Anyway since the common law scheme doesn’t anticipate these kinds of claims, the only way it’s going to appear is if the legislature has already mucked around with the common law – so it seems likely they might have fiddled with the loss of consortium claim at the same time. That could cut either way depending on circumstance, but the point is that we can’t come do a conclusion about the issue based on logic, because different legislatures will have treated the issue differently. The only answer to the question is going to be found in the statute books of the relevant jurisdiction, and it may vary widely from state to state.
Now, if I were king, I’d probably allow spouses to sue along these lines – certainly you owe no lesser duty to your spouse to keep yourself intact than the general public does. The divorce suggestion is inapposite because we can assume that state family law has specified particular procedures to sever these ties, such that any loss of consortium claim which might have lain is subsumed or preempted by the relevant family law.
As for kids perhaps we should say that if a child (a minor, that is) injures himself negligently the parent cannot sue for LoC because there’s some basic parental responsibility to keep the kid safe. Sort of an unclean-hands type of rule – you can’t sue him for hurting himself, because be definition it’s your job to ensure that he doesn’t. In the other direction it might work OK. But with kids generally you wouldn’t typically expect them to have an economic existence separate from their folks, so even if the law allowed the claim, the court won’t recognize it if it’s taking the judgment out of one pocket to put it back in the same pocket. Maybe in the instance of divorced parents, but you don’t really hear about anything like this, so I’d assume it’s not recognized in state law.
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Thanks for the help. Here is another argument I would make, though. Even short of divorce, no law requires me to have sex with my wife, do chores around the house, or attend social events with her. I could decline to do all three of the above intentionally.
If she sued me for loss of consortium due to my own negligence, could I not tell the judge that there are no damages in this case because I wouldn’t do any of the 3 even if I were healthy, and if I did them before now I choose not to do so.
I’ve seen a lot of these cases and damages are an element of proof. All of the cases are the same. Before the injury husband and wife had sex 6 times per day, on the floor, kitchen counter, everywhere. Even 85 year old couples were boinking like teenagers until the accident which has left the otherwise healthy looking man unable to achieve an erection and has lost all desire in sex.
Now, if you didn’t have a cooperative witness like the husband, I can see how you could prove damages, especially if he makes an affirmative statement that he will never provide his wife with those things ever again, voluntarily.
IANAL. Intuitively, the difference seems to be that however firmly declared, a voluntary disruption can be changed at any time. Actual physical damage from an outside source goes beyond volition. It may be fixable - usually with high costs - but it falls completely outside the normal and expected course of relationships.
Yeah, I think Exapno has your response. Plus, the fact-finder might reasonably deduce that the injured spouse is making shit up about what he would otherwise be doing (or rather refusing to do) and discount his testimony accordingly. Finally, maybe this newly manifested desire to stand at a distance is itself a result of the injury – that’d be a question for the jury as well.
Note again that this is all completely academic – the more I think about it the more I’d be surprised if these claims are entertained in any great number anywhere.