B Sr BRie-r IN THE UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT. No Appeal from the United States District Court for the

Transcription

1 Z.]) B Sr BRie-r ft:tg'( C rvfs co~pe-rmoij IN THE UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT No JAMES M. GREENBURG and DEBRA A. GREENBURG, Appellees v. HAROLD M. WATKINS and THE STAMFORD SOX, INC., Appellants Appeal from the United States District Court for the Western District of Drucker BRIEF FOR THE APPELLEES October ~2, 1981 Counsel for the Appellees \\\ School of Law Washington & Lee University Lexington, Virginia

2 TABLE OF CONTENTS Page Table of Citations iii Statement of Jurisdiction Questions Presented Statement of the Case Surnrnary of the Argument Argument I. THE TRIAL COURT JUDGE PROPERLY INSTRUCTED THE JURY REGARDING APPELLANTS' LIABILITY FOR THE INJURY TO JAMES GREENBURG A. The Trial Court Judge's Instructions On Watkins' Liability For Greenburg's Injuries Were Correct The trial court instructed the jury to apply the appropriate standard for reckless misconduct The trial court was correct to deny the appellants' suggested instruction on legal duty a. Appellants' instruction regarding the lack of a duty to other players during a professional football game was incorrect b. Appellants' instruction requiring a finding of an intentional act was incorrect The trial court was correct to deny the appellants' instructions on assumption of the risk B. The Trial Court Judge Correctly Instructed The Jury Regarding Vicarious Liability The instructions given on vicarious liability were proper The judge properly denied the Instruction C submitted by the Stamford Sox, Inc. on vicarious liability... 13

3 ii Page II. DEBRA GREENBURG WAS ENTITLED TO RECOVERY FOR LOSS OF CONSORTIUM AS THE DE FACTO WIFE OF JAMES GREENBURG, AND THE DISTRICT COURT AWARDED APPRO- PRIATE DAMA.GES A. The Lower Court Did Not Err In Its Ruling That Debra Greenburg Had A Cause Of Action For Loss Of Consortium Allowing a de facto spouse to have a cause of action is consistent with the law governing recovery for loss of consortium Allowing a cause of action for loss of consortium does not pose practical or administrative problems a. "Drawing the line" for loss of consortium claims at marriage would be illogical b. Allowing a de facto spouse to have a cause of action does not inordinately expand the potential liability for loss of consortium Allowing a de facto spouse to have a cause of action is consistent with current societal and legal trends B. The Court Of Appeals Should Affirm The Measure Of Damages Awarded To Debra Greenburg The damages. awarded Debra Greenburg were not excessive Conclusion No portion of the damages awarded to Mrs. Greenburg represent a double recovery for the appellees..... The district court was correct in denying the appellants proposed jury instruction regarding marital discord Appendix A

4 <. iii TABLE OF CITATIONS CASES: Page Aretz v. United States. 456 F. Supp. 397 (S.D. Ga. 1978), aff'd, 604 F.2d 417 (5th Cir. 1979) Ballard v. Limbermen's Mutual Casualty Co., 33 Wis. 2d 601, 148 N.W.2d 65 (1972) ,20 Bedillion v. Frazee, 408 Pa. 281., 183 A. 2d 341 (1962).. 17 Blond v. Overesch, 527 S.W.2d 663 (Mo. Ct. App. 1975).. 20 Bourque v. Duplechin, 331 So. 2d 40 {La. App. 1976)... 9,11 Bulloch v. United States, 487 F. Supp (D.N.J. 1980)... J.6,17,18 Christman v. Bailey, 38 A.D.2d 773, 327 N.Y.S.2d 966 (1972) Cooper v. Lish, 318 F.2d 262 (D.C. Cir. 1963) DeVito v. Hoffman, 199 F.2d 468 (D.C. Cir. 1952) Domany v. Otis Elevator Co., 369 F.2d 604 (6th Cir. 1966), cert. denied, 387 u.s~ 942 ( 1967) Dudley v. William Penn College, 219 N.W.2d 484 (Iowa 1974) Ekalo v. Constructive Services Corp., 46 N.J. 82, 215 A. 2d 1 ( ) Griffin v. United States, 500 F.2d 1059 (3d Cir. 1974). 21 Hackbart als Inc., 601 F.2d 516 den1ed, 444 u.s. 931 {1979). 7,9,10 Hackbart Cincinnati Ben Inc., 435 F. Supp. D. Colo Hightower v. Landrum, 109 Ga. App. 510, 136 S.E.2d 425 (1964) Hitaffer v. Argonne Co., 183 F.2d 811 (D.C. Cir., f 9 50), ~. denied, 3 4 0, 8 52 { 19 50) , 15 Hyde v. Scyssor, 79 Eng. Rep Hysell v. Iowa Public service Co., 534 F. 2d 775 ( 8th c ir )

