Chapter 7 - § 7.8 • LOSS OF CONSORTIUM CLAIMS AND PARENT CLAIMS

• Jurisdiction: Colorado

§ 7.8 • LOSS OF CONSORTIUM CLAIMS AND PARENT CLAIMS

Beyond the statutory derivative claims — wrongful death and survival actions, discussed in § 7.7, there are two other cognizable derivative claims in Colorado. First, spouses can bring loss of consortium claims. Second, parents can bring derivative claims for economic damages only.

§ 7.8.1—Loss Of Consortium Claims By A Spouse

Loss of consortium by a spouse is a recognized claim in Colorado.⁹¹ Consortium is defined as "the benefits that one person . . . is entitled to receive from another, including companionship, cooperation, affection, aid and (between spouses) sexual relations."⁹² Loss of parental companionship is not a recognized claim in Colorado.⁹³ Similarly, loss of a child's companionship is also not a recognized claim in Colorado,⁹⁴ though a derivative claim for economic losses of a child is recognized.⁹⁵

A loss of consortium claim is a distinct cause of action, giving rise to a separate and individual right to recover damages.⁹⁶ It is, however, a derivative claim.⁹⁷ As a derivative claim, a loss of consortium claim depends "entirely upon the right of the injured person to recover."⁹⁸ Thus, if the underlying claim by the injured party fails, the loss of consortium claim must fail as well.⁹⁹

The historic rationale for a loss of consortium claim is that a person "who has lost the society, companionship and services of his wife and has expended money in an attempt to minimize or prevent such loss, has himself sustained a personal injury."¹⁰⁰ The state legislature, over 50 years ago, extended loss of consortium rights to married women as well.¹⁰¹ Damages available for a loss of consortium claim include loss of affection, society, services, companionship, aid, and comfort, as well as economic damages for loss of household services from an injured spouse.¹⁰²

Loss of consortium claims are subject to the same defenses available to the underlying claim.¹⁰³ Thus, for example, the comparative negligence of the injured plaintiff reduces the recovery permitted for the consortium claim.¹⁰⁴ There is a Colorado Pattern Jury Instruction on the elements of a loss of consortium claim, but it is written to address negligence rather than product liability claims.¹⁰⁵

§ 7.8.2—Parents' Derivative Claims For Children's Losses

Under Colorado law, parents can maintain a derivative action for certain types of damages they incur as an injury to their child.¹⁰⁶ Such claims, like loss of consortium claims brought by...