Law School Case Brief
Fitzgerald v. Meissner & Hicks, Inc. - 38 Wis. 2d 571, 157 N.W.2d 595 (1968)
A wife may maintain an action for loss of consortium of her husband against a negligent tort-feasor provided, and on condition, that her cause of action is combined with that of her husband for his personal injuries.
On or about August 7, 1964, Richard Fitzgerald was seriously injured when he fell from a scaffolding while engaged in his employment at a construction site in the city of Milwaukee. Plaintiff-appellant, Marie E. Fitzgerald, filed this action on September 18, 1966, to recover for loss of consortium of her husband. Each of the defendants were owners of the site at the time of the accident. Defendants demurred to the complaint, which the trial court sustained, apparently on the basis upon a prior rule that a wife could not maintain an action for loss of consortium. Plaintiff-wife filed a notice of appeal, but five days later the Supreme Court of Wisconsin overruled its previous decision and held that a wife could maintain an action for loss of consortium of her husband who has been injured by the negligent acts of a third person.
Whether the wife's claim was for the separate and independent loss that she sustained after her husband's injuries and that she had a statutory right to assert her claim.
On review, the state supreme court reversed and remanded. The court found that the wife's claim was for the separate and independent loss that she sustained after her husband's injuries and that she had a statutory right to assert her claim. The court applied the reliance exception to the Blackstonian rule to the wife's loss of consortium claim. The court found that the elements of loss of society, affection, and sexual companionship were personal to her and were apart from a similar claim of her husband. The court concluded that three-year statute of limitations applied under Wis. Stat. § 893.205 and that the wife's claim was not barred. The court found that the only items recoverable now that those that were not recoverable before those so that there was no double recovery and that in order to recover for loss of consortium, her claim should have been joined with that of her husband.
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