5 iv Page Jones v. Waterman s.s. Corp., 155 F.2d 992 (3d Cir. 1946) Kai1imai v. Firestone Tire & Rubber Co., 87 Mich. App. 144, 273 N.W.2d 906 (Mich. Ct. App ) Kazin v. Kazin, 81 N.J. 85, 405 A.2d 360 (1979).... Kotsiris v. Ling, 451 S.W.2d 411 (Ky. Ct. App. 1970) Lucas v. Hamm, 56 Cal. 2d 583, 364 P.2d 685, 15 Ca. Rptr. 821 (1961), cert. denied, 382 u.s. 987 (1962) Manning v. Jones., 349 F.2d 992 (8th Cir. 1965) Marvin v. Marvin, 18 Cal. 3d 660, 557 P.2d 106, 134 Cal. Rptr. 815 (1976) Metropolitan St. R.R. v. Johnson, 91 Ga. 466, 18 S.E. 816 (1893) Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 239 N.E.2d 897 (1968)... Morrow v. Greyhound Lines, Inc., 541 F.2d 713 (8th Cir ).... Moteburg v. Johnson, 297 Minn. 28, 210 N.W.2d 27 (1973) Nabozny v. Barnhill, 31 Ill. App. 3d 212 (Ill. App ).... Ossenfort v. Ass'd Milk Producers, Inc., 254 N.W.2d (Minn ) ,11 14,21 Ro.driguez v. Bethlehem steel corp., 12 Cal. 3d 382, 525 P.2d 669, 115 Cal. Rptr. 765 (1974).... Sawyer v. Bailey, 413 A.2d 165 (Me. Sup. Jud. Ct. JL980) Scoville v. Missouri Pacific R. Co., 458 F.2d ( 8th C ir ) State v. Saunders, 75 N.J. 200, 381 A.2d 333 (1977).. 19 Toone v. Adams, 137 S.E.2d 132 (N.C. 1964) Tremblay v. Carter, 390 So. 2d 816 [Fla. 1980)

6 v Page Washington v. Jones, 386 Mich. 466, 192 N.W.2d 234 (1971).... West v. Barton-Malow Co., 394 Mich. 334, 230 N.W.2d 545 (1979) OTHER AUTHORITY: 58 Am. Jur. 2d, Negligence Conunent, "Torts-...:civil Liability of Athletes- Professional Football Player May Have Claim For Injuries Intentionally Inflicted During Football Game. Hackbart v. Cincinnati Bengals, Inc.~l F.2d 516 (lot.h Cir. 1979)," 84 Dick. L. Rev. 753 (1980) =-:-:-:- Note, "Property Rights of Nonmarital Partners in Meretricous Cohabitation," 13 N.E. L. Rev ( ) W. Prosser, Handbook of the Law of Torts (4th ed. 1971).... The Restatement of Torts, Second The Restatement of Torts, Second 496 The Restatement of Torts, Second 500 United States Department of Commerce, Bureau of the Census, Pocket Data Book (1973) The Restatement of Agency, Second 219, , ,9 10,11 6,7,10 19,21 12

7 IN THE UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT No JAMES M. GREENBURG AND DEBRA A. GREENBURG, Appellees v. HAROLD M. WATKINS ~D THE STAMFORD SOX, INC., Appellants Appeal from the United States District Court for the Western District of Drucker BRIEF FOR THE APPELLEES STATEMENT OF JURISDICTION The jurisdiction of the Court of Appeals for the Twelfth Circuit is invoked under 28 U.S.C

