Gillespie-Linton v. Miles

BLOOM, Judge. Mary Jane Gillespie was driving her automobile on Old Georgetown Road on August 28, 1979, when her car collided with a vehicle driven by Beverly Ann Miles. As a result of the collision, Miss Gillespie sustained personal injuries that ⁴⁸⁷ required medical attention. On September 1, 1979, Miss Gillespie married Kevin Peter Linton.

Thereafter, the Lin-tons, appellants, filed a two count declaration against Beverly Ann Miles, appellee, in the Circuit Court for Montgomery County. The first count of the declaration sought damages for the injuries suffered by Mary Jane; the second count asserted a claim by both Mary Jane and Kevin for loss of consortium. Appellee admitted liability, and the court directed a verdict in favor of appellants on the issue of liability as to the first count but granted appellee’s motion for summary judgment as to the second count. The case then proceeded to trial on the issue of damages as to the first count.

The jury returned a verdict in the amount of $45,000 and judgment was entered thereon. Appellants took this appeal contending that the trial court erred in granting appellee’s motion for summary judgment. Appellee then filed a cross-appeal contending that (1) the trial court erred in allowing the jury to consider future pain and suffering as an element of damages and (2) the trial court erred in allowing the jury to consider lost wages as an element of damages. Appellants moved to dismiss the cross-appeal as moot.

A. Loss of Consortium Under the common law, a husband had enormous control over his wife and her property. Concomitant with that right of control was his right to her services, society, and exclusive sexual attentions. While modern law no longer recognizes a wife as something akin to her husband’s chattel, it still “recognize[s] a husband’s rights to the services, society and sexual attentions of his wife, and if she is injured by the defendant’s tort, the husband is allowed to recover when his rights of consortium are thus affected.” D. Dobbs, Handbook on the Law of Remedies § 8.11 (1973) (footnote omitted), see also, W. Prosser, Law of Torts, § 124 (4th ed. 1971). Today, in Maryland, a loss of consortium action is not founded on a husband’s proprietory rights in his wife but, rather, on a recognition of “a right to recover for an injury to the marital entity. ...” Deems v. Western Md. ⁴⁸⁸ Ry., 247 Md. 95, 107 , 231 A.2d 514 (1967).

Appellants contend that “special circumstances and issues of equity and fairness .. . call for the expansion of the right to recover for loss of consortium” to couples who marry shortly after one of them suffers an injury at the hands of a negligent third party. Appellants rely heavily on cases from other jurisdictions which they believe support their contention. The United States District Court for the Eastern District of Pennsylvania held, in Sutherland v. Auch Inter-Borough Transit Co., 366 F.Supp. 127, 134 (E.D.Pa.1973), that Pennsylvania law would permit a loss of consortium action “where, at the time of the accident, plaintiffs were engaged to be married and the wedding date was less than a month away.” The District Court engaged in little analysis in reaching this conclusion and, in fact, “[n]o rationale is offered to support the departure from the traditional elements of a loss of consortium claim.” Childers v. Shannon, 183 N.J.Super. 591, 593 , 444 A.2d 1141, 1142 (Law Div.1982). Although the Pennsylvania appellate courts have not had occasion to address the Sutherland decision, lower courts in that state have rejected Sutherland as not being an accurate description of Pennsylvania law.

The Court of Common Pleas of Fayette County, in Rockwell v. Liston, 71 Pa.D. & C.2d 756 (1975), held that a wife has no cause of action for loss of consortium where the injury to the husband occurred while the parties were engaged but one month before they were actually married. The Rockwell court expressly rejected the federal court’s conclusions in Sutherland and pointed out that prior to Sutherland state lower courts had “held that there is no cause of action unless the parties are married on the date of the accident.” Id. at 757 (citations omitted). The court then stated that it was of the opinion that the Supreme Court would be unwilling to extend the rule where there is, in fact, no marriage. The plaintiff-wife advances the theory that there should be a determination made in each case as to whether the relationship was such between the parties prior to the accident that marriage was reasonably foreseeable.

