§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.

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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