William G. Schwab and Associates
811 Blakeslee Blvd. Dr. East (PA Route 443) PO Box 56 Lehighton, PA 18235
Tel 610-377-5200 Fax 610-377-5209
NEWSLETTER
Personal Injury March 26, 2015
 
Personal Injury
Bankruptcy
Business
Criminal Law
Elder Law
Estate Planning/Probate
Real Estate
 

Strict Liability for Dangerous Animals and Ultrahazardous Activities

Typically, owners of dangerous animals and others engaged in ultrahazardous activities owe an absolute duty to make the animal or ...(more)

 

Liability for Employee Cellular Phone Use

In one decade, cellular telephone use has gone from being a novelty for the fortunate few, to being commonplace in ...(more)

 

Families & Lawsuit Immunity

Over the years, intra-family immunity from lawsuits against other family members developed; "parental immunity" and "spousal immunity." Some have suggested ...(more)

 

Some Defenses to Liability for Damages in a Car Accident

When a vehicle accident results in damage, injury, or death, the party whose carelessness (negligence) caused the accident may be ...(more)

 

Personal Injury Headlines

Illinois Teen Injured in Bike Wreck Awarded $910K

Personal-injury accident investigtion leads to multiple charges for Massena pair

Walmart removes personal injury lawsuit to federal court

Anderson Hospital denies allegations in personal injury lawsuit

$5 million personal injury lawsuit against city dismissed

Comparative Negligence May Affect Loss of Consortium Awards


Depending on the jurisdiction, spouses, children, and parents may be able to recover for a "loss of consortium" in personal injury and wrongful death actions.  Some states have extended the availability of loss of consortium damages to other parties, including grandparents and non-married cohabitants.  Note, however, that the status of the law with respect to this issue varies considerably among states.
 
As a general proposition, loss of consortium damages seek to compensate an individual for the loss of affection, care, companionship, love and support which may result from an injury to a loved one.  For example, suppose Winston is severely injured by a wrongdoer.  In a subsequent personal injury lawsuit, Winston will likely sue for damages resulting from his physical injures.  In addition, in jurisdictions that permit it, Winston's spouse, for example, may also sue the wrongdoer to compensate her for the loss of consortium she suffers as a result of Winston's injuries.   
 
Majority Rule: Derivative Action
The vast majority of jurisdictions categorize a legal claim for loss of consortium damages as a "derivative" action.  This means that recovery in the suit for loss of consortium damages depends on the success of the injured family member's own action.  If the injured party's claim fails, then the loss of consortium claim must also fail.    
 
As a consequence of its derivative nature, a claim for loss of consortium damages may be defeated by any defense that would prevent recovery by the injured party.  For example, many jurisdictions recognize the doctrine of "comparative negligence."  Though application of the doctrine varies by state, comparative negligence systems generally operate to reduce a plaintiff's damages by his or her percentage of fault. 
 
To illustrate, assume that Damien negligently drives through a stop light and collides with Peggy, but Peggy contributes to the accident by driving inattentively.  If a jury determines that Peggy was 40% negligent and Damien was 60% negligent, Peggy's damage award will be reduced by 40%.  However, in "modified" comparative negligence jurisdictions, Peggy's award may be completely barred if her negligence passes a threshold level (e.g., 50% or more at fault). 
 
With respect to loss of consortium awards, a majority of jurisdictions hold that the fault of the physically injured party will likewise either reduce or bar recovery.  Therefore, in the example above, if Peggy's husband seeks to recover for loss of consortium, his award will also be reduced by 40%.

2013 NextClient.com, Inc.  All rights reserved.