8 - 2 - QUESTIONS PRESENTED I. Whether the trial court judge properly instructed the jury regarding the appellants' liability for the injuries to James Greenburg. II. Whether the trial court correctly found that Debra Greenburg was entitled to the damages for loss of consortium which the jury awarded. STATEMENT OF THE CASE This case is brought on appeal from the District Court for the Western District of Drucker. The case arose out an incident, during the playing of a professional football game, which resulted in injuries to plaintiff James M. Greenburg. At trial, the jury returned a verdict for plaintiff, finding defendants Watkins and the Stamford Sox, Inc., jointly and severally liable for Greenfurg's injuries and awarding damages of $1.5 million. The jury also returned a verdict for co-plaintiff Debra Greenburg, the wife of James Greenburg. The jury found the defendants jointly and severally liable for Debra Greenburg's loss of consortium and awarded damages in the amount of $500,000. On January 16, 1977J the Milford Macks were playing the Stamford Sox in the Super Game for the championship of the World Football League. During the game Harold "Mad Dog" Watkins, a defensive safety for the Stamford Sox, tackled James Greenburg, an end on the offensive squad of the Milford Macks. As a result of a neck. injury sustained in the tackle by Watkins, Greenburg will remain paralyzed from the neck down for the rest of his life. After a hard ~ought but scoreless first half of the Super

9 Game, the Macks had possession of the ball at the beginning of the second half. On the first play, Greenburg caught a long pass at the fifty yard line. As Greenburg ran down the sideline, he was no more than two feet from the out-of-bounds line. Rather than push Greenburg out of bounds to end the play, Watkins grabbed Greenburg's face-mask and threw the receiver on the ground, causing him to suffer the neck injury and consequent paralysis. Watkins' act in grabbing Greenburg's face mask was in violation of the rules of the World Football League. An official in the Super Game,James Childs, witnessed the entire incident and called a penalty when Watkins grabbed the face-mask. Childs ordered Watkins to leave the game. Testimony at trial established that Watkins' act was a clear violation of the safety rule which prohibits the grabbing of another player's face-mask. Greenburg's suit against Watkins is based on a theory of reckless misconduct. At the time of the injury to Greenburg, Watkins was an employee of the Stamford Sox. A player contract existed between Watkins and the Sox, and Watkins was performing under that contract when playing in the Super Game. The Stamford Sox did not dispute the fact that Watkins was its employee. Greenburg's suit against the Stamford Sox, Inc. is predicated on vicarious liability of the team for its player's actions. Debra A. Greenburg joined her husband's action against Watkins and the Stamford Sox, alleging loss of consortium. The Greenburgs live in Sunny Acres, a suburb of Milford. They have two children, Jimmy, age eight, and Sally Anne, age six. Debra and James Greenburg had lived together for seven

10 - 4 - years prior to the infliction of James' injury. The Greenburgs have been regarded by the community as husband and wife during the entire time they have lived at Sunny Acres. The injuries which James sustained in the Super Game forced them to postpone their actual marriage until November 5, Prior to James' paralysis, the Greenburgs actively participated in recreational and cultural activities with their two small children. The children enjoyed a well-adjusted and happy childhood. Debra was involved in various social and community service activities. As a result of James' paralysis, Debra Greenburg is entirely responsible for raising her children and maintaining her household. She and her husband no longer enjoy a satisfactory sexual relationship. Debra Greenburg's action against the defendants claimed damages for loss of her husband's corsortium. The trial court judge entered judgment in the jury's verdict finding that defendants Watkins and Stamford Sox, Inc. jointly and severally liable to the plaintiffs. The trial court judge denied the defendants' motion for a new trial. The defendants appeal certain rulings which the judge made during trial. SUMMARY OF THE ARGUMENT I. Appellant Watkins is liable to the appellees because James Greenburg's injuries were the result of Watkins' reckless misconduct. The appellees do not rely on negligence or intentional tort theories, and instructions based on those theories would be irrelevant and improper. Watkins owed a duty to all other players in the game not to subject them to injury by recklessly violating

