Loss of Parental Consortium in Personal Injury Cases
In the words of the Texas Supreme Court, “The loss of a parent’s love, care, companionship and guidance can severely impact a child’s development and have a major influence on a child’s welfare and personality throughout life.” For this reason, some states have recognized a child’s right to recover for loss of parental consortium in personal injury actions. “Consortium” typically encompasses love, companionship, affection, society, solace and comfort.
Significant Variation Among Jurisdictions
The status of the law with respect to a child’s right to recover consortium damages varies significantly among states. In fact, the variation is so considerable that it is virtually impossible to set forth a generalized summary on the status of the law. Instead, examples of state treatment of the issue are offered to illustrate the great variety of approaches to awarding parental consortium damages.
Among the significant issues that courts must address are the following: Whether a child’s right to recover parental consortium damages is limited to wrongful death actions. For example, some states only authorize consortium damages in cases where the parent dies. Other states, however, additionally allow consortium damages in cases where the parent survives with severe injuries. This article focuses exclusively on the situation where the parent suffers non-fatal injuries.
Whether recovery is limited to minor children. Some states only permit minor children to receive an award of consortium damages, while other states grant adult children the right to bring claims for loss of parental consortium.
State Approaches to Parental Consortium Damages
In November 2002, the Tennessee Supreme Court conducted a survey of the decisions of other state courts. According to the court’s research, a majority of jurisdictions had refused to recognize a cause of action for loss of parental consortium in personal injury cases. In fact, American courts had unanimously rejected the claim until the Supreme Judicial Court of Massachusetts first recognized it in 1980.
Alternatively, the Tennessee court observed that a minority of states had adopted an action for loss of parental consortium. Those that have adopted the action did so either through statutory enactment (i.e., the state legislature) or through case law and judicial opinions: Massachusetts allows a child, if conceived before a parent sustains non-fatal injuries, to recover for loss of the parent’s consortium after his birth. Furthermore, a minor child may recover for loss of a parent’s companionship and society due to injuries negligently inflicted on the parent by a third party.
In 1990, the Supreme Court of Texas granted children the right to recover for loss of consortium in situations where the parent suffers a permanent disability: “The obvious and unquestionable significance of the parent-child relationship compels our recognition of a cause of action for loss of parental consortium.” Later, in 2003, the court affirmed the validity of a child’s consortium claim for a parent’s serious permanent injury. Texas, moreover, does not limit the right to recover to minor children: “Although minors are the group most likely to suffer real harm due to a disruption of the parent-child relationship, we leave this to the jury to consider in fixing damages.”
Florida has set forth a statute that includes loss of companionship as compensation for a minor child in a claim for permanent injury to a parent.
In Michigan, a child has a cause of action for loss of parental consortium resulting from non-fatal injury to the parent.
Subject to certain limitations, Arizona permits children to recover for loss of consortium “when a third party causes serious, permanent, and disabling injury to their parent.” Like Texas, Arizona does not limit recovery to minor children: “A defendant in a consortium case is liable to the child because the defendant injured the child’s parent and thereby damaged the parent-child relationship.”
The Oklahoma Supreme Court has recognized a right to recover for loss of consortium “when for all practical purposes the parent is in a state which equates death.”
The Supreme Court of Washington, in 1984, granted both adult and minor children the right to recover for loss of parental consortium. In Washington, the child’s age is only relevant as a factor in assessing the amount of damages.
A Louisiana statute permits the recovery of parental consortium damages in personal injury cases.
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