Hopson v. St. Mary's Hospital

• Citation: 408 A.2d 260,176 Conn. 485
• Court: Supreme Court of Connecticut
• Decision Date: 23 January 1979
• Parties: Patricia HOPSON et al. v. ST. MARY'S HOSPITAL et al.

Page 260

408 A.2d 260

176 Conn. 485

Patricia HOPSON et al. v. ST. MARY'S HOSPITAL et al.

Supreme Court of Connecticut.

Argued Nov. 14, 1978.

Decided Jan. 23, 1979.

Stephen I. Traub, New Haven, with whom, on the brief, was Donald F. Snow, Jr., New Haven, for appellants (plaintiffs).

Margaret J. Berthold, with whom, on the brief, was Anthony M. Fitzgerald, Waterbury, for appellee (named defendant).

Frederick W. Christie, Bridgeport, for appellee (defendant Charles Larkin, Jr.).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

BOGDANSKI, Associate Justice.

The plaintiffs, Edward and Patricia Hopson, husband and wife, brought a malpractice action against the defendants, St. Mary's Hospital and Charles Larkin, Jr., a physician, wherein they sought to recover damages for injuries allegedly sustained by the wife during surgery. In the complaint Edward Hopson also claimed that because of the defendants' negligence he was deprived of the love, affection and consortium of his wife, Patricia Hopson. The defendants each demurred to that portion of the complaint, alleging that no action for loss of consortium is recognized in Connecticut. From the judgment of the court rendered on the demurrers sustained ¹ the plaintiffs have appealed to this court.

The plaintiffs' appeal requires this court to decide whether the courts of this state will continue to adhere to the rule established in the case of Marri v. Stamford Street R. Co., 84 Conn. 9, 78 A. 582 (1911), to the effect that a married person whose spouse has been injured by the negligence of a third party has no cause of action for loss of consortium. As will appear, we have concluded that the reasoning which led to the decision in Marri is no longer applicable and that this decision should now be overruled.

I

The term "consortium" is usually defined as encompassing the services of the wife, the financial support of the husband, and the variety of intangible relations which exist between spouses living together in marriage. Prosser, Torts (4th Ed. 1971) § 124, pp. 881-82. These intangible elements are generally described in terms of "affection, society, companionship and sexual relations." Comment, "The Action for Loss of Consortium in New Mexico," 2 N.Mex.L.Rev. 107, 108 (1972). These intangibles have also been defined as the "constellation of companionship, dependence, reliance, affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of marriage." Brown v. Kistleman, 177 Ind. 692, 98 N.E. 631 (1912); Lippman, "The Breakdown of Consortium," 30 Colum.L.Rev. 651 (1930); Pound, "Individual Interests in the Domestic Relations," 14 Mich.L.Rev. 177 (1916); Holbrook, "The Change in the Meaning of Consortium," 22 Mich.L.Rev. 1 (1923).

The action for loss of consortium developed at common law in the context of suits by the husband for damages stemming from interference with the marital relationship. See 3 Blackstone, Commentaries, pp 138-40. Interference with the husband's rights to his wife's services or society, whether of an intentional or negligent nature, gave rise to a cause of action based on the husband's quasi-proprietary interest in his wife. Rosenberg, "Negligently Caused Loss of Consortium A Case for Recognition as a Cause of Action in Connecticut," 2 Conn.L.Rev. 399, 400 (1969). Under the common law, a wife had no legal claim to the services or society of her husband, the sole duty of the husband being to support the wife. As a result it was generally thought that an injury to the husband could not cause the breach of any duty owing to the wife and the wife was therefore afforded no right of recovery for loss of consortium at common law.

By the nineteenth century, the decisions began to emphasize the "services" aspect of the husband's consortium interest. The precise activities encompassed by the term "services" were, however, never uniformly defined. In Connecticut, the courts generally interpreted it to mean those services "which found their expression at the domestic fireside, and in all manner of aid, assistance and helpfulness in all the relations of domestic life." Marri v. Stamford Street R. Co., supra, 84 Conn. 12, 78 A. 583. During this era the "sentimental" aspects of consortium were either not considered or were held to be too subsidiary for their loss to be considered. See Brett, "Consortium and Servitium, A History and Some Proposals," 29 Austl.L.J. 321, 394 (1955).

