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Torts: Damages: Consortium Damages
When one spouse is injured as a result of a defendant’s negligent or tortious conduct, the other spouse is entitled to file an action against the defendant for his or her damages as a result of the defendant’s conduct. The spouse who is injured is referred to as the impaired spouse. The spouse who is filing the action is referred to as the deprived spouse.
In order for a defendant to be liable to a deprived spouse for an impaired spouse’s injuries, the defendant must engage in tortious conduct. Tortious conduct includes both intentional acts and negligent acts. If the defendant engages in an abnormally dangerous activity or if the defendant provides a defective or an unreasonably dangerous product to the impaired spouse, he or she will be liable to the deprived spouse.

A deprived spouse is entitled to damages for his or her loss of society and services as a result of an impaired spouse’s injuries. This type of damages is also referred to as loss of consortium. Loss of consortium includes damages for loss of affection and loss of sexual relations.

Because an impaired spouse is entitled to an action against a defendant for his or her injuries, which action may include damages for the impaired spouse’s emotional distress, loss of earning capacity, and reasonable medical expenses, a deprived spouse cannot bring an action against the defendant for the same damages. The deprived spouse can only seek damages from the defendant for the medical expenses that the deprived spouse incurred on behalf of the impaired spouse and for his or her loss of consortium. In order to prevent the impaired spouse’s damages from overlapping with the deprived spouse’s damages, the deprived spouse’s action against the defendant is most often joined with the impaired spouse’s action against the defendant. However, if the impaired spouse cannot bring an action against the defendant, such as when the impaired spouse has died or when the impaired spouse has settled with the defendant, the deprived spouse is entitled to bring a separate action against the defendant.

If an impaired spouse dies as a result of a defendant’s tortious conduct, a deprived spouse is only entitled to recover damages from the defendant for his or her loss of consortium or for medical expenses that he or she incurred prior to the impaired spouse’s death. If the deprived spouse seeks to recover damages that he or she incurred after the impaired spouse’s death, the deprived spouse must file a wrongful death action against the defendant.

In order for a deprived spouse to bring an action against a defendant for an impaired spouse’s injuries, the deprived spouse and the impaired spouse must have a valid marriage. If the marriage of the impaired spouse and the deprived spouse is voidable, such as when the parties are underage, the deprived spouse is entitled to bring an action only if the voidable marriage has not been annulled. Once the voidable marriage has been annulled, the deprived spouse is no longer entitled to damages for his or her loss of consortium.

A deprived spouse’s consent to a defendant’s tortious conduct towards an impaired spouse is a valid defense to an action by the deprived spouse against the defendant. For example, if the deprived spouse consents to an assault or battery against the impaired spouse, the defendant is not liable to the deprived spouse. The defendant will only be liable to the impaired spouse. The impaired spouse’s consent to the defendant’s tortious conduct is a defense to both the impaired spouse’s action against the defendant and the deprived spouse’s action against the defendant.