surviving spouse can recover for loss of decedent’s “love, companionship, comfort, affection, society, solace or moral support, loss of enjoyment of sexual relations, [and] loss of physical assistance in the operation or maintenance of the home”
How later courts described this case
- surviving spouse can recover for loss of decedent’s “love, companionship, comfort, affection, society, solace or moral support, loss of enjoyment of sexual relations, [and] loss of physical assistance in the operation or maintenance of the home”
- the plaintiff was not entitled to bring such a wrongful death action, despite the fact that she and the decedent had cohabitated, shared a child, and unsuccessfully attempted to marry in another state
- allowing recovery to unmarried cohabitant
Written by the judges who cited it.
Later courts went against this
Disapproved in part, on other grounds by Elden v. Sheldon, 46 Cal. 3d 267 (1988)
]" (Ledger v. Tippitt (1985) 164 Cal. App.3d 625, 633, 210 Cal.Rptr. 814, disapproved on another ground in Elden v. Sheldon (1988) 46 Cal.3d 267, 277, 250 Cal.Rptr. 254, 758 P.2d 582; see also Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 443, 138 Cal.Rptr. 302, 563 P.2d 858; Rodriguez, supra, 12 Cal.3d at p. 405, 115 Cal.Rptr. 765, 525 P.2d 669; 2 Judicial Council of California, Civil Jury Instructions No.…
The opinion
GILBERT, J., Concurring and Dissenting.
I respectfully dissent from that portion of the majority opinion that disallows a cause of action for loss of consortium. Because of the short interval between the injury suffered by Richard Arters II, and his death, the following discussion may be academic, but we are concerned only with whether Jennifer Ledger may state a cause of action for loss of consortium. I think she may.
*649 The majority gives as its most significant reason for failing to follow Butcher v. Superior Court (1983) 139 Cal.App.3d 58 [ 188 Cal.Rptr. 503 ], the vagueness of the standard it provides. It suggests that courts and juries will be confused by the standard and have to guess at its meaning. I submit it is no more difficult for a jury to determine what a “stable and significant” relationship is than it is for it to apply the reasonable doubt standard in a criminal case, or the reasonably prudent person standard in a negligence case.
In MacGregor v. Unemployment Ins. Appeals Bd. (1984) 37 Cal.3d 205 [ 207 Cal.Rptr. 823 , 689 P.2d 453 ], our Supreme Court found that MacGregor, an unmarried woman, left her employment in California for good cause so that she could live with her fiance, Bailey, and their minor child in New York. Although the trial court was not faced with an application of the Butcher standard, it had no difficulty in finding the establishment of a family unit: “The evidence here amply supports the trial court’s findings that MacGregor had ‘established a family unit consisting of herself, her fiance and their child’ and that she ‘chose to relocate to New York with her fiance and their child in order to maintain and preserve their family unit. ’ The record shows that MacGregor and Bailey had maintained a common household for over two years prior to the birth of their daughter. When the child was born the parents received her into that home and gave her Bailey’s surname. It is clear that both MacGregor and Bailey intend to and do provide a stable and secure home for their daughter.” (MacGregor v. Unemployment Ins. Appeals Bd., supra, 37 Cal.3d 205, 212-213 .) This very language evidences a finding of a stable and significant relationship between MacGregor and Bailey. The Butcher standard would be easy to apply in the MacGregor case, and it would be easy to apply here.
The elements that comprise consortium such as loss of support or services, love, companionship, affection, society, sexual relations, and solace, are as palpable and as real to Jennifer Ledger as if she had been married to Richard Arters II. They had tried to get married and they lived together with their son as a family. They differed from a married couple only in that they did not have a marriage certificate in the dresser drawer. It is both unrealistic and unduly optimistic to assume that such a certificate must be a prerequisite before one may produce evidence of the loss of those qualities of comfort, affection, love, and companionship enunciated in Rodriquez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382 [ 115 Cal.Rptr. 765 , 525 P.2d 669 ]. 1
*650 To deny recovery here is to apply the law rigidly, mechanically, and without regard to present day reality. In MacGregor , the Supreme Court recognized that, “[i]t is difficult to conceive of a more fundamental familial relationship than one which is created when two parents establish a home with their natural child. According to Black’s Law Dictionary, ‘family’ ‘most commonly refers to group of persons consisting of parents and children; . . .’ (5th ed. 1979.) In Moore Shipbuilding Corporation v. Industrial Accidents Commission (1921) 185 Cal. 200 , 207 . . . this court stated that ‘family’ may ‘mean different things under different circumstances. The family, for instance, may be ... a particular group of people related by blood or marriage, or not related at all, who are living together in the intimate and mutual interdependence of a single home or household. . . . ’ This court has recognized that ‘the family is the basic unit of our society, the center of the personal affections that ennoble and enrich human life. It channels biological drives that might otherwise become socially destructive; it ensures the care and education of children in a stable environment; it establishes continuity from one generation to another; it nurtures and develops the individual initiative that distinguishes a free people.’ (De Burgh v. De Burgh (1952) 39 Cal.2d 858, 863-864 . . . .)” (MacGregor v. Unemployment Ins. Appeals Bd., supra, 37 Cal.3d 205, 212 .)
The MacGregor court did not need a marriage certificate to know a family when it saw one. It would be just as easy for a trier of fact to apply the Butcher standard and find that a stable and significant relationship existed in the instant case.
To follow the Butcher case and allow Jennifer’s cause of action to stand would not topple or undermine the institution of marriage. While some persons may marry for cynical reasons, I doubt that the possibility of pleading a cause of action for loss of consortium for some potential future injury is one of them. (See Bulloch v. United States (D.N.J. 1980) 487 F.Supp. 1078, 1087 .)
To deny recovery here because of the absence of a marriage certificate supplies a windfall to tortfeasors who may fortuitously injure the partner of an unmarried couple rather than a married one. The party who has suffered a real loss, such as Jennifer Ledger, goes uncompensated. The rule stated in Butcher does not set in motion an avalanche of litigation, because as Jennifer points out, the Rodriquez court limits liability to foreseeable risk. In Rodriquez , the court stated that, “. . . one who negligently causes a severely disabling injury to an adult may reasonably expect that the injured person is married and his or her spouse will be adversely affected by that injury. In our society the likelihood that an injured adult will be a married man or woman is substantial, [fn. omitted] . . . [a]nd the probability that *651 the spouse of a severely disabled person will suffer a personal loss by reason of that injury is equally substantial.” (Rodriquez v. Bethlehem Steel Corp., supra, 12 Cal.3d at p. 400 .) In today’s society it is equally foreseeable that an injured person may be living with an unmarried partner with whom that person has a stable and significant relationship.
The absence of bright lines in Butcher does not trouble me as it does the majority. It is true that bright lines are helpful in fashioning rules that offer certainty and predictability in the law, but if these lines are too bright, they may blind us to reality and to a just result.
“But let us be very strange and well bred: let us be as strange as if we had been married a great while, and as well bred as if we were not married at all.” William Congreve, The Way of the World, Act IV, Scene V. See also, Meade, Consortium Rights of the Unmarried: Time for a Reappraisal (1981) 15 Fam. L. Q. 223.