Loss of Consortium Damages

If your loved one was killed or catastrophically injured because of the careless, reckless, or intentional conduct of another, you may have a right to recover money damages for the harm caused to you and your relationship with the deceased or injured. Loss of consortium is the emotional distress suffered by one person who loses the normal company of his or her family member when the family member is injured due to the wrongful conduct of another. New Mexico law allows, in some situations, for close family members to sue the wrongdoer for the harm caused to the relationship between the victim and close family members. This is called a loss of consortium claim. Examples can include: (1) when a child is killed through the negligence of someone else, a wrongful death claim can be pursued for the death of the child, but the parent or custodial caretaker has also lost something too – their relationship with the child; (2) when a spouse is catastrophically hurt and is no longer able to engage in the marital relationship, (physically or emotionally), like they were before; or (3) when a cohabitating partner is seriously hurt or killed due to the negligence of another.

If you think you have a loss of consortium claim, as part of or separate from a wrongful death or other injury claim, you should consult with an attorney regarding your rights. Matthew Vance, at the Law Office of Matthew Vance, P.C., is an attorney experienced in wrongful death cases, catastrophic injury claims, and loss of consortium causes of action. We represent people all over New Mexico in wrongful death, catastrophic injury, and loss of consortium cases, including Albuquerque, Bloomfield, Carlsbad, Deming, Farmington, Hobbs, Las Cruces, Lordsburg, and Santa Fe.

Elements of a Loss of Consortium Claim

In order to make out a loss of consortium claim, a plaintiff is required to prove two elements: (1) that defendant owed them a duty of care, and (2) that they had a sufficiently close relationship with the decedent or injured person.

The Foreseeable Family Member

Whether the defendant owed a duty of care, is always a matter of foreseeability – was the plaintiff within the zone of danger. A discussion of foreseeability can be a tedious and sometimes circular mental and legal exercise. Suffice to say, New Mexico courts recognize that there is nothing surprising in the reality that when there is a death or catastrophic injury, harm can also be caused to the intimate relationships the victim shared with close family member, which involved support, society, comfort, aid, and protection. Romero v. Byers, 1994-NMSC-031, 117 N.M. 425, 872 P.2d 840.

The types of relationships that loss of consortium damages have been extended to have evolved over time. In 1994 the New Mexico Supreme Court recognized, for the first time, the existence of a wife’s cause of action for negligent loss of consortium because of the death of her husband, and held that “[l]oss of consortium is simply the emotional distress suffered by one spouse who loses the normal company of his or her mate when the mate is physically injured due to the tortious conduct of another.” Romero v. Byers, 1994-NMSC-031, ¶8, 117 N.M. 425, 429, 872 P.2d 840, 843. With Romero v. Byers New Mexico was one of the last states to recognize loss of consortium claims. Over time the relationships that would form the foundation for a loss of consortium claim continued to expand. In 1998 the Supreme Court extended the cause of action and held that a caretaking grandparent may bring a loss of consortium claim. Fernandez v. Walgreen Hastings Co., 1998–NMSC–039, ¶¶ 23–32, 126 N.M. 263, 968 P.2d 774. In 2003, the Supreme Court expanded the cause of action and its availability to a claim for loss of consortium in regard to unmarried cohabitating partners who shared “an intimate ... relationship.” Lozoya v. Sanchez, 2003–NMSC–009, ¶ 29, 133 N.M. 579, 66 P.3d 948. Having been one of the last states to recognize loss of consortium, the decision in Lozoya made New Mexico one of the first states to extend loss of consortium to cohabitating partners. Later in 2003 the Court of Appeals further expanded loss of consortium to include parents and siblings of a deceased adult, with whom they did not live, holding they can maintain a cause of action for loss of consortium if they are able to show that their relationships with decedent was sufficiently close and foreseeable. Fitizjerrell v. City of Gallup ex rel. Gallup Police Dept., 2003-NMCA-125, 14, 134 N.M. 492, 79 P.3d 836. In Wachocki v. Bernalillo County Sheriff’s Department, 2011-NMSC-039, ¶1, 150 N.M. 650, 265 P.3d 701, which involved a loss of consortium claim in regard to adult siblings, the Supreme Court clarified and held that loss of consortium claims and damages extended to sibling relationships, where a sufficiently close relationship exists.

Thus, in order to establish that a duty was owed to them by the defendant, a plaintiff must be able to prove they are a foreseeable plaintiff of the type identified – a spouse, a parent, a caretaking family member, a cohabitating partner, or a sibling.

A Sufficiently Close Relationship – Mutual Dependence

In order to prevail on a loss of consortium claim, the plaintiff must also be able to prove a sufficiently close relationship to the deceased or seriously injured.

