When a person is injured as a result of the negligence of another who owed them a duty of care, that individual usually has the right to pursue compensation under Florida law. That part is pretty well-known. What is less understood is that certain loved ones of the person injured may also pursue their own claim for damages under a type of compensation called “loss of consortium.”
A claim for loss of consortium alleges damages suffered by a loved one of a person who has been injured or killed as a result of a defendant’s negligent, intentional or otherwise wrongful act. Loss of consortium claims vary widely from state-to-state, with some imposing strict limitations on who has the right to a loss of consortium claim. Typically, it’s filed by one’s spouse, and asserts the loss of “normal marital relations,” which can be a euphemism for sexual intercourse, but also for loss of companionship. The exact measure of this kind of loss is speculative, which is why only an experienced injury attorney should handle such claims. Proving damages often requires delving into the strength of the bond and the closeness of the relationship.
In Florida, unlike in some other states, the law allows for claims of loss of consortium brought by others besides one’s spouse. Specifically, parents may sue for loss of consortium of a child and children may sue for loss of consortium of a parent. Rights to these claims are found in several statutes, including F.S. 768.21.
This is an area of law that is still very much evolving, though. Consider the recent case of Benda v. Catholic Diocese of Salt Lake City, recently before the Utah Supreme Court. At issue here was whether the parents of a 14-year-old boy seriously injured in a school-related accident had the right to pursue damages for loss of consortium for the loss of affection and companionship of their son. Defendant never denied liability for the boy’s injury, but argued the loss of consortium claim should be dismissed because Utah only recognizes loss of consortium among spouses.
Here’s what happened: The teen was in a high school drama class, where he was working on the set as part of his classroom credit. The drama teacher instructed him to climb up onto a lift to change several light bulbs above the stage. This lift was 30 feet in the air. He changed the first one without issue. Then, the teacher instructed other students on the ground to move the lift over to the next light bulb. Now, anyone who has ever worked from heights knows this is extremely dangerous – particularly with no fall arrest system and especially for an untrained teenager. It ended tragically. The teen fell and suffered life-threatening injuries. Although he did survive, his traumatic brain injury has forever altered his life.
His parents sued the school district, alleging negligence and vicarious liability, and seeking damages for personal injury and loss of filial consortium. The school district accepted liability. However, on the issue of damages, it moved to dismiss the loss of consortium claim, a request the trial court granted.
On appeal, the Utah Supreme Court vacated. The court found that although the state statute doesn’t specifically indicate a claim for loss of consortium stemming from the tortious injury of a minor child, there was nothing in the state statute on spousal loss of consortium that specifically barred a claim for filial loss of consortium. Thus, the parents were allowed to proceed with their claim.
If someone you love has suffered serious personal injury or wrongful death, our dedicated Orlando injury attorneys can help.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.
Benda v. Catholic Diocese of Salt Lake City, Aug. 25, 2016, Utah Supreme Court
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