Diaz v. Eli Lilly & Co.,
302 N.E. 2d 555 (1973)
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Procedure:Plaintiff wife challenged an order from the Superior Court (Massachusetts), which sustained defendant manufacturer's demurrer and refused leave to amend. Plaintiff's spouse suffered bodily injuries through defendant's alleged negligent manufacture of a fungicide and failure to give adequate warnings, and plaintiff claimed loss of consortium, including her husband's services, society, affection, companionship, and relations.

Facts:Milagros Diaz (P) alleges that she is the wife of Eli. Eli Lilly (D) manufactured Parnon. P alleged that D made use of Parnon in the course of his work and as a result of exposure sustained severe bodily injuries. W alleged a loss of consortium and that D was responsible as it failed to properly warn about Parnon. D demurred on that ground that no cause of action was stated. The demurrer was sustained and W appealed after she refused to amend the complaint.


Issue: Is there a current right to a cause of action for negligent loss of consortium?

Holding: Yes. Reversed.
The Supreme Judicial Court, Kaplan, J., held that either spouse has a claim for loss of consortium shown to arise from personal injury of other spouse caused by negligence of third person; accordingly, wife, whose husband was injured by reason of alleged negligence on part of defendant in manufacturing a fungicide which failed to provide the user with adequate warnings, could properly seek to recover from defendant for loss of consortium that resulted from her husband's injuries.

Rule: Either spouse has a claim for loss of consortium shown to arise from personal injury of other spouse caused by negligence of a third person; overruling LOMBARDI.

Analysis: In the Lombardo decision, the majority considered it to be the law that a spouse had no enforceable right for loss of consortium resulting from personal injury negligently inflicted on the other spouse and left any change to legislative action. In reflecting on that decision in considering plaintiff wife's complaint against defendant manufacturer for loss of consortium, the court asserted that there was an incongruity in allowing either spouse a consortium right for an intentional invasion but denying the right when the conjugal relationship suffered as much or more injury through third-party negligence. The court explained that there was no danger of double recovery because consortium no longer encompassed the element of services or earning capacity. The court opined that the legislature might be waiting for the common law to act. The order was reversed and the Lombardo decision overruled, and the court instructed that where a claim for physical injuries had been concluded by judgment, settlement, or the running of limitations prior to this opinion, no action for loss of consortium arising from the same incident would be allowed.