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NY PJI 2:315

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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, De Ordio v Teresi, 65 AD2d 890, 410 NYS2d 418. The evidence should establish causation and show the nature of the pre- accident relationship between the spouses, Christman v Bailey, 38 AD2d 773, 327 NYS2d 966; see Rakich v Lawes, 186 AD2d 932, 589 NYS2d 617 (long distance marriage); Davis v Blum, 70 AD2d 583, 416 NYS2d 57 (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, Buckley v National Freight, Inc., 90 NY2d 210, 681 NE2d 1287, 659 NYS2d 841; Anderson v Eli Lilly & Co., 79 NY2d 797, 580 NYS2d 168, 588 NE2d 66. 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, Millington v Southeastern Elevator Co., 22 NY2d 498, 293 NYS2d 305, 239 NE2d 897; Robison v Lockridge, 230 App Div 389, 244 NYS 663. 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 Van Syckle v Powers, 106 AD2d 711, 483 NYS2d 756. The damages recoverable include services rendered in a family business, Wheaton v Guthrie, 89 AD2d 809, 453 NYS2d 480, and the cost of providing a substitute to perform the extraordinary health care services originally rendered by the injured spouse, Protzman v State, 91 AD2d 853, 458 NYS2d 408.

Punitive damages cannot be recovered by a spouse in a derivative action, Annot: 25 ALR3d 1416. 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: 66 ALR3d 472. Moreover, verdicts for the husband and against the wife are inconsistent and should be set aside, Hagler v Consolidated Edison Co., 99 AD2d 725, 472 NYS2d 340; Watts v Kather, 23 AD2d 815, 258 NYS2d 581.

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,” Fafard v Ajamian, 60 AD2d 853, 400 NYS2d 856. 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, Anderson v Eli Lilly & Co., 79 NY2d 797, 580 NYS2d 168, 588 NE2d 66; Lesocovich v 180 Madison Avenue Corporation, 165 AD2d 963, 561 NYS2d 851. 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, Consorti v Owens-Corning Fiberglas Corp., 86 NY2d 449, 634 NYS2d 18, 657 NE2d 1301. 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, Dooley v Skodnek, 138 AD2d 102, 529 NYS2d 569. 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, Vassura v Taylor, 117 AD2d 798, 499 NYS2d 120.

A loss of consortium claim must be joined with the injured spouse's claim for illness or bodily harm whenever possible, Buckley v National Freight, Inc., 90 NY2d 210, 681 NE2d 1287, 659 NYS2d 841; Millington v Southeastern Elevator Co., 22 NY2d 498, 293 NYS2d 305, 239 NE2d 897. 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 Champagne v State Farm Mut. Auto.

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