A. Definition

• Library: Elements of Civil Causes of Action (SCBar) (2021 Ed.)

A. Definition

In South Carolina, unlike most other states, loss of consortium is an independent, not a derivative, claim.² It is a common law action.³ As defined by one federal court it is:

... a right which law recognizes in a husband arising from the marital union to have performance by wife of all those duties and obligations in respect of him which she undertook when she entered into the marriage relation, including right to conjugal fellowship of the wife, her company, cooperation and aid in every conjugal relation, fellowship and assistance of wife, and comfort in her society as to which right of husband is peculiar and exclusive.⁴

A wife, under the common law, did not have a cause of action for the loss of her injured husband's consortium.⁵ That has been changed by a statute that reads:

Any person may maintain an action for damages arising from an intentional or tortious violation of the right to the companionship, aid, society and services of his or her spouse. Provided, that such action shall not include any damages recovered prior thereto by the injured spouse.⁶

The purpose of the statute was to extend to wives the right to recover for the loss of the consortium of their husbands.⁷

Because a claim for a loss of consortium is an independent action, judgment for the defendant in one action is not a bar to the consortium action.⁸ However, where an injured spouse brings an action and his or her spouse claims loss of consortium on the same grounds and the cases are consolidated,⁹ if the jury finds the injured spouse is not entitled to recover, the consortium claim fails as well.¹⁰

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Notes:

^[2] Barnette v. Adams Bros. Logging, Inc., 355 S.C. 588, 586 S.E.2d 572 (S.C. 2003); Preer v. Mims, 323 S.C. 516, 476 S.E.2d 472 (S.C. 1996). See also Burroughs v. Worsham, 352 S.C. 382, 574 S.E.2d 215 (Ct. App. 2002).

^[3] Brown v. Finger, 240 S.C. 102, 124 S.E.2d 781 (S.C. 1962) (cause of action of husband for loss of consortium is based on common law right to...