§31.1 Applicability of Damage Cap to Loss of Consortium Claim

The Case: Swafford v. City of Chattanooga, 743 S.W.2d 174 (Tenn. Ct. App. 1997).

The Basic Facts: Husband was hurt in a motor vehicle wreck and sued the City of Chattanooga, among others. Wife brought loss of consortium claim. Husband was awarded maximum damages available under the Governmental Tort Liability Act, and trial judge held that wife could not be awarded damages for loss of consortium because the husband's claim had exhausted the GTLA limits.

The Bottom Line:

• "Although a husband's or wife's claim for loss of consortium will always be 'derivative' in the sense that the injuries to his or her spouse are an element and must be proved, the right to recover for loss of consortium is a right independent of the spouse's right to recover for the injuries themselves. The Tennessee Governmental Tort Liability Act reads in pertinent part as follows: ''injury' means death, injury to a person, damage to or loss of property or any other injury that a person may suffer to his person, or estate, that would be actionable if inflicted by a private person or his agent.' [Tenn. Code Ann. § 29-20-102(4) (1980 and Supp. 1986)]. Although § 29-20-403 refers only to 'bodily injury or death' in setting the minimum limits of liability coverage under the Act, we think that the specific removal of immunity upon which recovery here rests-that of removal of immunity for injury from unsafe streets and highways of § 29-20-203-controls. It reads that 'immunity from suit of a governmental entity is removed for any injury caused by defective, unsafe, or dangerous condition....' (emphasis added). To hold that the language 'bodily injury or death' of § 29-20-403 controlled would create an exception to the clear removals of immunity created by §§ 29-20-201, -202, -203, -204, and -205. We therefore remand this case to the trial court to award judgment to Ms. Swafford for her damages due to loss of consortium." 743 S.W.2d at 178-79.