California Jury Instruction CACI 3920 Loss of Consortium (Noneconomic Damage)

New September 2003; Revised December 2010

Nakase Wade | California Business Lawyers & Corporate Lawyers

Loss of consortium is considered a noneconomic damages item under Proposition 51. (Civ. Code, § 1431.2(b)(2).) Loss of future consortium is recoverable, including loss of consortium because of reduced life expectancy. (See Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 799–800 [108 Cal.Rptr.3d 806, 230 P.3d 342].) In such a case, this instruction may need to be modified.

Give the second and third paragraphs if recovery for loss of future consortium is sought. Future noneconomic damages should not be reduced to present value. (See Salgado v. County of L.A. (1998) 19 Cal.4th 629, 646–647 [80 Cal.Rptr.2d 46, 967 P.2d 585].)

•Noneconomic Damages for Loss of Consortium. Civil Code section 1431.2(b)(2).

•“We … declare that in California each spouse has a cause of action for loss of consortium, as defined herein, caused by a negligent or intentional injury to the other spouse by a third party.” (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 408 [115 Cal.Rptr. 765, 525 P.2d 669].)

•“There are four elements to a cause of action for loss of consortium: ‘(1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; [¶] (2) a tortious injury to the plaintiff’s spouse; [¶] (3) loss of consortium suffered by the plaintiff; and [¶] (4) the loss was proximately caused by the defendant’s act.’ ” (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927 [142 Cal.Rptr.3d 230].)

•“The concept of consortium includes not only loss of support or services; it also embraces such elements as love, companionship, comfort, affection, society, sexual relations, the moral support each spouse gives the other through the triumph and despair of life, and the deprivation of a spouse’s physical assistance in operating and maintaining the family home.” (Ledger v. Tippitt (1985) 164 Cal.App.3d 625, 633 [210 Cal.Rptr. 814], disapproved of on other grounds in Elden v. Sheldon (1988) 46 Cal.3d 267, 277 [250 Cal.Rptr. 254, 758 P.2d 582].)

•“Since he has no cause of action in tort his spouse has no cause of action for loss of consortium.” (Blain v. Doctor’s Co. (1990) 222 Cal.App.3d 1048, 1067 [272 Cal.Rptr. 250].)

•“The California Supreme Court in Rodriguez, supra, 12 Cal.3d at page 409, expressly recognized the right to recover damages for the ‘loss or impairment’ of the plaintiff’s rights of consortium, and we see no basis to conclude that a loss of consortium must be so extensive as to be considered complete in order to be compensable. Instead, a partial loss, or diminution, of consortium is compensable.” (Mealy v. B-Mobile, Inc. (2011) 195 Cal.App. 4th 1218, 1224 [124 Cal.Rptr.3d 804].)

•“[S]hould [husband] prevail in his own cause of action against these defendants, he will be entitled to recover, among his medical expenses, the full cost of whatever home nursing is necessary. To allow [wife] also to recover the value of her nursing services, however personalized, would therefore constitute double recovery.” (Rodriguez, supra, 12 Cal.3d at p. 409, internal citations omitted.)

•“For the same reason, [wife] cannot recover for the loss of her earnings and earning capacity assertedly incurred when she quit her job in order to furnish [husband] these same nursing services. To do so would be to allow her to accomplish indirectly that which we have just held she cannot do directly.” (Rodriguez, supra, 12 Cal.3d at p. 409.)

•“The deprivation of a husband’s physical assistance in operating and maintaining the home is a compensable item of loss of consortium.” (Rodriguez, supra, 12 Cal.3d at p. 409, fn. 31, internal citations omitted.)

•“Although the trial court labeled the damages awarded [plaintiff] as being for ‘loss of consortium’ (a noneconomic damages item under Proposition 51), much of the testimony at trial actually involved the ‘costs of obtaining substitute domestic services’ on her behalf (an economic damage item in the statute).” (Kellogg v. Asbestos Corp. Ltd. (1996) 41 Cal.App.4th 1397, 1408 [49 Cal.Rptr.2d 256].)

•“Whether the degree of harm suffered by the plaintiff’s spouse is sufficiently severe to give rise to a cause of action for loss of consortium is a matter of proof. When the injury is emotional rather than physical, the plaintiff may have a more difficult task in proving negligence, causation, and the requisite degree of harm; but these are questions for the jury, as in all litigation for loss of consortium. In Rodriguez we acknowledged that the loss is ‘principally a form of mental suffering,’ but nevertheless declared our faith in the ability of the jury to exercise sound judgment in fixing compensation. We reaffirm that faith today.” (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 933 [167 Cal.Rptr. 831, 616 P.2d 813], internal citations omitted.)

•“We … conclude that we should not recognize a cause of action by a child for loss of parental consortium.” (Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 451 [138 Cal.Rptr. 302, 563 P.2d 858].)

•A parent may not recover loss of consortium damages for injury to his or her child. (Baxter v. Superior Court (1977) 19 Cal.3d 461 [138 Cal.Rptr. 315, 563 P.2d 871].)

•Unmarried cohabitants may not recover damages for loss of consortium. (Elden, supra, 46 Cal.3d at p. 277.)

•Under Proposition 51, damages for loss of consortium may be reduced by the negligence of the injured spouse. (Craddock v. Kmart Corp. (2001) 89 Cal.App.4th 1300, 1309–1310 [107 Cal.Rptr.2d 881]; Hernandez v. Badger Construction Equipment Co. (1994) 28 Cal.App.4th 1791, 1810–1811 [34 Cal.Rptr.2d 732].)

•“ ‘To entitle a plaintiff to recover present damages for apprehended future consequences, there must be evidence to show such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury.’ ” (Bellman v. San Francisco High School Dist. (1938) 11 Cal.2d 576, 588 [81 P.2d 894], internal citation omitted.)

•“[I]n a common law action for loss of consortium, the plaintiff can recover not only for the loss of companionship and affection through the time of the trial but also for any future loss of companionship and affection that is sufficiently certain to occur. In Rodriguez, we held that when a plaintiff’s spouse is permanently disabled as a result of a defendant’s wrongdoing, future (posttrial) loss of companionship and affection is sufficiently certain to permit an award of prospective damages. If instead the injured spouse will soon die as a result of his or her injuries, the future (posttrial) loss of companionship and affection is no less certain. In short, we see no reason to make an exception here to the general rule permitting an award of prospective damages in civil tort actions. Therefore, under long-standing principles of tort liability, the recovery of prospective damages in a common law action for loss of consortium includes damages for lost companionship and affection resulting from the anticipated (and sufficiently certain) premature death of the injured spouse.” (Boeken, supra, 48 Cal.4th at pp. 799–800, internal citation omitted.)

•“[T]he plaintiff in a common law action for loss of consortium may not recover for loss during a period in which the companionship and affection of the injured spouse would have been lost anyway, irrespective of the defendant’s wrongdoing, and therefore the life expectancy of the plaintiff and the life expectancy of the injured spouse, whichever is shorter, necessarily places an outer limit on damages.” (Boeken, supra, 48 Cal.4th at p. 800.)

•“[W]here an injury to a spouse that in turn causes injury to the plaintiff’s right to consortium in the marital relationship is not discovered or discoverable until after the couple’s marriage, and the underlying cause of action thus accrues during the marriage, the plaintiff has a valid claim for loss of consortium even though the negligent conduct may have predated the marriage.” (Leonard v. John Crane, Inc. (2012) 206 Cal.App.4th 1274, 1290 [142 Cal.Rptr.3d 700]; see also Vanhooser, supra, 206 Cal.App.4th at pp. 927–930 [reaching same result].)