AuthorSchaus, Steven

Table of Contents Introduction I. Consortium Claims II. The Palsgraf Puzzle III. Why Not Rights? IV. If Not Rights, What? V. Wrongs to Us VI. Consortium Claims Explained? VII. Extensions and Implications Conclusion Introduction

We sometimes talk as though tort suits involve just two parties, but the truth is that the caption of a tort suit can get crowded. In addition to the injured party and the alleged injurer, for instance, there's often a spouse in the mix. In fact, a huge number of tort cases in the United States work their way toward judgment as Plaintiff & Spouse v. Defendant. (1) Why? The answer is at once completely obvious and deeply puzzling. The spouse is there because, in just about every state, she has a tort claim against the defendant too--not for battery or negligence, as her spouse might, but for "loss of consortium." (2) And yet, it's not clear why that should be, because it's not clear that spousal consortium claims make any doctrinal or normative sense.

To see the puzzle, consider what Judge Cardozo had to say about the nature of a tort claim in Palsgraf v. Long Island Railroad Co. (3) A plaintiff who brings a claim in tort, Cardozo explained, must always show "'a wrong' to herself; i.e., a violation of her own right, and not merely a wrong to someone else, nor conduct 'wrongful' because unsocial." (4) This is sometimes called the "Palsgraf principle," and it is central to the view that tort is a law of wrongs-the view, in short, that tort law aims to redress the rights infringements that plaintiffs suffer at the hands of defendants, not simply to compensate plaintiffs for the losses that wrong-acting defendants cause them. This view of tort law is not an eccentric one either, it should be said, even if it is not the economist's view of the institution. Indeed, it's black-letter law in most jurisdictions, and a well-known position in tort theory too.

If we treat the Palsgraf principle as fixed, though, then consortium claims seem more than a little strange. The principle tells us that a plaintiff who brings a consortium claim must identify "a violation of her own right." But which right, exactly? It would be odd to say that she had a right over the way that the defendant related to her spouse, no? At one time, tort law wasn't troubled by thoughts of this kind. Indeed, the traditional view of consortium claims, conceived in the context of coverture, took for granted that a husband had a property right in his wife (but not the other way around), akin to the right he had in his servants. (5) By this patriarchal logic, a wrong to a married woman was a wrong to her husband too--a violation of his own right. As a result, a husband's consortium claim was once a straightforward instance of the Palsgraf principle, rather than a seeming departure from it.

Today, courts reject the traditional view, and rightly so. Despite that, courts here in the United States haven't given up on consortium claims, even as courts and legislatures in other countries have. (6) If anything, courts here have set out in the other direction--extending consortium claims to married women, to parents, to children, and sometimes still others. How should we understand these developments in U.S. tort law? Have courts simply cut themselves loose from the Palsgraf principle, at least in this pocket of tort doctrine? That's not what courts tend to say about their own decisions, for what it's worth. By and large, courts continue to say that spousal consortium claims rest on rights--except now, they're apt to say that the claims rest on the right of each spouse in (something like) the "marital relationship," rather than the right of each spouse in the other. (7) Now, I suspect that courts are onto something with this thought, and one of my goals in this Article is to say what that might be. But you'd be forgiven for thinking that this apparent shift in doctrine--from rights in people to rights in the relations between them--is an artful evasion of the tort's problematic past rather than a credible answer to the key question: Which right, exactly?

Tort theorists, for their part, seem to doubt that courts have a good answer to give. Proponents of rights-based accounts of tort law argue that consortium claims are every bit as strange as they seem. They are irredeemable relics of a patriarchal past, or else they are claims of a different vintage that have been left in place to promote policy ends of some other kind. Either way, these theorists say, consortium claims have no proper place in a law of private wrongs today. (8) Opponents of rights-based accounts, by contrast, can cite consortium claims as evidence that tort law isn't all about rights today, if it ever was. If tort law (also) aims to induce an efficient level of precaution or to provide a fair measure of compensation, for instance, then consortium claims may have a natural part to play. (9) The "puzzle" of consortium claims, from this perspective, is simply the product of a wrongheaded focus on rights.

