Cruz v. Wright, 20465

• Decision Date: 02 November 1988
• Docket Number: No. 20465,20465
• Citation: 765 P.2d 869
• Parties: Lori CRUZ and Nicholas A. Cruz, Plaintiffs and Appellants, v. Jed WRIGHT, Defendant and Appellee.
• Court: Utah Supreme Court

Page 869

765 P.2d 869

Lori CRUZ and Nicholas A. Cruz, Plaintiffs and Appellants, v. Jed WRIGHT, Defendant and Appellee.

No. 20465.

Supreme Court of Utah.

Nov. 2, 1988.

Samuel King, Jeffrey O. Burkhardt, Salt Lake City, for plaintiffs and appellants.

D. Gary Christian, Gregory J. Sanders, Salt Lake City, for defendant and appellee.

ZIMMERMAN, Justice:

Plaintiff Lori Cruz appeals from the trial court's dismissal of her claim for loss of consortium arising out of injuries suffered by her husband in an automobile accident caused by defendant Jed Wright. Her primary argument on appeal is that article I, section 11 of the Utah Constitution--the open courts provision--prevented the legislature from abolishing the husband's common law cause of action for loss of consortium and that we should extend a parallel cause of action to the wife. We adhere to our prior decisions and hold that in passing the Married Women's Act of 1898, the legislature eliminated the common law loss-of-consortium cause of action. We further hold that the 1898 Act did not run afoul of article I, section 11.

Following an automobile accident in which Nicholas Cruz was injured, Nicholas and his wife, Lori, filed an action against the driver of the other car, Jed Wright, alleging that Nicholas was injured as a result of Wright's negligence. The complaint further alleged that because of those injuries, Nicholas had incurred medical expenses and had lost wages and Lori had lost the benefits of her husband's society, companionship, and affection. Nicholas sought damages for his injuries, and Lori sought to recover for loss of consortium.

On the first day of trial, Wright successfully moved to dismiss the loss-of-consortium claim. The case then went to trial on Nicholas's negligence claim. The jury found Wright 100 percent negligent and awarded Nicholas $142,784.34. That judgment has been paid by Wright and is not part of this appeal. The sole issue before us is whether the trial court properly dismissed the loss-of-consortium claim.

At common law, a husband could maintain a claim for loss of consortium against a third party who negligently injured his wife; his wife had no corresponding right. Hackford v. Utah Power & Light Co., 740 P.2d 1281, 1282 (Utah 1987); id. at 1289 (Durham, J., dissenting); Black v. United States, 263 F.Supp. 470, 471 (D. Utah 1967). In addition, only the husband could assert actions on behalf of his wife for injuries she might suffer at the hands of third persons because the wife was legally barred from suing or being sued. Hackford, 740 P.2d at 1291 (Durham, J., dissenting). As explained in Hackford, the loss-of-consortium cause of action was traditionally based on the notion that the husband had a right to his wife's services and an injury to her accordingly injured him. Id. at 1284; id. at 1291 (Durham, J., dissenting). The concept of services later came to include affection, society, and sexual relations. Hackford, 740 P.2d at 1284; W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 125 (5th ed. 1984).

Beginning in the 1840s, many states passed married women's acts. One of the main purposes of these acts was to create a right in married women to sue on their own behalf for personal injuries caused by third parties. See Hackford, 740 P.2d at 1291 (Durham, J., dissenting). Although married women's acts gave married women their own legal existence, the courts almost unanimously held that these acts did not confer a right to bring consortium claims arising out of injuries to husbands. Hackford, 740 P.2d at 1284. Some courts continued to hold, however, that a husband could maintain a right to sue for injuries to his wife. Id. Other courts, feeling that the married women's acts placed men and women on equal footing, abolished the husband's right to sue for loss of consortium. Id.

Courts continued to struggle with this disparate recognition of consortium claims until 1950, when the United States Court of Appeals for the District of Columbia Circuit discarded the traditional right-to-services basis for the cause of action and instead adopted the view that both husband and wife maintained an equal interest in a marital relationship and an equal right to sue for loss of consortium. Hitaffer v. Argonne Co., 183 F.2d 811, 813-16, 819 (D.C.Cir.), cert. denied, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624 (1950), overruled on other grounds sub nom. Smither & Co. v. Coles, 242 F.2d 220, 221, 226 (D.C.Cir.), cert. denied, 354 U.S. 914, 77 S.Ct. 1299, 1 L.Ed.2d 1429 (1957); see Hackford, 740 P.2d at 1284. The Hitaffer view was subsequently adopted by a majority of state courts which today recognize loss-of-consortium actions in both husbands and wives. Hackford, 740 P.2d at 1284; id. at 1288 (Howe, J., concurring).

In Hackford, we were faced with the question of whether a common law cause of action for loss of consortium existed in Utah and, if so, whether it should be extended to wives. A majority of the Court concluded that the settled view in this state, as expressed in the opinions of this Court and the practices of the Bar, was that if such a cause of action ever existed, it was abolished by the passage in 1898 of the Utah Married Women's Act. 740 P.2d at 1285-87 & n. 2; id. at 1288 (Howe, J., concurring).

The present case urges on us a different theory for reaching the same result sought by the plaintiff in Hackford--the establishment in Utah of a Hitaffer-type loss-of-consortium action for both husbands and wives. Lori Cruz's theory is that the common law loss-of-consortium cause of action existed at the time of the adoption of our constitution in 1896, that article I, section 11 of the constitution prohibits the alteration or abolition of any then-extant causes of action, that the 1898 Married Women's Act ¹ found in Hackford to have abolished the cause of action was unconstitutional and, therefore, that the cause of action still survives. She then argues that we should, as a matter of equality between the sexes, make it available to both husbands and wives. We decline to accept this argument.

Nowhere in this state's jurisprudence is it suggested that article I, section 11 flatly prohibits the legislature from altering or even abolishing certain rights which existed at common law. See Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670, 676, 680 (Utah 1985); Brown v. Wightman, 47 Utah 31, 32-34, 151 P. 366, 366-67 (1915); Utah Const. art. I, § 11. In fact, in Berry, we specifically stated that the legislature may eliminate or...