Bulloch v. United States
Decision Date | 27 March 1980 |
Docket Number | Civ. No. 78-1305. |
Parties | David K. BULLOCH and Edith F. Bulloch, Plaintiffs, v. The UNITED STATES of America; Department of Health, Education and Welfare; Public Health Service; Frank Caprio, M.D.; The Department of Transportation; United States Coast Guard and Eugene Eichman, M.D., Defendants. |
Court | U.S. District Court — District of New Jersey |
Shapiro, Eisenstat, Capizola, O'Neill & Gabage by Gerald M. Eisenstat, Vineland, N. J., for plaintiffs.
Robert J. Del Tufo, U. S. Atty. by G. Donald Haneke, Asst. U. S. Atty., Newark, N. J., for U. S. of America.
Parker, McCay & Criscuolo by Mark M. Bridge, Mount Holly, N. J., for defendant Eugene Eichman, M. D.
This is a case arising from a scuba diving accident off the coast of Cape May, New Jersey, in which the plaintiff, David K. Bulloch, was injured. A complaint and libel in admiralty was filed, alleging several counts. This Court has jurisdiction under both the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680, and the Suits in Admiralty Act, 46 U.S.C. §§ 741 et seq., 742. The United States has moved pursuant to Federal Rule of Civil Procedure 12(b)(6) for dismissal of the Fifth Count of the complaint. This count seeks damages pursuant to the Federal Tort Claims Act for Edith F. Bulloch's loss of consortium. Because both the United States and the Bullochs have presented matters outside of the pleadings to the Court, this motion has been treated as one for summary judgment under Federal Rule of Civil Procedure 56, in accordance with Rule 12(b).
The government's argument is a simple one: Edith F. Bulloch is not David K. Bulloch's wife, therefore she is not entitled to compensation for any loss of consortium. The plaintiffs admit that they are not legally married, but respond that a legal marriage is not a required element of proof in a consortium claim. I have concluded that the plaintiffs are correct and that in New Jersey proof of a legal marriage is not an essential element of a consortium claim.
The legal question presented is a novel one. Both parties agree that New Jersey law governs this count of the complaint, but neither the parties' nor my own research has discovered a New Jersey case addressing the question. Nor has extensive research discovered a case in any other jurisdiction that considers whether a legal marriage is a prerequisite to an action for loss of consortium. The only cases discovered were a few that assumed, without discussion, that a marriage is necessary and went on to consider whether the plaintiffs had a legally recognized common law marriage. See Domany v. Otis Elevator Co., 369 F.2d 604 (6th Cir. 1966); Cooper v. Lish, 318 F.2d 262 (D.C.Cir.1963); De Vito v. Hoffman, 199 F.2d 468 (D.C.Cir.1952). None of these cases cited any authority for this assumption, although it seems to have been an assumption that was shared by the plaintiffs as well. This case, then, appears to be the first wherein a plaintiff has argued that a legal marriage need not be shown to prevail on a consortium claim.
This case is not, however, the first to present arguments questioning common law views of unmarried couples. Recent years have seen a nationwide flurry of cases that have challenged the traditional common law conception of extra-marital relations. See, e. g. Kremer v. Black, 201 Neb. 467, 268 N.W.2d 582 (Sup.Ct.1978) ( ); Stanard v. Bolin, 88 Wash.2d 614, 565 P.2d 94 (Sup.Ct.1977) ( ); Marvin v. Marvin, 18 Cal.3d 660, 134 Cal. Rptr. 815, 557 P.2d 106 (1976) ( ); Slawek v. Stroh, 62 Wis.2d 295, 215 N.W.2d 9 (Sup. Ct.1974) ( ). The amount of scholarly commentary has risen to the point that The Index to Legal Periodicals (H.W. Wilson) has recently added a new category, "Unmarried Couples," to its listing. As might be expected, the New Jersey courts have been among those dealing with the various questions that have arisen from these relationships. See, e. g. Kozlowski v. Kozlowski, 80 N.J. 378, 403 A.2d 902 (1979) ( ); State v. Saunders, 75 N.J. 200, 381 A.2d 333 (1977) ( ); Parkinson v. J. & S. Tool Co., 64 N.J. 159, 313 A.2d 609 (1974) ( ). Similarly, the common law conception of the marital relationship has not been immune to reexamination. See, e. g., Trammel v. United States, ___ U.S. ___, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980), (common law privilege precluding one spouse from testifying against the other in a criminal trial modified). In this area, as well, the New Jersey courts have actively participated. See, e. g., Immer v. Risko, 56 N.J. 482, 267 A.2d 481 (1970) ( ); State v. Smith, 169 N.J.Super. 98, 404 A.2d 331 (App.Div.1979) aff'g 148 N.J. Super. 219, 372 A.2d 386 (Cty.Ct.1977), awaiting argument N.J. Supreme Court, (common law rule that man may not be convicted for the rape of his wife sustained retrospectively, prospective rule declared moot since new rape statute, N.J.S.A. 2C:14-5(b) clearly permits conviction of spouse for rape). (The Smith case is discussed in detail in Comment, The Common Law Does Not Support a Marital Exception for Forcible Rape, 5 Women's Rights L.Rep. 181 (1979)).
It is not surprising that many courts have been forced to consider questions in this general area. Census data and sociological studies confirm the notion felt by many that marriage is not the sacrosanct institution that it once was and that extra-marital relations are not the anathema they once were. See, e. g. Bureau of the Census, United States Department of Commerce, Marital Status and Living Arrangements: March 1979, (Current Population Reports, Population Characteristics, Series P-20, No. 349) (1980), (2.7 million people in the United States are partners in a cohabitation situation); Clayton & Voss, Shacking Up: Cohabitation in the 1970's, 39 Journal of Marriage and the Family 273 (1977); cf. Kazin v. Kazin, 81 N.J. 85, 94, 405 A.2d 360, 365 (1979) ()
It is against this background of law and social mores in flux that this case must be considered; but it must be decided in accordance with the applicable principles of law. Although this is a case of first impression, I must begin where all law begins, with an examination of the facts.
Edith F. Bulloch filed an affidavit in response to the government's motion which I must accept as the facts of this case for the purpose of this motion. Fed.R.Civ.Pro. 12 & 56. As the Third Circuit stated in Janek v. Celebrezze, 336 F.2d 828 (3d Cir. 1964), ". . . the court must take that view of the evidence most favorable to the party against whom the motion is directed, giving to that party the benefit of all favorable inferences that might reasonably be drawn from the evidence." Id. at 834. See Sanford v. O'Neill, 615 F.2d 92 at 96 (3d Cir. 1980); Drexel v. Union Prescription Centers, Inc., 582 F.2d 781, 790 (3d Cir. 1978); Braden v. University of Pittsburgh, 552 F.2d 948, 966-67 (3d Cir. 1977) (en banc) (Garth, J., concurring). Here, then, is Edith F. Bulloch's description of her relationship with David K. Bulloch:
Affidavit of Edith F. Bulloch, dated March 3, 1980.
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