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Trombley v. Starr-Wood Cardiac Group6/16/2000
d with delay in the healing of the wound.
C. The Trial Court Properly Dismissed Dale Trombley's Loss of Consortium Claim.
At the time of her surgery on October 8, 1991, Barbara Trombley was married to Keith Bradrick. Bradrick was a long-time sufferer from Alzheimer's disease and was living in a critical care facility. Dale Trombley, who was recently widowed after forty-five years of marriage, and Barbara met in 1990 and eventually became romantically involved. They began cohabiting in September of 1991. Meanwhile, Barbara continued to visit Bradrick and at some level personally provided care for him. Barbara divorced Bradrick in early May of 1992 and married Dale a few days later.
Dale claims that his premarital relationship with Barbara is entitled to protection in the law of torts. Specifically, he claims that he was a "de facto" spouse at the time of the alleged malpractice and as such is entitled to loss of consortium damages.
Dale's claim is almost completely unsupported by precedent. There are two related rules that bar his claim. The first is that when a person is injured and then marries, the new spouse has no consortium claim. " n injury occurring prior to the marital relationship cannot give rise to a claim for loss of consortium." "Where the injured person received his or her injury prior to marriage, the other spouse upon marriage has no cause of action for loss of consortium of his or her previously injured marriage partner, even though they were engaged to be married at the time of the injury." Second, unmarried cohabitants do not have consortium claims for their partners' injuries which occur during cohabitation. Dale takes issue with this, the second rule.
Butcher v. Superior Court is the case upon which Dale places primary reliance. In that case, an intermediate appellate court in California held that "an unmarried cohabitant may state a cause of action for loss of consortium by showing that the non-marital relationship is both stable and significant." But Butcher was disapproved of by the Supreme Court of California in Elden v. Sheldon, and it seems that no jurisdiction now holds that unmarried cohabitants are entitled to maintain loss of consortium claims.
In declining to expand consortium claims to unmarried cohabitants, the court in Elden noted that the courts have adhered to a bright line in this area because of "the intangible nature of the loss, the difficulty of measuring damages, and the possibility of an unreasonable increase in the number of persons who would be entitled to sue for the loss of a loved one." The court also relied on "the state's interest in promoting the responsibilities of marriage and the difficulty of assessing the emotional, sexual and financial relationship of cohabiting parties to determine whether their arrangement was the equivalent of a marriage . . . ."
Justice Broussard filed a strong dissent in Elden. Briefly, his reasons, and the reasons given by the court in Butcher, are as follows: First, the common law is an "ever-changing malleable body of law distinguished by its ability to adapt to changing times and issues." Second, the "relationship of unmarried cohabitants bears every resemblance to the spousal relationship, including the sexual aspect absent from other relationships, except that the relationship has not been solemnized by a formal marriage ceremony." Third, the significant numbers of unmarried cohabitants in society make such a relationship reasonably foreseeable to the tortfeasor. Fourth, the
egislature has granted unmarried cohabitants the equivalent legal rights provided marital couples in the fields of housing, credit and family relations. De
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