A very close and intimate relationship with the injured party is required to pursue a claim for loss of consortium. Fitizjerrell v. City of Gallup ex rel. Gallup Police Dept., 2003-NMCA-125, 14, 134 N.M. 492, 79 P.3d 836. Key factors to be considered in determining a sufficiently close relationship include: the duration of the relationship, the degree of mutual dependence, the extent of the common contributions to a life together, the extent and quality of shared experience, whether the plaintiff and the injured person were member of the same household, their emotional reliance on each other, the particulars of their day-to-day relationship, and the manner in which they related to each other in attending to life’s mundane requirements. Wachoki v. Bernalillo County Sheriff’s Dept., 2011-NMSC-039, 150 N.M. 650, 265 P.3d 701. “Mutual dependence” is the key element to be applied to relationships of all types. Wachoki v. Bernalillo County Sheriff’s Dept., 2011-NMSC-039, 150 N.M. 650, 265 P.3d 701.

Thus, thorough consideration must be given to the nature, breadth, and depth of a relationship before a loss of consortium claim can be brought and successfully presented to a jury.

Loss of Consortium Claim are Separate from the Underlying Injury or Wrongful Death Claim

A loss of consortium claim, although it arises from the underlying wrongful death, is separate, sued for by the spouse or surviving family member in their individual capacity, and can be pursued independently. Romero v. Byers, 1994-NMSC-031, ¶16, 117 N.M. 422, 429, 872 P.2d 840, 847 (concluding that loss of consortium damages may not be awarded under Wrongful Death Act but must be pursued by the spouse in an individual capacity). In State Farm Mutual Auto. Inc. Co. v. Luebbers, 2005-NMCA-112, 138 N.M. 289, 119 P.3d 169, the Court of Appeals held that a minor child can pursue a claim for loss of consortium damages separate from and underlying wrongful death claim. In Luebbers, no wrongful death claim was pursued in conjunction with the claim with State Farm Insurance Company because the deceased was not an insured under the policy. That the loss of consortium claim can be said to derive from the underlying wrongful death does not mean that the loss of consortium claim must always be brought with the underlying claim, or that actual recovery for the underlying tort is a prerequisite for the recovery of loss of consortium damages. Thompson v. City of Albuquerque, 2017-NMSC-021, ¶14, 397 P.3d 1279; citing Archer v. Roadrunner Trucking, Inc., 1997-NMSC-003, ¶ 13, 122 N.M. 703, 930 P.2d 1155 (stating that while loss of consortium claimants may recover only if the physically injured person has a cause of action for his or her injuries, actual recovery for the underlying tort is not required in order to recover loss of consortium damages); Turpie v. Sw. Cardiology Assocs., P.A., 1998-NMCA-042, ¶ 7, 124 N.M. 787, 955 P.2d 716 (“[T]he defendant must be at least potentially liable to the injured [person] before it can be liable to the [claimant] seeking loss of consortium damages.”). In fact, in Thompson, no claims were brought in regard to the underlying wrongful death claim because the statute of limitations had already expired in regard to that claim. Thompson v. City of Albuquerque, 2017-NMSC-021, ¶1-5. Despite the extinguishment of the underlying wrongful death claim, the Supreme Court held that the loss of consortium claims could still be pursued. Thompson v. City of Albuquerque, 2017-NMSC-021, ¶17.

Thus, even if a wrongful death or severe injury claim was not brought or the loss of consortium claim was not originally included, it may still be possible to pursue the loss of consortium claim.

Damages for Loss of Consortium

Once a plaintiff proves, by a preponderance of evidence, a cause of action for loss of consortium, they are entitled to monetary damages.

UJI 13-1810A. LOSS OF CONSORTIUM
The emotional distress of __________ (plaintiff) due to the loss [of the society], [guidance], [companionship] and [sexual relations] resulting from the injury to __________ (name of injured or deceased spouse or child of plaintiff).

There is no rule as far as how much a jury can award for loss of consortium damages. A jury will be generally told by the presiding judge that no fixed standard or schedule exists for determining fair and just damages. Instead a jury must use their judgment to decide a reasonable amount. Generally a verdict must be based on evidence, not on speculation, guess, or conjecture. Judges will also caution jurors that they must not permit the amount of damages to be influenced by sympathy or prejudice, or by the grief or sorrow of the family, or the loss of the deceased’s society to the family.

If you think you have a loss of consortium claim as part of or separate from a wrongful death claim or catastrophic injury claim, you should consult with an attorney regarding your claim and your rights. Matthew Vance, of the Law Office of Matthew Vance, P.C., has the knowledge and experience to discuss your rights with you. You may be entitled to money damages for the harm suffered by you, not just the harms suffered by your spouse or loved one. Hold the wrongdoer responsible and accountable for the full extent of the harms caused, including those for loss of consortium. Matthew Vance represents people all over New Mexico in regard to serious injury and death cases, including in Bernalillo County, Santa Fe County, Dona Ana County, Sierra County, Catron County, Lea County, and Eddy County.