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Loss of Consortium as an element of Damages


In the last three blogs I have been talking about a softball injury that happened at a U.S. Army National Guard outing and it involved a significant injury to a thirteen-year-old boy. The thirteen-year-old had claims for his physical injuries. Because the judge found the government through its supervising officer was 80% negligent, the boy was able to recover 80% of his injuries. This included projected loss of earnings as well as some medical expenses and of course pain and suffering. Additionally, the parents each had a claim for loss of consortium against the government for the child’s injuries.

It is interesting because years ago you could not recover as a parent for loss of consortium. The highest court of Massachusetts, the Supreme Judicial Court, denied that right. See the case of Norman v. MBTA, 403 Mass. 303 (1988) where a parent may not recover damages for the loss of a child’s companionship and society (consortium) due to injuries negligently inflicted on the child. However, very shortly thereafter, the Massachusetts State Legislature acted and permitted parents to make a claim for loss of consortium when their children were injured. See the statute, M.G.L. c. 231, 85X, which passed in 1989 in response to the Norman case. This is an example of how the legislature can “correct” the harsh – or seemingly harsh – decisions of the courts.

Now that we know that the parents have this right, conferred on them by legislative act, let’s look at the value of the claim. Because the boy in this case suffered such significant injuries the judge considered the amount of work put in by the parents, and the mother especially, in trying to care for and help the child. Additionally, the judge reviewed the emotional impact on the parents of the child’s significant injuries. The judge gave reasonable, it seemed to me, amounts of damages to each parent in their own right for their loss of consortium, separate and apart from what the judge ordered for the child. In the case of the mother, the judge awarded $150,000.00 and in the case of the father, the judge awarded $75,000.00.

It is a matter of some interest to me and perhaps to you that because the judge found 20% comparative negligence on the boy, as I had described in the last blog, the boy’s damages got reduced 20%. But under Massachusetts law -and it applied here even though this was a federal trial- loss of consortium damages do not get reduced by the comparative negligence of the injured party.

I have had experience with those situations. Indeed, this case against the U.S. government is an example yet again that negligence on the part of the person who was physically hurt, any negligence on their part, will not be imputed to people asserting a consortium claim. Any kind of consortium claim will not be reduced by comparative negligence whether it is a loss of marital consortium or a claim that parents have for loss of the child’s consortium. In that sense it is really an independent claim although it is sometimes referred to as being derivative.

There are points to draw from this decision aside from the fact that it is about a baseball game and aside from the fact that it is an unusual negligence claim in that it is against the U.S. government. We learn that consortium claims will offer additional means of recovery to additional parties, the parents, who were and will be, deeply affected by the injury to their young son.

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