I'm not entirely sure I understand the question. My answer to the question as I do understand it is simple: I'd do what the law says I'm supposed to do. That's what jury instructions are for. If the plaintiff is entitled to damages for loss of consortium, and he proves them, then he gets them. (Quantifying them may be hard, but that's not at all unique to loss of consortium claims.)

Okay, Matt. You have the basic facts. How much do you give the husband?

Even though this is of no legal help, I would refute the husbands claim and tell the loser to suck it up and use his hand like every other Joe who isn't getting any. Sheesh, some guys these days.

In this case the husband's claim is undeserving. There is no guarantee that the husband and wife would've had sex even if the accident had not occurred. He wants $ for something that "might" have happened. Bullshit. Too many variables could've affected that.

But here is the key thing for me> The husband wasn't deprived of sex with his wife. He wasn't deprived of having an orgasm during sex with his wife. Call it what it is> he was deprived of his "usual" method of sex with his wife.

Most every man I know would be completely happy to egage in different methods of sex with his wife. Am I wrong about this-- most every man is happy with the proceedings if he comes out of it with an orgasm-- isn't this the case for virtually every man?

Is a husband to throw a hissy fit and be rewarded b/c his injured wife cannot bring him to orgasm in the usual manner?

Also, if the wife is having sex twice a week, she will be willing to adjust to her infirmity and have sex with her husband in a fashion that will not cause further injury. If it's a wife's habit to have sex twice a week, and she is not willing to adjust in this fashion, then she is a bit of a shrew, and the husband does not deserve to be rewarded b/c his wife is a bit of a shrew.

Based on my life experiences, if I was in the jury room that's what I would tell my fellow jurors.

Well hell, I was married from the age of 21 to 39, and I'd gone without sex MANY times for periods as long as that. Hell, almost everybody deployed to Iraq is in that spot as we speak.

Is this even provable? Hubby and wife could have going at it like bunnies on viagra and if they are both in court saying they couldn't how would you prove otherwise?

I hate this claim -- it's one of the reasons that I do not want to be a plaintiff's attorney. It's one of those "throw everything out there and see what sticks" claims.

As a juror, I would be turned off by it, and if at all permissible under the jury instructions, I would avoid awarding even a cent to this claim.

My opinion: suck it up. I could see if the wife was seriously injured and completely incapacitated -- then maybe an award for this claim would be appropriate. But in this case, where she was quickly rehabilitated, I don't think it's worth much.

Haven't most (or at least many) states abolished the cause of action for loss of consortium? Or am I thinking of dower and curtesy? Or maintenance and champerty, which I know is getting far away from the subject, but then I guess I'm just picking medieval-sounding archaic torts off the top of my head.

I'm definitely with Ginger on this: if I could not find anything but that the evidence met the plaintiff's burden of proof, then the typical one dollar in nominal damages.

gcotharn in Texas: "most every man is happy with the proceedings if he comes out of it with an orgasm" - The sexism of this statement is only exceeded by its wrongness. If I had to guess then I would say that you have been sleeping with the wrong men.

It seems that a loss of consortium case would only be justified if it could be proven that the injured spouse were obviously milking the minor injuries to avoid "regular duties" as a spouse for an extended period.

Tough one. If, as Annika says, the defendant was negligent then you might be inclined to find for the plaintiff because, hey, the defendant screwed up and why should the plaintiff pay for his mistake(As for how much? I dunno. What does the law allow?)? However, isn't that what "pain and suffering" rewards are about? If he's just piling it on, I'd have a hard time justifying an award for this.
All this of course assumes a fair minded jury. Good luck with that.

Russ

People are wasting their lives and those of their fellow man in order to sue for 'consortium'? this is f'ing ridiculous.

gcotharn,

Lots of tort damages are based on what "might" have happened. I.e., if you negligently run me down in your car tomorrow, my family can sue for wrongful death and recover for, e.g., all the love, affection and guidance that my wife and kids won't get from me that they presumably would've gotten in the future, all the money I would've earned that would've benefitted them, etc. But of course if you hadn't run me down I might have died tomorrow in a freak garbage disposal accident, or I might have run off to Bolivia with my secretary and left my family high and dry. We could presume I would've done those things (in which case my family is shit outta luck), or we could presume that I would've lived a relatively normal life, and make some estimates of what the future would've looked like if that had happened. Either assumption going to be somewhat unfair to lots of people. So we have to decide who it's fairer to be unfair to: the innocent victim, or the negligent asshole? The law generally takes the approach that if you've gotta be unfair to someone, better the negligent asshole than his victim. Makes sense to me. Why shouldn't you be the one who has to "suck it up" if, in fact, you're a negligent asshole? (It's just a hypo, man, don't take it personally.)

