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58 S. Cal. L. Rev. 1467 (1985)
Loss of Consortium: Should California Protect Cohabitants Relational Interest

handle is hein.journals/scal58 and id is 1487 raw text is: Loss of Consortium: Should California Protect Cohabitants' Relational Interest? Should actions for loss of consortium be available only to married couples? California courts are divided on this question.1 The essential disagreement is whether the action for loss of consortium is intended to protect the institution of marriage, or whether it is intended to protect the relationship embodied in the marriage. Historically, the common law action for loss of consortium protected a husband's property interest in his wife. This view, however, has been discredited for many years. California now permits a loss of consortium action when one of the par- ties in a marital relationship is negligently injured and the other party suffers a loss of society, affection, and companionship. This Note will argue that the loss which a consortium action is intended to remedy is the damage to the relationship embodied in the marriage and not simply to the marriage itself. Marital relationships serve vital psychological, emotional, and sup- portive functions. They are important for society as well as for the par- ties involved. Society thus protects the relationship by allowing actions for loss of consortium. If consortium actions protect the relational inter- est of the parties, as opposed to the marital interest, then, logically, the cause of action ought to be extended and made available to all those relationships which, like the marital relationship, comprise this vital rela- tional interest. Although there are arguably many such relationships,' 1. Compare Elden v. Sheldon, 164 Cal. App. 3d 745, 210 Cal. Rptr. 755 (1985) (cohabitants may not sue for loss of consortium) with Butcher v. Superior Court, 139 Cal. App. 3d 58, 188 Cal. Rptr. 503 (1983) (cohabitants may state a cause of action for loss of consortium); see also infra notes 80-85 and accompanying text. 2. Five states now allow children to sue for loss of parental consortium. See Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981); Ferriter v. Daniel O'Connell's Sons, 381 Mass. 507, 413 N.E.2d 690 (1980); Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (1981); Ueland v. Reynolds Metals Co., 103 Wash. 2d 131, 691 P.2d 190 (1984); Theama v. Kenosha, 117 Wis. 2d 508, 344 N.W.2d 513 (1984). Commentators have also argued for an extension of the action to cover children, see, e.g., Note, The Child's Cause of Action For Loss of Consortium, 5 SAN FERN. V.L. REV. 449 (1977), and to cover engaged couples who subsequently marry, see, e.g., Comment, Loss of Consortium and En- gaged Couples: The Frustrating Fate of Faithful Fiancees, 44 OHIo ST. LJ. 219 (1983); see also infra note 123 and accompanying text. 1467

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