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

Witt & Tani, TCPI 8. Duty Problem
at any one time. That is to say, if a person is married to a different person than the
victim of the tort, the claim will be barred. In the case of claims by unmarried
cohabitants, the relationship between the claimant and the victim must be
demonstrated to be committed and exclusive. . . . Second, the burden of proving
that an intimate familial relationship existed will be on the claimant, with a
presumption that this exists if the parties were engaged, married or met the general
test for common law marriage. The defendant should not have the burden of
“fighting off” multiple claims for loss of consortium.
66 P.3d at 958. In the Lozoya case, the Court concluded by reversing the trial judge’s entry of a
directed verdict for the defendant on the loss of consortium claim lodged by Sara Lozoya for
injuries to Ubaldo Lozoya. Sara and Ubaldo were not married at the time of the car accident that
gave rise to the lawsuit.
In the present case, we cannot deny that Ubaldo and Sara enjoyed a relationship that
was very similar, if not identical, to that of the typical married couple, or that a
reasonable jury could so find. They had lived together in a house that they owned
together for at least fifteen years. They had three children whom they raised
together. They carried the same last name, and they generally enjoyed spending
time with one another and participating in social events as a couple. Further, their
intent to be committed to one another indefinitely is evidenced by their marriage
shortly after the first accident, despite Ubaldo’s debilitating injuries.
Id. Several courts have specifically declined to adopt Lozoya. See Robinson v. Hartzell
Propeller, 276 F. Supp. 2d 412 (E.D. Pa. 2003); Milberger v. KBHL, LLC, 486 F. Supp. 1156,
1165 (D. Hawaii 2007); Conner v. Hodges, 333 P.3d 130 (Idaho 2014); Bailey v. Allderdice, No.
54618-0-I, 2005 Wash. App. LEXIS 2542 (Wash. Sept. 26, 2005).
What about same-sex couples? In August 2014, the Connecticut Supreme Court allowed
loss of consortium claims from “members of couples who were not married when the tortious
conduct occurred, but who would have been married if the marriage had not been barred by state
law.” Mueller v. Tepler, 95 A.3d 1011, 1023 (Conn. 2014). A federal district court in New Jersey
rejected a same sex partner’s loss of consortium claim where the claim arose out of injuries
suffered before enactment of the state’s civil union statute, which authorizes loss of consortium
claims between partners. Is it significant that the plaintiff and her same-sex partner did not enter
into a civil union once the New Jersey civil union statute was enacted, and still had not entered
into such a union at the time of the court’s decision? See Brigando v. Walt Disney World Co., No.
06-1191 (SRC), 2007 WL 3124702 (D.N.J. Oct. 23, 2007).
Do unmarried couples, including same sex couples, have a better argument for loss of
consortium, or a worse argument, after the legalization of same-sex marriage?
G. Tort Immunities
So far we’ve seen a number of domains carved out from the standard of reasonableness.
We’ve read that there is no general duty to rescue; that there are limited duties imposed on
landowners and occupiers; that the remedies for emotional distress injuries, pure economic loss
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