Printable Format23-2605. Loss or impairment of services; right of action. Where, through the wrong of another, a married person shall sustain personal injuries causing the loss or impairment of his or her ability to perform services, the right of action to recover damages for such loss or impairment shall vest solely in such person, and any recovery therefor, so far as it is based upon the loss or impairment of his or her ability to perform services in the household and in the discharge of his or her domestic duties, shall be for the benefit of such person's spouse so far as he or she shall be entitled thereto. Nothing herein shall in any way affect the right of the spouse to recover damages for the wrongful death of his or her spouse.
History: L. 1921, ch. 177, § 1; R.S. 1923, 23-205; L. 1976, ch. 172, § 5; July 1.
Source or Prior Law:
23-205.
Law Review and Bar Journal References:
“Loss of Consortium—The Wife’s Action,” Jerry K. Levy, 5 W.L.J. 112, 114, 121 (1965).
1963-65 survey of damages, David Prager, 14 K.L.R. 241 (1965).
Wife’s right to consortium, 14 W.L.J. 309, 318 (1975).
“Women Under the Law: The Pedestal or the Cage?” Louise A. Wheeler, 43 J.B.A.K. 25 (1974).
“Child’s Right to Sue for Negligent Disruption of Parental Consortium,” Derenda J. Mitchell, 22 W.L.J. 78, 94, 95, 96 (1982).
“Torts—Interspousal Immunity in Kansas: A Vestige of a Bygone Era—Guffy v. Guffy,” Catherine Hauber, 30 K.L.R. 611, 618, 621 (1982).
“Consortium and the Cap—The Dual Nature of Loss of Consortium Damages,” Michael L. Sexton, J.K.T.L.A. Vol. XVI, No. 6, 5 (1993).
“Our Statutory System for Actual Damages in Tort: Kansas in Wonderland?” Bruce Keplinger and Scott M. Adam, 63 J.K.B.A. No. 1, 18, 22 (1994).
“Don’t Forget Loss of Consortium Maximizing Damages,” Daniel B. Giroux, J.K.T.L.A. Vol. 29, No. 3, 4 (2006).
“Workers Compensation Review,” Joseph Seiwert, Editor, J.K.T.L.A. Vol. 29, No. 3, 23 (2006).
CASE ANNOTATIONS
1. Husband may recover for services as nurse to injured wife. Shattuck v. Pickwick Stages Corp., 135 K. 602, 605, 11 P.2d 996.
2. Wife alone may recover for inability to perform domestic duties. Taylor v. S. H. Kress & Co., 136 K. 155, 156, 12 P.2d 808.
3. Terms “services” and “domestic duties” as used herein defined. Clark v. Southwestern Greyhound Lines, 144 K. 344, 345, 346, 347, 58 P.2d 1128.
4. Action for loss or impairment of wife’s services vests in her. Foster v. Kopp, 151 K. 650, 651, 100 P.2d 660.
5. Petition may be framed in two causes of action. White v. Toombs, 162 K. 585, 586, 178 P.2d 206.
6. Statute enacted to avoid multiplicity of suits. White v. Toombs, 162 K. 585, 586, 178 P.2d 206.
7. Mentioned; damage action for personal injuries; guest statute applied. In re Estate of Dikeman, 178 K. 188, 189, 284 P.2d 622.
8. Cited but not construed. Wilson v. Cyrus, 178 K. 239, 284 P.2d 597.
9. Mentioned; malpractice action; damages for loss of services properly included. Capps v. Valk, 184 K. 796, 339 P.2d 62.
10. Action to recover damages for loss of services rests solely in the wife. Cornett v. City of Neodesha, 187 K. 60, 62, 64, 353 P.2d 975.
11. Cited; wrongful death action may be joined with action for personal injuries which survived. Concannon, Administrator, v. Taylor, 188 K. 143, 146, 360 P.2d 1085.
12. Mentioned in dismissing appeal from order on motion to strike. Hoffman v. Dautel, 190 K. 131, 132, 373 P.2d 191.
13. Section creates in wife single legal right for all loss suffered. Montgomery Ward & Co. v. Callahan, 127 F.2d 32, 36.
14. Mentioned; section eliminated husband’s separate cause of action. Igneri v. Cie. De Transports Oceaniques, 207 F.Supp. 236, 238.
15. Cases construing and history of section discussed; wife cannot maintain action for loss of consortium of husband. Criqui v. Blaw-Knox Company, 208 F.Supp. 605, 606, 607, 608.
