Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 8. Duty Problem
Courts have been considerably more reluctant—even in the face of the modern trend—to
allow such claims where the victim parent objects to or refuses to cooperate in the suit. Such
cases typically involve suits sponsored by one parent against a third party for injuries to a second,
now-estranged parent. See, e.g., Jacoby. Brinckerhoff, 735 A.2d 347 (Conn. 1999); J.A.H., ex rel
R.M.H. v. Wadle & Associates, 589 N.W.2d 256 (Iowa 1999).
3. Unmarried Partners
Unmarried partners have typically had no action for loss of consortium. This is generally
true for “unmarried cohabiting couples with a ‘stable and significant relationship . . . parallel to a
marital relationship.’” Elden v. Sheldon, 758 P.2d 582, 588 (Cal. 1988).
In 2003, however, the New Mexico Supreme Court made that state the first jurisdiction in
the United States to allow loss of consortium actions by unmarried domestic partners. 3
Claimants must prove an “intimate familial relationship” with the victim in order to
recover for loss of consortium. Dunphy. 4 “Persons engaged to be married and
living together may foreseeably fall into that category of relationship. “[G]iven the
widespread reality and acceptance of unmarried cohabitation, a reasonable person
would not find the “such a cohabitant’s] emotional trauma to be ‘remote and
unexpected.’” Id.
Of course, not everyone who is engaged to be married, living together, or assuming
the roles of husband and wife (common law or not) will be entitled to recover. The
claimant must prove a close familial relationship with the victim. . . . Courts should
presume that such a relationship exists if the couple fits into one of the above
categories, but a myriad of factors should be considered to determine whether the
relationship was significant enough to recover.
That standard must take into account the duration of the relationship, the degree of
mutual dependence, the extent of common contributions to a life together, the extent
and quality of shared experience, and . . . whether the plaintiff and the injured person
were members of the same household, their emotional reliance on each other, the
particulars of their day to day relationship, and the manner in which they related to
each other in attending to life’s mundane requirements. [Quoting Dunphy (internal
quotation marks and citation omitted).]
66 P.3d at 957. The Lozoya court responded to the defendant’s argument that the rule it was
announcing would be unadministrable by observing certain limits:
First, a person can only have an intimate familial relationship with one other person
3
New Mexico, interestingly enough, has also allowed grandparents to recover for the loss of the consortium of a
grandchild in certain cases. See Fernandez v. Walgreen Hastings Co., 968 P.2d 774 (N.M. 1998).
4
Dunphy v. Gregor, 642 A.2d 372 (N.J. 1994), sought to outline the universe of claimants in negligent infliction
of emotional distress cases.
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