Stephen,

Sworn, in-court testimony is evidence. Many people really struggle with that concept, but it's how our judicial system works. (Shit, that's what a trial is all about!) If I get on the stand and say it, and the jury buys it, that's "proof." Say you're in the bathroom of the local alehouse, and Joe Schmoe comes in, gives you a dirty look, and punches you in the nose for no reason at all. You defend yourself, and in the process Joe gets a mouthful of broken teeth. There are no other witnesses. The cops come. Joe mumbles, "that guy assaulted me in the bathroom; I defended myself." You're arrested and charged with assault. You tell your story on the stand, and claim self-defense. Joe tells his story on the stand. The jury believes Joe, and convicts you. "But," you say, "it was self-defense." As your lawyer, I say, "that doesn't matter now; the jury didn't believe you." This sort of thing happens all the time.

The point of law suits is to compensate people for their loss, to put them in as good of a postion as if the wrongdoing did not happen. If loss of consortium is not compensated, then the full social harm is not paid for by the defendant. Without having to pay for the full harm, the defendant would be "under-deterred" from such negligence in the future.

Even though I'm a defense lawyer, I think these damages are appropriate. I'd award $50/day for the period the wife was laid up (and the husband wasn't getting laid).

This is by no means an abuse of the legal system, in my opinion. A family is a unit, and if the wife is hurt, so is the husband, and the defendant should pay for the harm to both if found guilty.

Annie,

They haven't presented any evidence on amount of damages? No "this is what it'd cost to hire a maid to do the equivalent things?" Nothing like that? (I suppose presenting evidence of what hookers charge might not fly with the judge -- though you are in California, aren't you?!) OK, fine. Let's split the diff: 10 weeks. Say sex twice a week. (If I don't find their testimony on that credible, maybe I reduce it to something less, but right now I'll assume it's true.) Missed roughly 20 "encounters." Call those $100 each. Light cleaning from a maid service every week, say $50 per. $2500 damages. I might've gone for more if the jackass had put on some evidence -- or less if you put on some evidence giving me reason to think $2500 was too much.

And yes, I think remedies for loss of consortium have been abolished in many states. (I don't recall who asked that, but someone did.)

I think the husband deserves at least $300 for each "missed encounter" not including interest. Screw the "maid service" (so to speak).

Matt,

I understand the nature of the system. I was merely answering the question of how I would think of it if I were on the jury. Having noting to base a decision on but the testimony of the people who are hoping to collect would make me a very skeptical juror.

If there were independent corroboration of the twice a week prior to the injury as well as the lack of intercourse following I would, as a juror, likely agree with damages.

Sore neck and sore back? Fuck them!

You've got a mouth bitch, learn to use it!

Next case.

Loss of consortium is, after all, a derivative claim. The husband will recover nothing, even if the wife was injured, if there is no negligence. It's also a bitch to disprove. Generally, if you have to get to the point of proving that loss of consortium didn't happen, you've already lost.

But my experience in Mississippi tells me that people aren't very sensitive to loss of consortium claims without serious injury.

By Scipiio--"Generally, if you have to get to the point of proving that loss of consortium didn't happen, you've already lost.

But my experience in Mississippi tells me that people aren't very sensitive to loss of consortium claims without serious injury."

These are good points. I think the REASON juries aren't very sensitive to loss of consortium claims is because-- absent serious injury-- loss of consortium need not to have happened. Juries instinctively know that the worst that happened was loss of the USUAL METHODS of consortium. For a short period of time, attempting to recover damages for such a loss is bad form.

By Matt--"So we have to decide who it's fairer to be unfair to: the innocent victim, or the negligent asshole? The law generally takes the approach that if you've gotta be unfair to someone, better the negligent asshole than his victim. Makes sense to me. Why shouldn't you be the one who has to "suck it up" if, in fact, you're a negligent asshole?"

I thought this post was an excellent tutorial. I was going to say there really wouldn't be much "sucking up" required in this instance, but. . .

By StumpJumper--"gcotharn in Texas: 'most every man is happy with the proceedings if he comes out of it with an orgasm' - The sexism of this statement is only exceeded by its wrongness. If I had to guess then I would say that you have been sleeping with the wrong men."