We ⁴⁸⁹ feel that this is too vague and indefinite a standard to apply in determining as to whether or not a cause of action exists. Id. at 758. Similarly, the Court of Common Pleas of Franklin County held that “[i]n Pennsylvania it is clear that a husband cannot recover for loss of consortium of his wife where the cause of action arose prior to the marriage. ... ” Akers v. Martin, 14 Pa.D. & C.3d 325, 328 (1980) (citations omitted). At the time of the accident, the plaintiffs were engaged and planning to be married in three days.

As a result of the accident, however, the wedding was postponed for one-and-a-half months. While recognizing the close proximity in time between the defendant’s tortious conduct and the plaintiff’s actual marriage, the court nonetheless sustained the defendant’s demurrer. Appellants also point to Bulloch v. United States, 487 F.Supp. 1078 (D.N.J.1980), as support for nonmarital loss of consortium claims. David and Edith Bulloch were married on June 5,1951, and resided together in the same household.

In late April 1974 they separated. Subsequently, on February 17,1977, the Bullochs were divorced. Sometime prior to May 21, 1977, however, they reunited and agreed to begin living together again. On May 21, David suffered the injury which was the cause of the litigation and was consequently hospitalized.

During his hospitalization, “he abandoned his separate living quarters, his lease was terminated and all of his belongings were returned to [the] marital abode.” Id. at 1081 . When David was discharged from the hospital in September 1977, he and Edith began residing together again at the marital home. Edith, in an affidavit filed in opposition to the defendant’s motion for summary judgment, related that the couple had intended to remarry but that they were advised that since the accident had left David impotent any marriage ceremony “would be of no effect.” Id. The Bullochs then brought suit alleging, inter alia, loss of consortium. ⁴⁹⁰ The District Court, aware that the question presented was a novel one, “concluded ... that in New Jersey proof of a legal marriage is not an essential element of a consortium claim.” Id. at 1079 .

The court made several observations to support its conclusions. It first noted that nonmarital cohabitation is a lawful practice in New Jersey. It then determined that the public policy favoring marriage was outweighed by “[t]he strong New Jersey policy of compensating those whose injuries are proximately caused by the tortious conduct of others.. .. ” Id. at 1085 . Finally, the court noted that the policy concerns which prohibit children from bringing consortium-type actions for injuries to their parents 1 grow out of the unique relationship between parent and child and “do not, therefore, present a bar to recognition of Edith Bulloch’s claim.” Id. at 1087 .

Thus, the court held “that the New Jersey courts would permit a cohabitant who has suffered the same type of injuries as a spouse to bring an action for loss of consortium.” Id. The District Court, however, recognized that that particular holding did not, by itself, give Edith Bulloch standing to bring her loss of consortium action. It was undisputed that David and Edith were not yet living together on the day of the accident. Indeed, the court stated that “[t]he question remains to be examined as to whether a spouse in Edith Bulloch’s circumstance would be entitled to recover.

In particular, does the undisputed fact that she was not living with David Bulloch on the day of the accident, bar her from recovery.” Id. The court answered that question in the negative and thus allowed Edith to present her case for loss of “services, aid, comfort and conjugal fellowship of the type typically shared by spouses. .. . ” Id. at 1088 . The court did not think that the mere fact that David and Edith were not living together should bar her claim. In an action brought either by a spouse or a cohabitant, the question of actual damage and degree of damages ⁴⁹¹ must be left to the factfinder.

In today’s world, spouses occasionally live apart, yet it would be foolish to suggest that it logically follows from that fact alone that services, aid, comfort and conjugal fellowship are not present in the relationship. Id. Thus, the district court not only held that cohabitants can sue for loss of consortium but it also held that, under certain circumstances, “non-cohabitating cohabitants” can bring such an action. Not unlike the Pennsylvania courts’ reactions to Sutherland , the New Jersey courts have viewed Bulloch in an unfavorable light and have declined to follow it.

The Superior Court of New Jersey, Law Division for Cumberland County, held that marriage at the time of injury is a prerequisite to a claim for loss of consortium. Childers v. Shannon, supra. There, the plaintiffs, pointing to Bulloch , sought to recover damages for loss of consortium stemming from an accident that occurred about two months prior to their wedding. The court rejected the holding in Bulloch and. granted the defendants’ motion to dismiss.

