NY PJI 2:315
N.Y. Pattern Jury Instr.--Civil 2:315
the usual case it is proper to charge that a verdict in favor of the injured spouse requires a verdict in favor of the derivatively suing spouse, . The evidence should establish causation and show the nature of the pre- accident relationship between the spouses, ; see (long distance marriage); (evidence of husband's alcoholism admissible to controvert evidence of exemplary home life).
Consortium represents the marital partners' interest in the continuance of the marital relationship as it existed at its inception, ; . No definite rule by which to measure recovery for loss of services and society can be stated; the matter is addressed to the sound discretion of the jury, ; . However, where the amount of damages awarded in the derivative action is grossly excessive, the court may order a new trial on that issue, in the absence of a stipulation by plaintiff to accept a lesser sum, see . The damages recoverable include services rendered in a family business, , and the cost of providing a substitute to perform the extraordinary health care services originally rendered by the injured spouse, .
Punitive damages cannot be recovered by a spouse in a derivative action, Annot: . A verdict against a defendant in favor of a spouse in a derivative action but in favor of the defendant against the plaintiff spouse in the same action are inconsistent, Annot: . Moreover, verdicts for the husband and against the wife are inconsistent and should be set aside, ; .
Since the loss of consortium claim is personal to the spouse, it is improper to charge the jury to consider the effect of the injury to the other spouse “on the home, the whole family,” . Under settled New York law, because consortium represents each marital partner's interest in the continuance of the marital relationship as it existed at the inception of the marriage, a loss of consortium cause of action by the spouse of an injured person does not lie if the alleged tortious conduct and resultant injuries occur prior to the marriage, ; . Thus, a husband can not recover for loss of consortium sustained as a result of the wife's exposure to DES while in utero since the wrongful conduct and the injuries occurred prior to marriage, Anderson v Eli Lilly & Co., supra. Likewise, a cause of action does not lie for loss of consortium where, prior to the marriage, the plaintiff's spouse was exposed to, and ingested, a toxic substance that remained in his body and eventually caused illness, but the illness did not occur until after the marriage began, . This is due to the New York rule fixing the occurrence of tortious injury as the date when the toxic substance invades or is introduced into the body, id.
Recovery in the derivative action was limited to the period between the accident and the separation where husband and wife separated after the accident, . Where loss of the enjoyment of sexual relations is properly compensable, the court should prevent defense counsel from using the assertion of such a claim to cast negative aspersions on plaintiff's character, .
A loss of consortium claim must be joined with the injured spouse's claim for illness or bodily harm whenever possible, ; . When the injured spouse releases his or her claim in the settlement of an action, the release bars the other spouse from thereafter commencing a separate action for loss of consortium, Buckley v National Freight, Inc., supra. In
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.