OK, I do want a more encompassing experience than mere orgasm implies. However, THIS husband and wife could certainly enjoy that type of encompassing experience in spite of her injuries. What they REALLY want compensation for is lack of "usual methods" of bringing the husband to orgasm. Anything other than usual method of achieving orgasm- such as emotional closeness, etc., was certainly not denied to this couple. Unless you want to argue that emotional closeness, etc., can only be achieved in the course of enacting specific sexual practices.

Once again, you all prove beyond a doubt, that i have the best visitors in the blogosphere. i can't tell you how much this interesting comments thread helps.

Closing arguments tomorrow. i'll let you know how we do.

I'm a day late on this, but what about the vows they took on the day they got married?

For better or worse, in sickness and health...

If I were on that jury, I wouldn't award the husband a penny. Dealing with those "losses" is a part of life. Get over it.

Jen,

Why isn't dealing with a crippling auto accident "part of life?" I mean, shit happens, right?

If you wrongfully hurt people, you should make them whole to make amends for your wrongdoing. In many cases that's not exactly possible, so we approximate it through money damages. And what's wrong with that?

Actually, kidding aside, I'd say I'm with Jen and Ginger on this one. Might be a reason why my ex-wife and I still enjoy each others company.

Matt, I don't have a problem with penalizing a defendant if they were clearly responsible for wrongdoing. My personal opinion, without knowing the particulars of this case, is that the reasons this guy is suing (because his wife couldn't do housework and have sex for a short time) are a little ridiculous - dare I say, frivolous? Accidents happen all the time. They're part of life. My point in my original comment is that no one is guaranteed that their spouse will be able to perform their duties at all times because life happens. That's what "for better or worse, in sickness and health" means.

Our society is way too litigious - trying to blame others for all kinds of unfortunate things that happen. That's life. Get over it and do the best you can.

You all have may have issed one important piece of this. What about the loss of one's ability to provide the day to day support that most families in today's dynamic environment rely on? Say the injured was a handyman and as a result of the injuries could no longer; or for a period of time could not; do the mechanic duties on the family car, keep up with lawn maintenance, etc. As a direct result of the injuries, the family realizes a financial burden that would otherwise not happen. In another example, say the injured was a wife who had primary responsibility; because the husband had a demanding job; for transporting children to sporting activities, music lessons etc. Suddenly the family must make arrangements for baby sitting, or negotiate transportation that could have an economic impact. Should the injured Party and their family bear the financial burden of another’s fault? While I understand the concepts behind some of the rather crude comments relative to sexual pleasures and how to relieve them, loss of consortium is much more than just intimacy between a husband and wife and the ability to "get your rocks off". Before making a rash decision “to fry the bastard” I believe many more factors must be considered.

You all have missed one important piece of this. What about the loss of one's ability to provide the day to day support that most families in today's dynamic environment rely on? Say the injured was a handyman and as a result of the injuries could no longer; or for a period of time could not, do the mechanic duties on the family car, keep up with lawn maintenance, etc. As a direct result of the injuries, the family realizes a financial burden that would otherwise not happen. In another example, say the injured was a wife who had primary responsibility; because the husband had a demanding job; for transporting children to sporting activities, music lessons etc. Suddenly the family must make arrangements for baby sitting, or negotiate transportation that could have an economic impact. Should the injured Party and their family bear the financial burden of another’s fault? While I understand the concepts behind some of the rather crude comments relative to sexual pleasures and how to relieve them, loss of consortium is much more than just intimacy between a husband and wifeb and "getting your rocks off". Before making a rash decision “to fry the bastard” I believe many more factors must be considered.

You all have missed one important piece of this. What about the loss of one's ability to provide the day to day support that most families in today's dynamic environment rely on? Say the injured was a handyman and as a result of the injuries could no longer; or for a period of time could not, do the mechanic duties on the family car, keep up with lawn maintenance, etc. As a direct result of the injuries, the family realizes a financial burden that would otherwise not happen. In another example, say the injured was a wife who had primary responsibility; because the husband had a demanding job; for transporting children to sporting activities, music lessons etc. Suddenly the family must make arrangements for baby sitting, or negotiate transportation that could have an economic impact. Should the injured Party and their family bear the financial burden of another’s fault? While I understand the concepts behind some of the rather crude comments relative to sexual pleasures and how to relieve them, loss of consortium is much more than just intimacy between a husband and wife and the ability to get one's "rocks off". Before making a rash decision “to fry the bastard” I believe many more factors must be considered.

Loss of Consortium, I do know applies to marital couples. What about when a person is injured and they are living with a person (female, male, do they consider that loss of consortium towards the mate in which they are living or just applies only to marital relationships.

In California, you have to be married.

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