When a person is seriously injured by someone else’s negligence, he or she may have a personal injury claim. The injured person’s spouse may also have a claim for loss of consortium. A loss of consortium claim compensates the spouse of an injured person for the damages suffered by that spouse, including loss of society and companionship of the injured person as a result of the injury.
The Fifth District recently ruled on a case in which the injured person passed away before the personal injury and loss of consortium claims were resolved. The issue was whether the loss of consortium claim could continue. This case arose when the husband was allegedly injured while riding a roller coaster at a theme park. The husband and wife jointly filed suit against the theme park for personal injury and loss of consortium. The husband died while the case was pending. The parties were in dispute as to whether the injuries caused his death. The wife did not timely move to substitute herself as personal representative and the trial court dismissed both the personal injury and loss of consortium claims. The wife then filed a motion for rehearing on the loss of consortium issue, which was denied.
This case is not the first time the Fifth District has addressed this issue. In a previous case, the Fifth District held that a wife’s loss of consortium claim survives the death of her husband, even though it is derivative of his claims. The Third District, however, held in a similar case that a loss of consortium claim did not survive the death of the injured spouse. In its case, the Third District certified conflict with the previous Fifth District decision and suggested that a derivative cause of action could not exist absent a primary cause of action.