Opinion

Fuller v. Buhrow

  • 292 N.W.2d 672
  • 1980 Iowa Sup. LEXIS 862
Court
Supreme Court of Iowa
Filed
May 21, 1980
Status
Published
Author
Uhlenhopp
On the bench
Allbee, Division I, Division II, Harris, Larson, LeGRAND, McCORMICK, McGIVERIN, Rees, Reynold-Son, Reynoldson
Cited by
27 cases
Authority
More cited than 9.9%

“This contention by defendant [spouse has no separate and distinct damage by virtue of his or her loss of consortium] is contradicted by decisions of this court that have recognized that consortium is a separate property right of each spouse to the marital relationship.”

How later courts described this case

  • “This contention by defendant [spouse has no separate and distinct damage by virtue of his or her loss of consortium] is contradicted by decisions of this court that have recognized that consortium is a separate property right of each spouse to the marital relationship.”
  • “The distinct nature of each spouse’s right to consortium is perhaps most clearly evidenced by the fact that either spouse may sue for loss of consortium by means of an alienation of affections action even though the other spouse was a joint tortfeasor.”

Written by the judges who cited it.

The opinion

UHLENHOPP, Justice

(concurring specially in part, dissenting in part).

I. While I favor the comparative negligence rule, I think that if it comes it should be ushered in by the General Assembly. This will allow substantial input by the bar and other interested groups, individually and through committees. The General Assembly is in a position to develop and adopt a comprehensive statute which not only makes the basic transition but also treats other vexing problems that accompany comparative negligence, such as those relating to contribution and indemnity. On the other hand, if the General Assembly decides to retain contributory negligence the judiciary should not “overrule” the legislature and force comparative negligence on the state. This is not a constitutional issue on which the General Assembly has no choice; it is a policy issue. I would therefore simply adhere to our pronouncement in Stewart v. Madison, 278 N.W.2d 284 (Iowa 1979).

II. Under the contributory negligence doctrine I dissent from allowing loss of consortium damages of which the negligence of the injured spouse was a proximate cause, for reasons similar to those stated in my dissenting opinion in Hande-land v. Brown, 216 N.W.2d 574 (Iowa 1974).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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