The state of New Mexico recognizes loss of consortium damages in a personal injury claim. Loss of consortium damages are addressed in New Mexico Uniform Jury Instruction 13-1810A.
The jury instruction allows for recovery for the loss of consortium related to the injury of a spouse or child. However, New Mexico case-law has extended the loss of consortium to allow for the recovery by a child for the death of a parent. This is more accurately defined as loss of parental consortium.
In sum, in the case of injury or death of a spouse, child, or the parent of a minor child, loss of consortium damages may be recovered above and beyond the plaintiff’s own recoverable damages.
Briefly, loss of consortium damages are damages paid to the plaintiff’s immediate family members following a personal injury action. Loss of consortium damages are only available for the plaintiff’s spouse and child and are not available to any other individuals.
A court will award loss of consortium damages to the spouse for a variety of reasons, including loss of companionship and a decrease or absence of sexual relations between the two spouses. The plaintiff’s child can receive loss of consortium damages if, because of the personal injury, the plaintiff is unable to engage in the same activities with the child and the plaintiff is now unable to provide the emotional support and guidance the plaintiff did prior to the personal injury accident.
Before the court will award loss of consortium damages, the plaintiff’s spouse or child must provide evidence of the emotional impact of the plaintiff’s personal injury. If the plaintiff dies because of the personal injury accident and the plaintiff’s family is suing the defendant in a wrongful death action, proving the emotional harm following the plaintiff’s death is much easier to show.
To prove emotional harm outside of a wrongful death action, the plaintiff’s spouse or child must provide specific evidence of their harm. For example, if a spouse is asking for loss of consortium damages because of a lack of sexual intimacy, the spouse will have to provide intimate details of the spouses’ sexual relationship. As one expect, proving the loss of spousal consortium can be quite unpleasant and embarrassing to both the spouse and the plaintiff. In addition, it can distract and undermine the claims of the plaintiff. This issue is something that should be discussed in advance of filing a lawsuit with an experienced personal injury attorney.