Childers v. Shannon

• Decision Date: 05 March 1982
• Citation: 444 A.2d 1141,183 N.J.Super. 591
• Parties: Ruth Nance CHILDERS and Michael Childers, her husband, Plaintiffs, v. James J. SHANNON, Sue M. Parent and Parent's Flower & Gift Shop, etc., Defendants.
• Court: New Jersey Superior Court

Page 591

183 N.J.Super. 591

444 A.2d 1141

Ruth Nance CHILDERS and Michael Childers, her husband, Plaintiffs, v. James J. SHANNON, Sue M. Parent and Parent's Flower & Gift

Shop, etc., Defendants.

Superior Court of New Jersey, Law Division,

Cumberland County.

Decided March 5, 1982.

J. Peter Davidow, Millville, for defendants (Davidow & Davidow, Millville, attorneys).

Nicholas G. Radano, Vineland, for plaintiffs (Kavesh, Basile, Radano & Healey, Vineland, attorneys).

MILLER, EDWARD S., J. S. C.

Defendants have moved for an order dismissing the second count of the complaint which demands damages for loss of consortium, on the ground that plaintiffs were not married at the time of the accident. The facts are not in dispute: Plaintiff Ruth Nance Childers seeks recovery for injuries she suffered in an auto accident which took place on June 2, 1978, about two months prior to her wedding to plaintiff Michael Childers. Plaintiffs argue in response to defendants' motion that the claim for loss of consortium is valid, at least from the date of their wedding if not from the date of the accident. Plaintiffs' argument, however, fails to justify overruling the law of this State.

Traditional notions of the relations between unmarried partners and of the relations between the partnership and society are currently being tested in the courts. Although many individuals have rejected marriage to avoid its burdens, some courts do not hesitate to impose upon some unmarried partners duties tantamount to marital obligations, Kozlowski v. Kozlowski, 80 N.J. 378, 403 A.2d 902 (1979); but see Crowe v. DeGioia, 179 N.J.Super. 36, 430 A.2d 251 (App.Div.1981); Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106 (Sup.1976), rev'd 122 Cal.App.3d 871, 176 Cal.Rptr. 555 (D.Ct.App.1981). It is therefore not surprising that unmarried partners, whether engaged to marry or cohabitant or both, regardless of sexual differentiation, have sought the legal benefits of marriage as well. The legal distinctions between married and unmarried couples have therefore become increasingly blurred. However, to overturn settled law and allow an unmarried partner to recover for loss of consortium would indicate that our society now virtually equates fiances and unmarried cohabitants with married couples. The distinctions between them are not yet quite so blurred.

The question whether a husband may recover damages for loss of consortium as a result of premarital injuries to his wife was answered in the negative 74 years ago in Mead v. Baum, 76 N.J.L. 337, 69 A. 962 (Sup.1908). Defendants correctly argue that marriage at the time of injury has traditionally been a prerequisite of a claim for loss of consortium. Plaintiffs argue that the requirements of the claim have changed and point to federal decisions in which a cohabitant was allowed to maintain a claim for loss of consortium, Bulloch v. United States, 487 F.Supp. 1078 (D.C.N.J.1980), and in which a husband actually recovered damages for loss of consortium resulting from premarital injuries to his wife, Sutherland v. Auch Inter-Borough Transit Company, 366 F.Supp. 127 (D.C.Pa.1973).

In Auch the husband's recovery was based on the nearness in time of the accident to the wedding, 366 F.Supp. at 134. No rationale is offered to support the departure from the traditional elements of a loss of consortium claim.

In his decision in Bulloch Judge Ackerman stated that, in allowing plaintiff to maintain her consortium claim, the federal court attempted to predict a change in New Jersey law:

... a federal court must be sensitive to the doctrinal trends of the state whose law it applies, and the policies which inform the prior adjudications by the state court ... The federal tribunal is thus obligated to follow the course that it expects New Jersey courts would adopt in similar circumstances. 487 F.Supp. at 1082.

Judge Ackerman had before him the decision in Kozlowski v. Kozlowski, supra, in which plaintiff was allowed to recover the reasonable value of her nonsexual services to defendant during the period of their cohabitation; he did not, of course, have the later opinion in Crowe v. DeGioia, supra, wherein a denial of recovery upon substantially similar facts limited the impact of Kozlowski. It appears that since the Kozlowski decision treated cohabitants as if they had been married with respect to their mutual obligations, Judge Ackerman assumed that New Jersey courts would treat cohabitants as if they were married with respect to third-party obligations to them also. The rationale of the Bulloch decision is that denial of recovery for loss of consortium to cohabitants is, in effect, a penalty for failure to marry,...