The court recognized that “[i]n New Jersey, entitlement to recovery for loss of consortium is based on the plaintiffs’ interest in their relationship with one another. ...” 444 A.2d at 1142 (citation omitted). The court then noted that [mjarriage, however, is the only legal touchstone by which the strength of a male-female relationship may be tested. It is not the function of this court to sift through the myriad relationships of a party in a negligence action to determine which of those near and dear have suffered an injury proximately caused by tortious conduct. Should this court allow this plaintiff’s claim for loss of consortium, other courts will be forced to determine which plaintiffs have relationships sufficiently meaningful to entitle them to claim consortium.

Plaintiffs here were engaged to be married at the time of the accident; how long an engagement will support a claim? One month? One week? “Going steady”? Or is cohabitation to be the ⁴⁹² test, as it apparently was in Bulloch?

Again: For how long? Was there joint payment of rent? Grocery bills? Presumably, when parties wish social and legal recognition of their relationship, they marry.

Id. at 1142-1143. Similarly, the Appellate Division of the Superior Court has held that “[t]he right of recovery for loss of consortium resulting to a wife by reason of an injury to her husband, is founded upon the marriage relation. Absent such relationship, the right does not exist, and thus no recovery may be had for loss thereof.” Leonardis v. Morton Chemical Co., 184 N.J.Super. 10, 11 , 445 A.2d 45 (A.D.1982) (citations omitted). The court simply stated that it found no merit in and declined to follow Bulloch. 445 A.2d at 46 .

We are aware of only one state court decision allowing a person who is not married at the time of an injury to present a cause of action for loss of consortium. Butcher v. Superior Court of Orange County, 139 Cal.App.3d 58 , 188 Cal.Rptr. 503 (1983). In that case, Paul and Cindy Forte had begun living together on September 11, 1969. Thereafter, Cindy used Forte as her last' name, and the couple had presented themselves as husband and wife although they were never actually married.

Paul was walking across the street on March 28, 1981, “when he was allegedly struck by Ralph Butcher’s Volkswagen.” 188 CakRptr. at 504. As a result of that collision, Paul sustained a fractured neck, forearm and leg and a severe cerebral contusion. Paul sued Ralph for personal injuries, and Cindy sued for loss of consortium. Ralph moved for summary judgment on Cindy’s consortium claim, but the trial court denied the motion.

Ralph then petitioned the Court of Appeal for the Fourth District for a writ of mandate to compel the trial court to grant the motion for summary judgment. The appellate court reasoned that the real theory of the cause of action for loss of consortium rested in compensating the damage “to what may be called a relational interest. An interference with the continuance of the relation, unim ⁴⁹³ paired, may be redressed by a tort action.” Id. at 505 (citation omitted). The court then addressed the “policy questions which would arguably limit recognition of the relational interest to legally married couples ...” Id. at 506.

The court concluded that, in determining whether an unmarried cohabitant should be permitted to recover for loss of consortium, the critical question is foreseeability. We adhere to the view that the courts must determine on a case-by-case basis what an ordinary person may reasonably foresee. The incidence of cohabitation without marriage in the United States increased by 800 percent between 1960 and 1970. . . . The injury to the de facto spouse, like the injury to a legally married spouse, is real, direct, and foreseeable.

We believe that, in the conditions of modern society, the possibility that an adult may be cohabitating with another is neither unexpected nor remote; in short, it is reasonably foreseeable. Id. at 510-511 (citation omitted). Thus, the court held “that an unmarried cohabitant may state a cause of action for loss of consortium by showing that the nonmarital relationship is both stable and significant.” Id. at 512. In so holding, the Butcher court recognized that loss of consortium is predicated upon damage to a relationship in existence at the time of injury.

Butcher merely allows a plaintiff to substitute cohabitation for marriage as a necessary element in a consortium action. It is concerned, therefore, with injuries to “quasi-marital” relationships. To recover under Butcher a plaintiff must show (1) cohabitation and (2) the existence of a “stable and significant” relationship. In limiting the possibility of recovery to couples who had a “stable and significant” relationship at the time of injury, the court stated that the loss of consortium action protects the parties’