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NY PJI 2:315

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N.Y. Pattern Jury Instr.--Civil 2:315

New York Pattern Jury Instructions--Civil

Database Updated December 2009

Committee on Pattern Jury Instructions Association of Supreme Court Justices


2. Negligence Actions

J. Damages

5. Derivative Actions

a. Re Spouse

PJI 2:315 Damages—Derivative Action Re Spouse—Loss of Services

If you find that the injured plaintiff's (husband, wife) is entitled to recover, you will award (husband, wife) damages for the pecuniary loss which you find plaintiff (husband, wife) sustained by the loss of (his, her) spouse's services and society.

In deciding the amount of such damages, you may take into consideration the nature and extent of the (husband's, wife's) services and society before the injury, including (his, her) disposition, temperament, character and attainments; the interest (he, she) showed in (his, her) home; the social life of (his, her) family and in the comfort, happiness, education and general welfare of the members of the family; the services (he, she) rendered in superintending the household, training the children, assisting (his, her) spouse in the management of the business or affairs in which the spouse was engaged, if any; (his, her) acts of affection, love and sexual intercourse and the extent to which the injuries (he, she) sustained prevented (him, her) from performing such services and providing such society. You will award plaintiff (husband, wife) such an amount based upon the evidence and upon your own observation, experience and knowledge conscientiously applied to the facts and circumstances as in your judgment will compensate (him, her) for the pecuniary loss that you find (he, she) has sustained and is reasonably certain to sustain in the future by reason of (his, her) spouse's inability to perform such services and provide such society as a result of (his, her) injuries.


Based upon Millington v Southeastern Elevator Co., 22 NY2d 498, 293 NYS2d 305, 239 NE2d 897; Butler v Manhattan R. Co., 143 NY 417, 38 NE 454; Blaechinska v Howard Mission & Home for Little Wanderers, 130 NY 497, 29 NE 755; Good v Mantaibano, 50 AD2d 885, 377 NYS2d 167; 45 NYJur2d 383–390, Domestic Relations §§ 290–295; Restatement, Second, Torts, § 693, Comment e; see Buckley v National Freight, Inc., 90 NY2d 210, 681 NE2d 1287, 659 NYS2d 841; Liff v Schildkrout, 49 NY2d 622, 427 NYS2d 746, 404 NE2d 1288. Note, however, that under the FELA and the Jones Act there is no right of action for loss of consortium, Spinola v New York C. Railroad, 33 AD2d 74, 305 NYS2d 437; Troy, Loss of Consortium in Federal Employer's Liability and Other Federal Act Cases, 11 For the Defense 102, but as to loss of consortium in an action governed by general maritime law, see Alvez v American Export Lines, Inc., 46 NY2d 634, 415 NYS2d 979, 389 NE2d 461, aff'd, 446 US 274, 100 SCt 1673. A loss of consortium claim cannot be based on employment discrimination, Belle v Zelmanowicz, 305 AD2d 272, 761 NYS2d 26.

There is no right of recovery for loss of consortium in an action for injuries sustained by a firefighter under General Municipal Law § 205-a, Korfman v Parkway Village Associates, 110 AD2d 886, 488 NYS2d 438. However, in an action for injuries sustained by a police officer under General Municipal Law § 205-e, the plaintiff's wife may assert a derivative cause of action, Cammilleri v S & W Realty Associates, 243 AD2d 530, 663 NYS2d 222; see DuBois v Vanderwalker, 245 AD2d 758, 665 NYS2d 460. Deprivation of marital association can be inferred from the nature of the injuries, Murphy v Durmiaki, 36 AD2d 556, 317 NYS2d 584, and, therefore, in

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