Loss of Consortium and its Development in Connecticut

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August 12, 2009

Over the past fifty years, the common law has recognized certain intangible benefits that flow from the relationship between a husband and wife. These benefits are commonly referred to as consortium.[1] In addition, the common law recognizes that if a spouse receives an injury due to the negligent conduct of another, the non-injured spouse has a right to be compensated for the loss of those intangible benefits. The right to file a claim against a spouse's tortfeasor for loss of consortium led to legal issues inherent in allowing such derivative claims.

Consortium was traditionally the services of a wife, the financial support of the husband, and all of the intangible derivatives that exist between husband and wife.[2] These other derivatives are such things as affection, society, and companionship. At early common law, when a woman married, her property interests merged with her husband's property interest and she lost the right to contract or file a claim on her behalf. The husband would provide financial support in exchange for his wife's services and affection. If there was some negligent or intentional harm inflicted upon the wife, the injury was viewed as affecting the husband's right to her services and affection. Thus, the husband could file a claim for loss of consortium because of the injuries sustained by his wife.

Due to society's view that women were socially inferior to men, women were not entitled to claims against the tortfeasor for loss of consortium. After the Married Women's Act, however, in the mid-nineteenth century women were able to contract and file claims on their own behalf. This progress in women's rights raised the question as to whether the husband should now be barred from asserting a claim on his wife's behalf or whether the wife now enjoyed the right to file a claim for loss of consortium - for the loss of her husband's services and affections. The jurisdictions were split in this regard; some denied the husband a right to recovery, while others allowed the wife to file a claim for loss of consortium, but only for an intentional act against the husband.

Initially, Connecticut courts favored the position that the husband lost his right to sue a third-party tortfeasor for the loss of his wife's services and affection. In a 1911 case, Marri v. Stamford,[3] both the husband and wife suffered injuries in a trolley car accident. The husband and wife both brought a suit to recover for their personal injuries sustained in the accident. In addition, the husband also alleged the loss of consortium of his wife. The trial court allowed the loss of consortium claim and granted a three-hundred dollar recovery for his injuries. On appeal, the court denied the husband the right to recover for loss of consortium and held that he was limited to recover only the expenses hat he incurred as a result of his wife's injuries. The court reached this conclusion by finding that the basis for recovery in a negligence claim is loss of services and, after the Married Women's Act, the wife is entitled to recover in her own name. Thus, the husband would be limited only to medical expenses he sustained with respect to his wife's injuries.

The Court first recognized the right to recover for loss of consortium in 1979.[4] In Hopson v. Saint Mary Hospital,[5] the Connecticut Supreme Court acknowledged that both spouses have a right to file a claim for loss of consortium against their spouses' tortfeasor, thus overruling Marri. In Hopson, a husband and wife brought a malpractice action against the defendants, St. Mary's Hospital and a physician, to recover damages for injuries that the wife sustained during surgery. The husband claimed that the surgery deprived him of the "love, affection and consortium" of his wife. The defendants filed a motion to strike to loss of consortium claim portion of the complaint because loss of consortium was not recognized in Connecticut. Relying on Marri, the trial court granted the motion to strike and the plaintiffs appealed. The issue on appeal was whether Connecticut courts should continue to deny loss of consortium claims.

The Hopson court found that the reasoning in the Marri case was no longer applicable; thus, Marri should be overruled. Specifically, the Hopson court found that the effect of the Marri case was to deny "the existence of any harm where harm is most assuredly to be expected." For example, it is a general principle of tort law that a tortfeasor takes his victim as he finds him. Therefore, if the tortfeasor's victim is married, it is natural that the victim's spouse may suffer from "personal and compensable injuries" as a result of the negligent act inflicted on the injured spouse. As a result, the court found that loss of consortium should be recognized as a viable claim in Connecticut.

The court addressed several concerns associated with loss of consortium claims. First, the court found that the difficulty in assessing the damages in a loss of consortium claims should not be a reason for denying the claim altogether. Specifically, the court pointed out that such things as grief, fright, and anxiety have been considered compensable injuries in claims involving pain and suffering. Therefore, calculating damages for loss of consortium, which includes such things as grief, fright, and anxiety, should not be different than calculating the pain and suffering associated with other claims.

The Hopson court also addressed the concern of improper verdicts in a loss of consortium claim and turned to other jurisdictions for guidance. An improper verdict, according to the Hopson court, was one where the spouse failed to establish a claim for an element of consortium, such as loss of companionship, but the jury returns a verdict in favor of that element nonetheless. The court in Hopson suggested that Connecticut follow those jurisdictions that addressed the problem of improper verdicts by recommending that claims by spouses, for either physical injuries or loss of consortium, be tried before the same trier of fact. Therefore, joinder of the underlying claims with the consortium claim would ensure that the same trier of fact would hear both claims simultaneously.

[1] Black's Law Dictionary defines "consortium" as "the benefits that one person, especially a spouse, is entitled to receive from another, including companionship, cooperation, affection, aid, and (between spouses) sexual relations." Black's Law Dictionary 304 (7 th ed. 1999). Black's Law Dictionary defines "loss of consortium" as "a loss of the benefits that one spouse is entitled to receive from the other, including companionship, cooperation, aid, affection, and sexual relations. Loss of consortium can be recoverable as damages in a personal-injury or wrongful-death action." Id. at 958.

[2] See P. Keeton, et al, Prosser & Keeton on the Law of Torts 124, at 881 (4 th ed. 1971).

[3] Marri v. Stamford Street R. Co., 84 Conn. 9 (1911).

[4] The Court granted this right to spouses married at the time the directly harmed spouse incurred the injury. Betrothed and divorced individuals cannot recover for loss of consortium because the "formal marriage relations forms the necessary touchstone o determine the strength of commitment between the two individuals which give rise to the existence of consortium between them in the first instance." Gurliacci v. Mayer, 218 Conn. 531, 562-63 (1991).

[5] Hopson v. St. Mary's Hospital, 176 Conn. 485 (1979).