Family Members Can Recover for Injuries to their Loved Ones
One of the privileges I have as a lawyer is working with people and their families to make amends after an unfortunate event. Sometimes my clients have been in a minor fender-bender. Car crashes can be annoying disruptions to plans, but they are usually not life-altering. Other times, someone’s bad decision or carelessness result in debilitating injuries or wrongful death, leaving my clients’ lives forever changed.
One can imagine that these catastrophic injuries – resulting in permanent limitations, job loss, disability or even death – affect not only the injured individual, but also the physical, emotional and financial well-being of those closest to them. Wisconsin personal injury law recognizes this reality and provides for compensation to spouses, parents and children for their losses resulting from their loved one’s injury or death. This post discusses two categories of general damages recoverable for certain family members.
1. Loss of Consortium
A spouse can recover loss of consortium damages when their partner has suffered a disabling injury which deprives the spouse of the same benefits of the relationship with their partner they had enjoyed before the injury occurred. Wisconsin’s jury instructions define “consortium” this way:
[It] involves the love and affection, the companionship and society, the privileges of sexual relations, the comfort, aid, advice and solace, the rendering of material services, the right of support, and any other elements that normally arise in a close, intimate, and harmonious marriage relationship.
Wis. JI-CIVIL 1815.
Examples of Loss of Consortium Damages
Loss of consortium damages are personal, specific to and wholly dependent on the relationship between spouses. Every couple and family will have unique sets of losses after an individual suffers a debilitating injury. For instance:
- If a couple loved to play tennis together, but will not be able to share in that activity after an injury to one spouse, the loss would fall under the category of “consortium.”
- If one spouse had always mowed the lawn, but now the injured spouse is no longer able to provide that service to the family, the non-injured spouse is legally entitled to compensation for the loss.
- If the couple’s intimacy and sex life has changed as a result of the injury, that too is relevant to consortium damages.
Though imperfect, the law’s intent is to make the couple whole – through compensation – for all losses they have suffered.
2. Loss of Society and Companionship
Parents and children can recover for the loss of society and companionship when their loved one is injured or killed. Minor siblings, spouses and domestic partners can also recover for the loss of society and companionship if they lose their loved one. Currently, in Wisconsin, damages are capped in wrongful death actions to $500,000 in the case of a deceased minor and $350,000 in the case of deceased adult. Wis. Stat. § 895.04.
Wisconsin defines “society and companionship” as “the love, affection, care, and protection” the affected party would have received had the incident not occurred. A number of factors will be taken into consideration, including age, the nature of the past relationship between the individuals, and even the character, personality and disposition of the individuals involved.
Examples of Damages for Loss of Society and Companionship
Again, determining damages for loss of society and companionship is very personal and fact-specific, to be determined by a judge or jury after hearing witness testimony and arguments from the injured person’s attorney. For example:
- A five-year-old child may be awarded more in damages for the wrongful death of their parent than would a 17-year-old child, as the 5-year-old has lost their parent for many critical years of development.
- A parent with full-time placement and a strong relationship with their injured minor child will likely recover more in damages than a parent who lives in another state and only sees their child a few times a year.
Examples of Family Damages Awards from Wisconsin Case Law
Jury awards vary greatly depending on the facts and circumstances of the injuries and the relationship between the family members. For instance:
- A wife whose husband was in a serious car crash – suffering brain damage and permanent loss of normal functioning – was awarded $1,000,000 in loss of consortium damages. The two had been married about 30 years. Price v. Hart, 166 Wis. 2d 2, 480 N.W.2d 568 (Ct. App. 1991).
- A jury awarded $21,000 for a husband’s pain and suffering and wife’s loss of consortium. This case involved a relatively minor crash where the husband suffered injuries resulting in about $12,000 in past medical expenses. Fischer v. Steffen, 2011 WI 34, ¶¶87-90.
- In a wrongful death action, a widow recovered damages for her pecuniary loss that resulted from her husband’s death but nothing for loss of society and companionship. The evidence demonstrated serious marital problems, including that her deceased husband was alcoholic, abusive and engaged in an extramarital affair. Strelecki v. Firemans Ins. Co., 88 Wis. 2d 464, 479-80 (1979)
Families of Injured Individuals Have a Right to Recover Damages
Wisconsin law is designed to protect families when tragedy occurs. But the law only works when the whole story is told. It is important for clients to be fully transparent about all the ways their lives have changed in order for personal injury lawyers to serve as their best advocates under the law.
At Hawks Quindel, S.C., we truly care about our clients. Contact a personal injury attorney if you need help.
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