Legal Memorandum: Loss of Consortium Claim

Issue: Nationwide, what are the standard arguments against recovery of loss of parental care, comfort and society damages?

There are four traditional arguments against allowing children to recover for the loss of the companionship and society of a negligently injured parent:

• There is no common-law entitlement for a child’s loss of consortium claim.

• Allowing for a child’s loss of consortium claim would result in a multiplicity of suits, duplication of awards and an increase in insurance premiums.

• Evaluating a child’s loss of consortium would be too speculative.

• The issue is one for the legislature, not the courts. 

See B. Mark, Home Alone:  The Nebraska Supreme Court Rejects the Child’s Right to Loss of Consortium for a Negligently Injured Parent in Guenther v. Stollberg, 73 Neb. L. Rev. 432, 440 (1994); M. Delaney, What About the Children? Toward an Expansion of Loss of Consortium Recovery in the District of Colombia, 41 Am. U. L. Rev. 107, 108 (1991).  In states where loss of parental nurture claims are allowed, plaintiffs have successfully refuted these traditional arguments.

To support the contention that there is no common-law entitlement for a child’s loss of consortium, courts rely on the idea that parents are not legally obliged to provide love and affection for their children.  See, e.g., High v. Howard, 592 N.E.2d 818 (Ohio 1992), overruled by Gallimore v. Children’s Hosp. Medical Ctr., 617 N.E.2d 1052 (Ohio 1993).  This kind of reasoning reflects a historic lack of rights […]