Loss of Consortium In New Mexico
To bring a tenable loss of consortium claim, a plaintiff must show: 1) a sufficiently close relationship with the injured party and, 2) plaintiff’s distress was foreseeable. Wachocki v. Bernalillo County Sheriff's Dep't, 2011-NMSC-039, ¶5.
Several factors are relevant in determining whether a sufficiently close relationship existed to bring a loss of consortium claim. These factors include the relationship’s duration, mutual dependence, extent/quality of shared experience, emotional reliance, and “the manner in which they related to each other in attending to life’s mundane requirements.” Wachocki, 2011-NMSC-039, ¶5. Where “parties relied on the relationship and could not enjoy life in the same way once the relationship is severed… the claimant and injured party are mutually dependent, and therefore the relationship was sufficiently close to permit recovery for loss of consortium.” Id ¶10.
Mutual dependence does not require a showing of a shared household or financial interdependence. In DeAnda v. New Pathways, Inc., 2013 N.M. App. Unpub. LEXIS 287 (non-precedential), decedent died in his sleep while residing at Defendant’s facility. Decedent was 25 years old, and required day-to-day assistance. The Court affirmed a jury verdict for plaintiff parents on their loss of consortium claim, finding the fact decedent and his parents did not share a household or economic/caretaking dependence was not determinative. Id ¶¶17-18.
The reason emotional, rather than financial, dependence is the critical test is because a loss of consortium plaintiff seeks damage to a relational interest. In Wachocki, 2011-NMSC-039, plaintiff was decedent’s brother with whom he shared an apartment for eight months. The Court noted the crucial inquiry is whether the “parties relied on the relationship and could not enjoy life in the same way once the relationship is severed…” Id ¶10. When such a showing is made, “the claimant and injured party are mutually dependent, and therefore the relationship was sufficiently close to permit recovery for loss of consortium.” Id ¶10. While the Court found the brothers in Wachocki did not have sufficient mutual dependence, the Court recognized recovery for loss of consortium may extend to siblings. Id ¶12.
Likewise, in Fitzjerrell v. City of Gallup, 2003-NMCA-125, plaintiff parents and siblings of a twenty-five year old decedent brought a claim for loss of consortium. The Court of Appeals reversed dismissal, finding “the determination of who can recover for loss of consortium should be based on facts establishing the quality of a relationship, not on a legal definition establishing or rejecting one.’” Id ¶2. The Court also recognized the mutual dependence requirement may be satisfied by a showing of emotional interdependence, as “[t]he elements consisting of the qualities of the relationship that give rise to the claim are flexible in scope.” Id ¶¶12-13.
The second element, foreseeability, flows from the first. An injury is foreseeable when there should be “nothing surprising about [the] relationship involving companionship, support, society, comfort, aid, and protection.” Fitzjerrell, 2003-NMCA-125, ¶10. When the relationship between plaintiff and the injured party is sufficiently close, emotional distress is foreseeable by, among others, parents, siblings, and grandparents of injured parties. Fitzjerrell, 2003-NMCA-125 (parents and siblings of adult); Fernandez, 1998-NMSC-039 (grandmother).
As shown above, to show a proper loss of consortium claim, a plaintiff must show a sufficiently close relationship with the injured party, and that plaintiff’s distress was foreseeable.
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