California Civil Jury Instructions (CACI)

3920. Loss of Consortium (Noneconomic Damage)

[Name of plaintiff] claims that [he/she] has been harmed by the injury to [his/her] [husband/wife]. If you decide that [name of injured spouse] has proved [his/her] claim against [name of defendant], you also must decide how much money, if any, will reasonably compensate [name of plaintiff] for loss of [his/her] [husband/wife]'s companionship and services, including:

1. The loss of love, companionship, comfort, care, assistance, protection, affection, society, moral support; and

2. The loss of the enjoyment of sexual relations [or the ability to have children].

[Name of plaintiff] may recover for harm [he/she] proves [he/she] has suffered to date and for harm [he/she] is reasonably certain to suffer in the future. No fixed standard exists for deciding the amount of these damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense.

Do not include in your award any compensation for the following:

1. The loss of financial support from [name of injured spouse];

2. Personal services, such as nursing, that [name of plaintiff] has provided or will provide to [name of injured spouse]; or

3. Any loss of earnings that [name of plaintiff] has suffered by giving up employment to take care of [name of injured spouse].

Directions for Use

Depending on the circumstances of the case, it may be appropriate to add after "to be suffered in the future" either "during the period of [name of injured spouse]'s disability" or "as measured by the life expectancy that [name of injured spouse] had before [his/her] injury or by the life expectancy of [name of plaintiff], whichever is shorter."

Insofar as this instruction addresses the loss of a spouse's assistance in operating the household, it is not intended to include the cost of obtaining household services. (See Kellogg v. Asbestos Corp. Ltd. (1996) 41 Cal.App.4th 1397, 1408 [49 Cal.Rptr.2d 256]: "Although the trial court labeled the damages awarded Mrs. Kellogg 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). (See Civ. Code, § 1431.2, subd. (b)(1), (2).)")

Sources and Authority

Civil Code section 1431.2(b)(2) provides, in part: "For purposes of this section, the term 'non-economic damages' means subjective, non-monetary losses including . . . loss of consortium . . . ."

"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].)

"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].)

"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].)

"Rodriguez never mentions the concept of a complete loss of consortium. To the contrary, the opinion speaks of 'loss or impairment of her rights of consortium.' This dichotomy suggests that a diminution of a wife's rights are compensible, and we so hold." (Carlson v. Wald (1984) 151 Cal.App.3d 598, 602 [199 Cal.Rptr. 10], internal citation omitted.)

"[S]hould [husband] prevail in his own cause of action against these efendants, he will be entitled to recover, among his medical expenses, he 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.)

"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], 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. American Airlines, Inc. (1977) 19 Cal.3d 441 [138 Cal.Rptr. 315].)

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.)

Secondary Sources

6 Witkin, Summary of California Law (9th ed. 1988) Torts, §§ 1416-1422, pp. 886-903

4 Levy et al., California Torts, Ch. 56, Loss of Consortium, § 56.08 (Matthew Bender)

California Tort Damages (Cont.Ed.Bar 1988) Loss of Consortium, §§ 2.6- 2.7

15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)

6 California Points and Authorities, Ch. 65, Damages (Matthew Bender)

1 Bancroft-Whitney's California Civil Practice (1992) Torts, §§ 10:10- 10:16

(New September 2003)