A husband testified that, following an accident which dramatically changed his wife’s life, they loved each other more than before and that it had not hurt their relationship. The trial court concluded that the husband was not claiming a loss of consortium (a loss of a husband’s or wife’s love, companionship, comfort, care, assistance, protection, affection, society and moral support) and that the evidence failed to show any detrimental effect on the overall spousal relationship. The appellate court thankfully disagreed and said that, just by the circumstances themselves, their relationship had to be impacted.
Read on and see if you agree.
Written by: Patricia I. James**
Loss of consortium (pronounced consorsheum, not consorTum, as mispronounced on a fairly recent legal television show (Where WERE their legal consultants? (See Post #1)), is defined in CACI (pronounced Casey, not Khaki) No. 3020 of those jury instructions as the loss of, among other things, a husband or wife’s love, companionship, comfort, care, assistance, protection, affection, society and moral support.
In a very moving case entitled Mealy v. B-Mobile, Inc. 195 Cal.App.4th 1218 (2011), Donald Mealy, then about 26 years of age and Adelaide Mealy, then about 24 years of age, married in 1951 and ultimately had five children together. However, in 1952, Adelaide was stricken with polio and suffered almost complete paralysis in both legs. Although she was confined to a wheelchair, she was nevertheless very independent, e.g., she was able to drive a car and worked outside the home as a counselor for 30 years until she retired at the age of 63 in 1990. At about that time, she began to lose strength in her arms so her mobility became more difficult.
Ten years later, at approximately 73 years of age, she required a Hover lift to transfer her from her bed to a wheelchair. In 2006, she fell from the device and suffered a broken hip. However, at the age of 79, she was able to recuperate within one year.
Donald and Adelaide replaced the Hoyer lift with a Guldmann lift. With it, Donald was able to transport his wife in and out of bed and from the bedroom to the bathroom. After she was transferred from her bed in the morning, she would typically sit in her wheelchair for three to five hours, rest in bed for an hour at noon and again in the late afternoon. Nonetheless, she was able to mop and sweep the floor, clean the house, cook and garden. She was also able to participate in activities away from home such as lunch with friends, visiting family out of town and going to parks and art galleries.
Unfortunately, in August of 2008, while Donald was trying to lower Adelaide onto the toilet, part of the sling gave way and she fell to the floor. She spent three days in the hospital and three weeks at a rehabilitation center. She had suffered a hip fracture and her extended bed rest resulted in atrophy of her trunk muscles.
Following the incident, Adelaide’s life dramatically changed. She was unable to groom herself as she did before the fall, was able to sit in her wheelchair for only two hours at a time (as opposed to the three to five hours previously) and required bed rest to relieve the pain after sitting. She had become incontinent and unable to participate in activities away from home. Donald became her full-time caretaker.
Donald and Adelaide filed a complaint in January of 2009 wherein Adelaide alleged negligence, products liability and breach of warranty and Donald alleged loss of consortium and negligent infliction of emotional distress.
The trial court ultimately awarded Adelaide $555,127.90 for her damages but no relief to Donald. This was based on the following cross-examination of Donald at trial:
“”Question: “You’re with your wife more now, not less than before the accident?”
Answer: “That’s right.”
Question: “And you love her just as much?”
Question: “And she loves you must as much?”
Question: “So this hasn’t hurt your relationship with each other, has it?”
Answer: “Not a bit.””
With respect to his loss of consortium claim, Donald contended that the trial court erroneously concluded that (1) his loss of consortium claim had to be complete rather than partial in order to justify an award of damages; and (2) his overall satisfaction with his marital relationship negated his loss of consortium.”
The trial court had attempted to reconcile an apparent conflict between two previous cases, Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 405 and Park v. Standard Chem. Way Co. (1976) 60 Cal.App.3d 47. In Rodriguez, that court recognized the right to recover damages for the loss or impairment of the plaintiff’s rights of consortium whereas, in Park, that court had stated that a loss of consortium must be complete, not partial.
The trial court stated that “a loss of consortium is compensable only if “the overall relationship is harmed” and that the relationship need not be completely destroyed.” However, based on Donald’s testimony during cross-examination, the trial court concluded that he was claiming no loss to any of the elements of consortium. The court also found that the evidence “failed to show any detrimental effect on the overall spousal relationship…”
The Appellate Court essentially responded, “Seriously?”
In reversing the trial court’s ruling regarding Donald’s loss of consortium and ruling that he did suffer a compensable loss, the amount of which would be determined at a new trial, Acting Presiding Justice Croskey of the Second District found that it was readily apparent from the record that Adelaide had suffered a debilitating injury that impaired her mobility and limited her independence. By the time of trial, she required 24-hour care, most of which was provided by Donald. Justice Croskey recognized that “[a] woman in [Adelaide’s] condition necessarily cannot provide the same conjugal society, comfort and moral support that she once could.” Id. at Page 1225.
The Appellate court focused upon Donald’s testimony that he and Adelaide loved each other as much as before and that the changes in their lives as a result of this unfortunate event had not harmed their relationship, finding that these statements were typical of a loving and faithful husband. The Court found that “[t]hose supportive comments do not negate the tangible impact of his wife’s injury on Donald Mealy and the inevitable loss of conjugal society, comfort, affection, moral support and other noneconomic elements of the marital relationship resulting from his becoming virtually a full-time caregiver for his wife.” Id.
This is a touching example of the Court recognizing that a husband or wife can continue to be loving and giving through adverse circumstances but, just by the circumstances themselves, their relationship has to have been impacted. It is not required, nor should it be, that the spouse has to complain and whine about resenting the added responsibilities when things go wrong. (Did they think that the marital vow regarding “in sickness and in health” was a suggestion?).
This case recognized humanity at its best and made the correct findings. Thank you, Acting Presiding Justice Croskey and the Second District.
**No portion of this Post is intended to constitute legal advice. The views expressed are solely those of the author.