Loss of consortium occurs when a spouse is deprived of love, companionship, emotional support and sexual relations because of personal injury suffered by his or her partner, when that injury was due to negligence or wrongdoing by another party.
In New Jersey, the definition of rights to a loss of consortium claim for same sex unions was tested in court. In one case, Marianne Brigando, who was injured while riding Disney World’s Splash Mountain, filed a lawsuit against Disney, seeking monetary damages to compensate for her injuries. The suit also claimed loss of consortium for Pamela Joy Binder, Brigando’s legal domestic partner. The case was filed in New Jersey court, where the couple lives.
In this case, two questions were relevant. First, is whether the rights afforded same sex couples under New Jersey’s domestic partnership law are retroactive back to the time of injury, or only back to the date of filing for domestic partnership. The injury occurred in June 2004. Weeks before Brigando filed the lawsuit in April of 2005, her and Binder filed for domestic partnership.
According to Judge Stanley R. Chesler of the New Jersey Superior Court, he was not even obliged to consider the above question.
Chesler ruled that rights to claim loss of consortium are afforded under the New Jersey Civil Union Act, but not under the domestic partnership act. The two had only filed for domestic partnership, which according to Chesler’s interpretation, was intended by the legislature to give only limited rights.
Judge James S. Rothschild, Jr, in another case involving loss of consortium, had a different opinion. He ruled that the language used by the legislature in the domestic partnership law had a wide enough scope to give a legal partner the right to sue. In this particular case, a Fairfield woman sued her employer, claiming that workplace sexual harassment caused her heart attack, which also resulted in loss of consortium for her domestic partner.
Since Rothschild’s ruling, which occurred before Chesler’s, was not been published, nor appealed, it does not set a legal precedent. Therefore, even if Chesler knew or was told of the Rothschild decision, it would not have any legal effect on the decision by Chesler in his superior court case.
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