Loss of Consortium in South Carolina Wrongful Death Cases

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The sudden, unexpected loss of a family member is always a shock. When that family member is your spouse, however, the sense of loss is often overwhelming. A spouse is not just any family member. They were your partner in life. Spouses depend on one another for love, companionship, and support. So when that relationship is suddenly gone, the surviving spouse is left struggling to rebuild their life alone.

In situations where a spouse’s death was the result of a third party’s wrongful act, the surviving spouse can seek legal compensation for the loss of their spouse. Such damages are commonly referred to as loss of consortium. While no amount of money can ever repay someone for the loss of their life partner, it is, sadly, the best way that South Carolina’s legal system has to address such tragic scenarios.

How South Carolina Defines Damages for Loss of Consortium

Loss of consortium is a legal phrase that describes a person’s losses as a result of an injury done to their spouse, as opposed to themselves. In common law, South Carolina courts traditionally recognized a husband’s right to the loss of his wife’s “companionship, aid, society, and services.” Note that the wife had no similar right to claim damages for the loss of her husband’s consortium.

The South Carolina legislature changed that in 1969 when it adopted a new, statutory definition of loss of consortium, which is as follows:

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.

While most states recognize some form of loss of consortium damages, it is often treated as a derivative action. That is, the spouse’s right to compensation for their loss of consortium derives exclusively from the injured spouse’s personal injury claim. South Carolina’s statute, however, creates an independent cause of action for loss of consortium. Our courts have said that loss of consortium claims arise from the “special relationship between a husband and wife.” So when a third party “interferes” with that right, the spouse has a separate right to seek compensation.

Elements of Loss of Consortium

There are a few basic elements a surviving spouse must prove in court when seeking damages for loss of consortium:

  • They were married to the victim.
  • The victim died due to an intentional or wrongful act committed by the defendant.
  • The surviving spouse can prove they suffered damages due to the loss of their spouse’s consortium.
  • The defendant’s actions were the proximate cause of that loss of consortium.

But how exactly can a judge or jury determine loss of consortium damages? It is not as if you can “appraise” the value of the marriage as you would a house or a piece of artwork. Instead, it is up to the bereaved spouse to demonstrate the benefits or services their spouse provided prior to their death. Some common examples include:

  • loss of the spouse’s financial support;
  • loss of the spouse’s care;
  • loss of the spouse’s provision of household services;
  • loss of the spouse’s society (i.e., intimate relations);
  • loss of the spouse’s counsel and advice; and
  • loss of the spouse’s comfort and emotional support.

Obviously, there is no formula for any of these elements. In the end, the court must assess the quality of the overall relationship and the impact of the spouse’s loss on the survivor.

Can Other Family Members Seek Compensation for Loss of Consortium in South Carolina?

In personal injury cases, South Carolina law limits loss of consortium claims to the spouses of the victims. This means that unmarried partners do not have legal standing to seek such damages. This includes someone who was engaged to be married to a victim who died prior to the wedding.

South Carolina also does not recognize claims for what is known as “loss of filial consortium,” or damages to the relationship between a parent and child. In a 2007 decision, Doe v. Greenville County School District, the South Carolina Supreme Court rejected a claim for such compensation by the parents of a teenager who was sexually abused by her teacher. The Court emphasized that loss of consortium was limited to the spousal relationship, and it was up to the legislature–not the judiciary–to extend such damages to other family relationships if it wished.

That said, in a South Carolina wrongful death case, other family members including the victim’s children, parents, or other legal heirs are entitled to share in any recovery. In these cases, a judge or jury can take into account the grief, pain, suffering, and loss of companionship by all surviving family members who are entitled to recover and not just the surviving spouse.

Can a South Carolina Court Award Damages for Wrongful Death But Not Loss of Consortium?

Since loss of consortium is considered an independent cause of action under South Carolina law, there are cases where a jury has ruled in favor of a wrongful death claim but awarded no compensation for the surviving spouse’s loss of consortium. For example, in a 2002 case, Burroughs v. Worsham, the South Carolina Court of Appeals upheld a jury verdict that awarded the victim’s estate $3.5 million in the underlying wrongful death action while simultaneously ruling for the defense on the surviving widow’s loss of consortium claim. The Court of Appeals found no legal inconsistency in the jury’s decision.

Contact a Charleston Wrongful Death Attorney Today

Compensation for loss of consortium is often a complicated and sensitive topic. If you have recently lost your spouse, the last thing you want to do is think about the “value” of your marriage. This is where an experienced Charleston wrongful death attorney can help guide you through the legal process. Contact attorney Trey Harrell today to schedule a free consultation. Remember Trey Helps!

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