Understanding Lack of Consortium Claims
When an individual suffers a personal injury due to the negligence of another, the injured person is not the only party who may have a claim. Indeed, many states allow spouses and other family members to also sue the negligent party for lack of consortium. This cause of action asserts that because of the injuries suffered by the injured party, other people have lost the support and affection they typically expect from the person who was injured. However, there are certain things individuals should keep in mind when considering lack of consortium claims.
Spouses
Lack of consortium claims are typically brought by the spouse of an injured party. Most jurisdiction do not permit significant others who are not married to file lack of consortium claims against negligent parties. In addition, individuals typically cannot get married after the personal injury accident and assert this claim, since parties usually need to be married at the time of the injury to assert this claim. In addition, divorced or separated parties may not be able to make a lack of consortium claim against a negligent party.
It is important to note that spouses will likely be asked personal questions about their intimate relations with their spouses as part of lack of consortium claims. This is because the strength of the bond between married people will be important to recovering damages in lack of consortium claims. As a result, individuals need to be prepared to answer questions about their marital activities with their spouses and other personal questions when asserting lack of consortium claims.
Children
Many states also permit children to bring lack of consortium claims against parties guilty of negligence against their parents, or the other way around. Such claims are very different than the claims that may be brought by spouses of an injured party. Generally, children will argue in a lack of consortium claim that they were not afforded the same support, affection, and upbringing previously afforded by their parents due to the negligence of a culpable party. In addition, parents may also argue that because of negligence inflicted against their children, they will not be able to receive support from their children to which they might otherwise be entitled if their children were not injured. It should be noted that such claims can usually be made for all legal children of a parent, adopted or otherwise. However, if the child has reached the age of majority, this may impact lack of consortium claims made by parents or children. A skilled personal injury attorney should know if a lack of consortium claim by parents or children is viable in a given situation.
Damages
It can be very difficult to calculate damages in lack of consortium claims. Estimating the loss a person experiences because of injuries suffered by someone else is not an exact science, and it is hard for even expert testimony to calculate this loss. A number of factors will be assessed by a court when determining the amount of damages that should be awarded for lack of consortium claims. The strength of the relationship between the injured party and the individual claiming lack of consortium will be the most important factor when calculating damages. Furthermore, the ages of the parties may also be important, since people may expect different levels of support depending on the ages of the parties. Ultimately, the issue of damages is usually up to the sound discretion of the trier of fact, typically the jury. The trier of fact will need to inquire how they themselves would quantify the loss suffered by people who are tangentially affected by the negligence of others, and this will guide a determination about damages.
Practical Considerations
Even if a lack of consortium claim is available in personal injury matters, it sometimes may not make sense to allege this claim. If the individual alleging lack of consortium is married to the party who was injured, making a lack of consortium claim may not greatly impact the value of a case. Lack of consortium claims do not typically play a major impact in settlement negotiations, and the spouse of a person injured will incidentally receive the benefit of a settlement with the injured party as a result of the money awarded to their spouse. In addition, including a lack of consortium claim may create more obstacles to a recovery. Parties alleging lack of consortium claims usually must sit through a deposition, which may entail questions of personal matters. In addition, lack of consortium plaintiffs may also have to turn over documents related to the case, and this can impose a hardship. Furthermore, all plaintiffs in a case, including those asserting lack of consortium claims, typically must answer written interrogatives in certain jurisdictions. As a result, it may be sensible for a married couple to simply focus on the claims of the injured party in order to secure a settlement with the least amount of obstacles.
Just because individuals were not physically hurt by the negligence of others doesn’t mean that the injuries suffered by a loved one does not affect other people. The Rothman Law Firm has experience pursuing claims not only for people injured by the negligence of others, but on behalf of their loved ones as well. If you are looking for an experienced New Jersey and New York personal injury lawyer, please feel free to contact The Rothman Law Firm to request a free consultation.