The Married Women's Acts enacted in the mid-nineteenth century freed married women from the disabilities attaching to their status under the common law. Women, though married, were given the right to sue and be sued in their own right and "(t)he question naturally arose whether . . . the husband's actions . . . for loss of consortium should be ruled obsolete or whether . . . they should be held to survive in substantial dimension and be complemented by analogous remedies extended to the wife. . . . It was held very widely that husbands still retained their consortium rights . . . .And it was generally held that the new status of married women implied at least some rights of consortium on their part." Diaz v. Eli Lilly & Co., 364 Mass. 153, 155-56, 302 N.E.2d 555, 557 (1973).

While married women generally gained the right to recover for loss of consortium in cases involving intentional torts, most courts continued to deny a wife's right to recover for loss of consortium when the injury which deprived the wife of her husband's society and companionship was negligently inflicted by a third party. Lockwood v. Wilson H. Lee Co., 144 Conn. 155, 128 A.2d 330 (1956); Feneff v. New York Central & Hudson River R. Co., 203 Mass. 278, 89 N.E. 436 (1909).

It was not until a century after the Married Women's Acts that the landmark case of Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811 (D.C.Cir.1950), cert. denied, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624 (1950), was decided. In Hitaffer, the Court of Appeals of the District of Columbia Circuit held that a wife has a cause of action for loss of consortium due to an injury negligently inflicted upon her spouse by a third party. In that opinion, consortium was defined as a "conceptualistic unity," which combines inseverably both "sentimental" and "service" elements. In the years since Hitaffer, many states have liberalized their views on consortium, and the weight of authority as to a wife's recovery for loss of consortium when her husband is injured by the negligent act of a third party has dramatically changed. Several states have reversed their earlier positions and have permitted recovery by a wife, even though prior decisions had held that neither party could bring a cause of action for loss of consortium. Rodriquez v. Bethlehem Steel Corporation, 12 Cal.3d 382, 115 Cal.Rptr. 765, 771, 525 P.2d 669, 675 (1974); Diaz v. Eli Lilly & Co., 364 Mass. 153, 302 N.E.2d 555 (1973); Montgomery v. Stephan, 359 Mich. 33, 101 N.W.2d 227 (1960).

II

Connecticut's law on consortium rests almost entirely on the 1911 decision in Marri v. Stamford Street R. Co., supra. In that case, the plaintiffs, Mr. and Mrs. Emil Marri, were injured in a collision with a trolley car and brought suit seeking damages for the personal injuries sustained in the accident. The complaint also included a claim by the plaintiff husband for damages for loss of consortium. On appeal, this court denied the husband's claim for the loss of consortium and held that the recovery ² of the husband must be limited to the expenses which he had incurred as a result of the injuries to his wife.

The decision in Marri was based largely upon the changes in the common law brought about by the enactment in Connecticut of the Married Women's Act (Public Acts 187, chapter 114). The court in Marri, however, unlike the courts in most other jurisdictions, concluded that the effect of the Married Women's Act was not to extend to the wife a cause of action for consortium, but rather to render obsolete the husband's cause of action in cases involving negligently inflicted injury to the wife. The court observed (84 Conn. p. 19, 78 A. p. 585) that in a consortium claim based on negligently inflicted physical injury to the wife, the predominant factor of damages was the "loss of service and the capacity for service resulting from diminished or destroyed ability to serve," whereas in actions arising from intentional torts such as criminal conversation or alienation of affections, the destruction or impairment of conjugal affection, society or companionship would be the predominant elements of the husband's loss. The court concluded that, inasmuch as the real basis for recovery in cases involving negligent torts was the loss of services, and since the wife was now permitted to recover in her own name for any impairment of her capacity for service, her remedy should be exclusive, and that the husband should therefore be limited to recovering the expenses which he had incurred by reason of the negligent injury to his wife. The Marri court also expressed concern about the remote and indirect nature of the consortium injury and the possibility of double recovery. Examination of the reasoning in Marri reveals that the decision rested primarily upon distinctions then drawn between the sentimental and service aspects of claims for loss of consortium.

Over the years the Marri decision has been the subject of criticism by scholars and courts alike. See Hoekstra v. Helgeland, 78 S.D. 82, 98 N.W.2d 669 (1959); Diaz v. Eli Lilly & Co., supra; Rodriquez v. Bethlehem Steel Corporation, supra. Marri has often been criticized for ignoring the possibility that a spouse might be more seriously deprived of the "sentimental" advantages of marriage as the result of a physical injury to the other spouse than as the result of intentional wrongdoing by a third party, as in alienation of affections. As the court in Hoekstra observed (...