Husbands and wives have traditionally been entitled to recover damages for "loss of consortium." In cases where a spouse is severely injured or killed, the non-injured spouse will typically sue the wrongdoer for her loss of consortium. The resulting damages generally represent her inability to enjoy the same love, affection and companionship that she did prior to her spouse's injury.
In recent years, many jurisdictions have similarly recognized a parent's claim for loss of a child's consortium, or "filial consortium." Filial consortium damages are intended to compensate the parent for various attributes of the parent-child relationship, including, for example, affection, companionship, solace and care. Although some jurisdictions allow filial consortium damages in cases where the child is severely injured, this article will focus on parents' wrongful death claims with respect to a deceased child.
Recovery for Wrongful Death of a Child: A Historical Perspective
In the early 20th century, largely based on general principles of English law, wrongful death statutes typically limited damages to economic losses; i.e., those losses that could be objectively measured by a monetary standard. For this reason, when parents sued for the wrongful death of a child, the damages award was limited to the value of the child's services and earning capacity; e.g., the child's performance of farm chores or work for wages.
Due to changing societal and economic conditions, the American legal system no longer exclusively values children according to their monetary contributions to the family. Instead, children are valued for their love, affection, companionship and society. As a consequence, modern courts acknowledge that the value of a child's consortium far exceeds the economic value of the child's services.
Modern Legal Authority: Loss of Filial Consortium
In wrongful death actions, most jurisdictions permit parents to recover damages for loss of consortium. Although the law varies from state to state, filial consortium damages are usually available pursuant to the state's wrongful death statute. While some states have set forth explicit statutory language to provide for filial consortium damages, other states permit parents to recover based on judicial interpretation of the statute. The law similarly varies with respect to whether a parent may recover for the loss of an adult child.
Though not exhaustive, the following examples are illustrative of state law regarding filial consortium damages in wrongful death actions:
- Texas allows parents to recover consortium damages in wrongful death cases.
- Oklahoma's wrongful death statute expressly permits recovery for the "loss of companionship of the children and parents of the decedent."
- In Tennessee, parents may recover filial consortium damages in wrongful death actions. Tennessee's statute allows recovery of filial consortium damages as part of the pecuniary value of the decedent's life.
- Florida's Wrongful Death Act states, "Each parent of a deceased minor child may...recover for mental pain and suffering from the date of injury [causing death]. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors."
- In Kentucky, parents may recover for the loss of affection and companionship of a minor child.
- Illinois permits parents to recover for the loss of society suffered upon the wrongful death of a minor child.
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