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"Loss of
Consortium" and Emotional Distress Claims in Sling Fall Case
By
Gerard Panaro, Howe
& Hutton, WSTDA Legal Counsel
The California Court of Appeal, 2d
District, in a May decision, affirmed an award of over half a million
dollars to a woman who fell out of a sling on a lift system used to get
her from the bed to the bathroom and affirmed the trial court’s decision
that her husband suffered no emotional distress, but reversed the trial
court’s finding that the husband suffered no loss of consortium. The
appeals court said “the evidence compels the conclusion that [the
husband] suffered a compensable loss of consortium” and sent the case
back for a trial on the amount of damages only, liability having been
established. The case is Mealy v. B-Mobile, Inc., 124 Cal.Rptr.3d
804 (2011).
Facts of the case. The lift system that the wife used
included a sling with straps to support her, an electric motor to lift
and lower her, and a track mounted overhead to transport her from the
bedroom to the bathroom. Her husband transferred his wife in and out of
bed and from the bedroom to the bathroom using the lift system. After
being transferred from the bed in the morning, she typically would sit
in her wheelchair for three to five hours at a time, resting in bed for
an hour at noon and again late in the afternoon. She was able to do
household chores such as mop and sweep the floor, clean house, cook, and
garden. She also participated in leisure activities away from home such
as eating lunch with friends, visiting family out of town, and going to
parks and art galleries. Apart from having to be transferred into and
out of bed, she was very independent.
In August 2008, part of the sling gave way as her husband was preparing
to lower his wife onto the commode, causing her to fall to the floor.
She lay on the floor for approximately 10 to 12 minutes until the
paramedics arrived. She spent three days in the hospital followed by
three weeks at a rehabilitation center. She suffered a hip fracture in
the fall. Her extended bed rest resulted in atrophy of her trunk
muscles.
After the fall, the wife required assistance in almost every aspect of
her daily living. She was unable to groom herself as she did before the
fall. She was able to sit in her wheelchair for only two hours at a
time, after which she required bed rest to relieve the pain. She became
incontinent, which she was not before the fall. She was unable to do
household chores or participate in leisure activities as before. Her
husband became her full-time caretaker.
Claims in the complaint. The plaintiffs sued. The wife
alleged negligence, products liability and breach of warranty; the
husband sued for loss of consortium and negligent infliction of
emotional distress. The trial was to a judge; there was no jury. As
noted, the trial court awarded the wife a little over $555,000 in
damages, but no relief to the husband.
“Consortium” means more than sex. In overruling the trial
court and holding that the husband in this case suffered loss of
consortium, the court of appeal began by “defining” what “consortium”
means: “ ‘Consortium’ refers to the noneconomic aspects of the marriage
relation, including conjugal society, comfort, affection, and
companionship. Consortium also encompasses sexual relations, moral
support, and household services. A person who suffers a loss of
consortium as the result of a negligent or intentional injury to his or
her spouse is entitled to recover damages from the tortfeasor.” (cits.
and some internal quotation marks omitted.)
The court elaborated on this meaning of consortium by quoting from
another decision of the California Supreme Court which is perhaps worth
citing here:
Nor is the wife's personal loss
limited to her sexual rights. As we recognized in Deshotel [ v.
Atchison, T. & S.F. Ry. Co. (1958) 50 Cal.2d 664, 665, 328 P.2d
449], consortium includes ‘conjugal society, comfort, affection, and
companionship.’ An important aspect of consortium is thus the moral
support each spouse gives the other through the triumph and despair
of life. A severely disabled husband may well need all the emotional
strength he has just to survive the shock of his injury, make the
agonizing adjustment to his new and drastically restricted world,
and preserve his mental health through the long years of frustration
ahead. He will often turn inwards, demanding more solace for himself
than he can give to others. Accordingly, the spouse of such a man
cannot expect him to share the same concern for her problems that
she experienced before his accident. As several of the cases have
put it, she is transformed from a happy wife into a lonely nurse.
Yet she is entitled to enjoy the companionship and moral support
that marriage provides no less than its sexual side, and in both
cases no less than her husband. If she is deprived of either by
reason of a negligent injury to her husband, the loss is hers alone.
(Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382 (1974)).
A partial loss or diminution of consortium
is compensable, the court held. That was certainly the case here, the
court concluded, based on the facts presented at trial:
Adelaide Mealy [the plaintiff/wife]
suffered a debilitating injury that impaired her mobility and
limited her independence. Although her mobility and independence
were limited before the incident, her condition deteriorated
considerably as a result of the incident to the extent that, at the
time of trial, she required 24–hour care, most of which is provided
by her husband. A woman in her condition necessarily cannot provide
the same conjugal society, comfort and moral support that she once
could.
New trial on damages alone.
Accordingly, the court “conclude[d] that the evidence compels the
conclusion that Donald Mealy [plaintiff/husband] suffered a compensable
loss of consortium and that the trial court's finding to the contrary is
not supported by substantial evidence.” The court of appeal therefore
ordered a new trial for the husband, limited to determining the amount
of damages for loss of consortium.
Husband cannot recover for emotional distress. The court
of appeal did, however, affirm the trial court’s ruling that the husband
did not suffer any emotional distress at seeing his wife fall from the
sling. (The husband claimed that he had “suffered shock, anxiety, and
fear, contemporaneous with and as a direct result of personally
observing the product failure and [his wife’s] resulting injuries.”
The “bystander” rule. A defendant has a duty to avoid
causing emotional distress to a limited class of persons who observe
conduct that causes harm to others. This is known as the “bystander”
theory of recovery. Because the class of potential plaintiffs in such
cases could be limitless, resulting in liability out of proportion to
the defendant's culpability, the class of plaintiffs to whom a defendant
owes a duty is limited. A plaintiff may recover damages for emotional
distress caused by observing an injury negligently inflicted on another
person “only if the plaintiff: (1) is closely related to the injury
victim, (2) is present at the scene of the injury-producing event at the
time it occurs and is then aware that it is causing injury to the victim
and, (3) as a result suffers emotional distress beyond that which would
be anticipated in a disinterested witness. The third element is the most
important: it requires serious emotional distress—a reaction beyond that
which would be anticipated in a disinterested witness and which is not
an abnormal response to the circumstances.
Husband not entitled to recover under bystander rule.
Applying this legal standard and test to the facts of the case before
it, in what may seem an overly analytical and artificial way, the court
of appeal agreed with the trial court that the husband had not proved
emotional distress because the distress he experienced at seeing his
wife fall out of her lift was just “ordinary” distress and not “beyond”
the distress a “disinterested witness” would experience. In the trial
court’s own words, quoted by the court of appeal:
All the evidence cited by plaintiff
relates to the emotional distress stemming from the after-effects of
the injury. Not one word was placed in evidence as to the existence
of any damage from witnessing the event. All Mr. Mealy testified to
was that he saw the fall, that he was concerned that his wife would
suffocate in the wastebasket, that he turned her head to avoid that
possibility, that he helped reposition her, and that he called 911.
That is not, as the law requires before he may collect any damages
at all, ‘a reaction beyond that which would be anticipated in a
disinterested witness.’ [Cit.om.] Not one iota of evidence was
offered as to an emotional response to witnessing the event; e.g.,
any nightmares or ‘visions' of the event, any health care of any
kind or character being required as a result of witnessing the
event, etc.
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