16. Wife has no cause of action for loss of consortium resulting from husband’s injuries. Hoffman v. Dautel, 192 K. 406, 407, 408, 409, 415, 422, 388 P.2d 615.
17. Wife has no cause of action for loss of consortium from injury to husband by third party; K.S.A. 23-203 and 23-205 modify common law. Criqui v. Blaw-Knox Corporation, 318 F.2d 811, 813, 814.
18. Discussed in holding medical expenses of wife recoverable in action by husband. Kelley v. Lee, 204 K. 317, 318, 319, 320, 321, 322, 461 P.2d 806.
19. In action hereunder, failure to give plaintiffs’ requested instruction on right to recover for an aggravation of a pre-existing condition is not reversible error. McLinn v. Thompson, 204 K. 673, 466 P.2d 270.
20. Plaintiff’s right to sue for loss of consortium not barred by former provisions of this section; provisions limiting right to sue to men only unconstitutional. Mann v. Golden, 428 F.Supp. 560, 561, 564.
21. Applied; malpractice action; husband did not have separate cause of action; application of entire settlement amount against general verdict proper. Lupton v. Torbey, 548 F.2d 316, 320.
22. Wife’s motion to intervene in damage action by husband to assert claim for loss of consortium properly denied; 1976 amendment not prospective. Albertson v. Travis, 2 K.A.2d 153, 154, 155, 157, 576 P.2d 1090.
23. Cited in holding one spouse may not sue the other for torts occurring during marriage. Guffy v. Guffy, 230 K. 89, 95, 631 P.2d 646 (1982).
24. Parent has no cause of action for injuries to adult child. Schmeck v. City of Shawnee, 231 K. 588, 593, 647 P.2d 1263 (1982).
25. Where jury did not reject uncontroverted testimony on loss of consortium damages, negative finding of zero damages upheld. Briscoe v. Ehrlich, 9 K.A.2d 191, 192, 674 P.2d 1064 (1984).
26. Damages for loss of consortium is to plaintiff for benefit of spouse; reduced by proportionate share of plaintiff’s negligence. McGuire v. Sifers, 235 K. 368, 384, 385, 681 P.2d 1025 (1984).
27. Instruction on mental anguish, emotional upset, anxiety and suffering within meaning of statute. Cleveland v. Wong, 237 K. 410, 423, 701 P.2d 1301 (1985).
28. Cited; testimony by spouses on loss of consortium so uniquely irrefutable as to permit jury latitude of negative finding. Tice v. Ebeling, 238 K. 704, 710, 711, 715 P.2d 397 (1986).
29. Wife had no separate cause of action for consortium due to personal injury of spouse. Annis v. Butler Mfg. Co., 715 F.Supp. 328 (1989).
30. Loss of services recovered in third-party action under workers compensation act determined subject to subrogation. McGranahan v. McGough, 15 K.A.2d 24, 28, 802 P.2d 593 (1990).
31. Worker’s action against third party for loss of services is for damages not recoverable under workers’ compensation act; subrogation disallowed. McGranahan v. McGough, 249 K. 328, 338, 820 P.2d 403 (1991).
32. Recovery for loss of consortium vests in spouse who files personal injury action, not spouse who suffers consortium loss. Stucky V. Health Care Products, Inc., 794 F.Supp. 1069, 1070 (1992).
33. Whether plaintiff can maintain an action for loss of consortium as a result of sexual harassment examined. Ulrich v. K-Mart Corp., 858 F.Supp. 1087, 1095 (1994).
34. Cited; cause of action by minor for loss of parental care and society due to negligent injury to parents not recognized. Klaus v. Fox Valley Systems, Inc., 259 K. 522, 528, 912 P.2d 703 (1996).
35. Loss of consortium damages were economic damages for purposes of state statutory limit on noneconomic damages. Wolfgang v. Mid-American Motorsports, Inc., 914 F.Supp. 434, 438 (1996).
36. Issue regarding whether plaintiff was common-law married for consortium claim purposes precluded summary judgment. Dixon v. Certainteed Corp., 915 F.Supp. 1158, 1159 (1996).
37. Adverse summary judgment ruling on intentional infliction of emotional distress precluded claim of loss of consortium. Ratts v. Board of County Com’r, Harvey County, KS., 141 F.Supp.2d 1289, 1324 (2001).
38. Plaintiff may assert loss of consortium claim for latent injuries discovered after plaintiff married. Baughn v. Eli Lilly and Co., 356 F.Supp.2d 1177, 1181 (2005).