The right of a spouse to collect damages for loss of consortium when a husband or wife dies or is seriously injured has long been recognized. The phrase, “loss of consortium” refers to the loss of the benefits of the relationship due to injuries caused by someone else’s negligence. In personal injury law, it is recognized as a claim in its own right.

While most states recognize loss of spousal consortium, fewer recognize loss of filial consortium, which is the loss a parent suffers when a child is seriously injured or killed due to another’s negligence. In Texas, parents are allowed to recover damages for filial loss of consortium – but only in wrongful death cases. Prior to 2003, parents could recover for loss of companionship, society, affection and love of children who survived serious injury, but the decision by the court in Roberts v. Williams made it so that such claims are only valid in wrongful death lawsuits.

(Conversely, children can recover for parental consortium in both injury and wrongful death actions, per the 1990 Texas Supreme Court case of Reagan v. Vaughn).

This does not mean parents should not pursue claims for damages if their child is seriously injured, as there may still be many other valid claims. What’s more, as the recent case of Benda v. Catholic Diocese of Salt Lake City shows, the law can evolve and courts can change their position.

Benda was a case recently before the Utah Supreme Court in which a young student, just 14, suffered life-threatening injuries while he was using a lift to replace light bulbs in the school auditorium, where he was taking a drama course. According to court records, the drama teacher instructed the student to climb to the top of the lift – with no fall arrest system or other protection – and change the light bulb. The teacher then had other students on the ground move the lift while the plaintiff was still on top of the lift.

As was reasonably foreseeable, the student fell off the lift – some 30 feet – and hit his head. He suffered severe, life-threatening injuries, which included traumatic brain injury. Although he did ultimately survive, his injuries were deemed permanent.

His parents filed a personal injury lawsuit against the school district, asserting negligence and vicarious liability, and both asserting a claim for filial loss of consortium for the loss of companionship, services, comfort, society and attention of their son. The high school admitted fault, but moved to dismiss the claim for filial loss of consortium, arguing Utah didn’t recognize it. The court cited a previous decision in which the state high court barred a claim for filial loss of consortium by parents regarding their adult child.

The Utah Supreme Court decided that earlier decision wasn’t binding because the claim in this case concerned a minor child. Further, the court ruled, the spousal consortium statute did not eliminate a cause of action for parents to recover for loss of consortium regarding their children. The court went on to provide some basic guidance, holding that such claims must:

  • Be derivative of the cause of action existing on behalf of the injured person;
  • Not be confined to the period of minority;
  • Meet the definition of serious injury, as set forth by statute.

If your child has been seriously injured in Texas, our dedicated legal team will work hard to protect your legal rights.

Contact our experienced San Antonio personal injury lawyers at (210) 308-8811.

Additional Resources:

Benda v. Catholic Diocese of Salt Lake City, Aug. 25, 2016, Utah Supreme Court

More Blog Entries:

San Antonio Teenager Critically Injured in Bicycle Accident, June 24, 2016, San Antonio Injury Lawyer Blog