In my view, however, both of these responses miss the mark, because both credit the conclusion that consortium claims can't be understood to rest on rights. And I think that's a mistake. Tort theorists have been right to worry that consortium claims are different from other tort claims. But I think they have been wrong about what this difference comes to, and about what it means for the prospect of treating torts as wrongs--both in practice and in theory. In this Article, I'll suggest that consortium claims have a natural enough place in a rights-based picture of tort law, so long as we have the right picture of rights (and rightsholders) in view. I will offer a more detailed roadmap of the argument in a moment. To give you a glimpse of where we're headed, though, let me tell you about Alan and Kathleen Lundgren.

In the summer of 1976, Alan Lundgren was in a frightening accident when his brakes failed on a highway exit ramp. Alan survived, but damage to his spinal cord left him with recurring back pain and difficulty moving one foot. As a result, Alan struggled to meet the physical demands of the small business he co-owned, and he was forced to give up many of the physical activities he loved. Alan sued Whitney's, a local auto repair shop, for negligence. Kathleen Lundgren, his wife of a decade at that point, added a claim for loss of consortium. (10) At trial's end, a jury had no trouble finding Whitney's liable to both Alan and Kathleen--to him for his personal injuries, and to her for the loss of Alan's "society and services." (11) Now, as tort cases go, Lundgren & Lundgren v. Whitney's, Inc., is not particularly remarkable. (12) In part for that reason, though, I think that Kathleen's view of what Whitney's carelessness cost her might help us see what consortium cases are all about.

At trial, Kathleen's testimony focused on the many ways that Alan's injuries had "altered" their "social life" and "limited the[ir] activities." (13) She mentioned dancing, bowling, weekend boat trips with their two children, and walks on the beach as some of the losses she found difficult to bear. (14) How should we understand Kathleen's point here? To state the obvious, her point wasn't that, in the wake of Alan's accident, she couldn't take walks on the beach anymore. Rather, her point was presumably that, because he can't take walks anymore, we can't take walks anymore--and that taking walks together was something that mattered. (15) Of course, taking walks wasn't the only thing that Alan and Kathleen did together. It seems they danced together, ran a home together, cared for their children together, and more, just like countless other couples. After Alan's accident, they couldn't manage some of these things at all, and they could manage others only with added difficulty or expense. Alan survived the accident, fortunately, so he and Kathleen had the opportunity to reimagine and remake their life together. But the life they had already imagined and made for themselves was altered forever by Whitney's carelessness.

I think the point implicit in Kathleen's testimony--that Whitney's carelessness derailed the life she shared with Alan, whatever else it did--is an important one. In fact, I will suggest that taking this point seriously is the key to a better rights-based understanding of consortium claims. In the end, I hope to be able to tell a story in which Kathleen joined Alan's lawsuit against Whitney's to redress a wrong to the "us" they constituted, and to hold Whitney's to account for the harm she suffered as one of that us. To get there, though, I'll first need to make it plausible that partners in marriage-like relationships, by acting together in intensive, long-term ways, constitute a genuine "we," and that this kind of collective agency puts partners in marriage-like relationships in a position to have joint aims and interests--and to hold joint rights to protect those shared aims and interests. The hypothesis I'll explore, then, is that partners in marriage-like relationships often have jointly held rights of this kind, and that tort law can be understood to give legal effect to these rights by recognizing claims for loss of consortium.

Seeing consortium claims this way will enable us to make better sense of their doctrinal logic, I'll suggest, and it will put us in a position to understand their continuing appeal too, even to avowed egalitarians. To maintain that partners in marriage-like relationships constitute a "we" in a real and morally significant sense is not to re-indulge the fiction of marital unity or re-embrace the autonomy-obliterating gender norms that came with it. On the contrary, I believe the sort of "we-ness" that I'll appeal to is a feature of even egalitarian, autonomy-preserving ideals of long-term romantic partnership. At the same time, seeing consortium claims as vehicles for redressing wrongs that a "we" suffers will give us a new vantage from...

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