11 - 5 - the safety rules of the game. The instructions which the trial court judge gave the jury were correct. To have given the instru~ tions suggested by the defendants would have been erroneous. The evidence did not establish that Watkins committed an intentional tort. Watkins act was within the scope of his employment as a professional football player. Therefore, the jury instruction regarding the Stamford Sox, Inc.'s vicarious liability to the Greenburgs was correct. II. The tortious conduct of Harold Watkins severely damaged Debra Greenburg. The trial court allowed Mrs. Greenburg to bring suit against Mr. Watkins and his employer seeking compensation for the damage caused by Mr. Greenburg's reckless misconduct. Under the policy behind tort law in general and particularly the law relating to loss of consortium, Mrs. Greenburg is entitled to recover. Furthermore, in light of the facts relating to the Greenburg's relationship and damage awards in similar cases, the jury verdict of damages for loss of consortium of $500,000 is fair and just compensation for Mrs. Greenburg. ARGUMENT I. THE TRIAL COURT JUDGE PROPERLY INSTRUCTED THE JURY REGARDING APPELLANTS' LIABILITY FOR THE INJURY TO JAMES GREENBURG. The Greenburgs suit against the appellants was based on the theory of reckless misconduct. The instruction which the judge gave to the jury properly defines and applies the standard for a reckless misconduct action. The instructions which the appellant proposed dealt with the standards for an intentional tort. The trial court judge properly refused to give the irrelevant and

12 - 6 - erroneous instructions. A. The Trial Court Judge's Instructions On Watkins' Liability For Greenburg's Injuries Were Correct. The jury instructions regarding liability placed the burden on James Greenburg to show that Watkins' conduct was reckless, and that the recklessness was the proximate cause of Greenburg's injuries. (See Appendix, Instruction l(a)). The judge properly defined reckless conduct as "acting with a reckless indifference to the consequences to another person when the defendant is aware of his conduct and is also aware, from his knowledge of existing circumstances and conditions, that his conduct would probably result in injury to another." (Appendix, Instruction l(b)). 1. The trial court instructed the jury to apply the appropriate standard for reckless misconduct. The Restatement of Torts, Second disregard of safety as "an actor's conduct 500 defines reckless. if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent." Restatement of Torts, Second BOO at 587. Reckless misconduct differs from negligence in that negligence merely involves inadvertence, lack of skillfulness or failure to take precautions, whereas reckless misconduct involves the choice of a course of action. Comment f to section 500 distinguishes between intentional misconduct and reckless misconduct. "While an act to be reckless

13 - 7 - must be intended by the actor, the actor does not intend to cause the harm which results from it." Restatement of Torts, Second 500, comment f at 590. Thus, to establish Watkins' reckless misconduct it was necessary to show that Watkins intended the "act" of the facemask violation and that a reasonable person would have known that there was a strong probability that harm would result to Greenburg. The instructions which Judge Miller gave to the jury, and upon which the jury decided the Watkins was liable to Greenburg, precisely described the appropriate standard. The Tenth Circuit in Hackbart v Cincinnati Bengals, Inc., 601 F.2d 516 (loth Cir.) cert. denied 444 u.s. 931 (1979), found )-- that the reckless misconduct standard was applicable to a fact situation which was very similar to the facts of this case. After discussing the definition of 500, the Hackbart court stated that "[i]n ruling that recklessness is the appropriate standard and that assault and battery is not the exclusive one, we are saying that these two liability concepts are not necessarily opposed one to the other. Rather, recklessness under 500 of the Restatement might be regarded, for the purpose of analysis at least, a lesser included act." 601 F.2d at 524. The appellee, Greenburg based his claim on the theory of reckless misconduct. As the Hackbart decision explains, the claim is appropriate in this case. Id. Hackbart involved a professional football player's tortious act to another during a game 1 but in violation of the rules. The Hackbart court recognized that section 500 of the Restauement is the appropriate source for the definition of reckless misconduct. Judge Miller correctly adopted the

14 - 8 - Restatement definition in the instructions with which she charged the jury 2. The trial judge was correct to deny the appellants' suggested instruction on legal duty. a. Appellants' instruction regarding the lack of a duty to other players during a professional football game was incorrect. The appellants suggested that the judge instruct the jury that they must find for the defendants (appellants) "if Mr. Watkins' conduct occurred during the normal course of a professional football game." (Appendix, Instruction A). The position which the appellants set forth in the proposed instruction was explicitly rejected by the Illinois Court of Appeals in Nabozny v. Barnhill, 31 Ill. App. 3d 212 (Ill. App. 1975). Nabozny involved an injury to a soccer goalie during the course of an amateur game. The act resulting in the injury was in violation of the rules of the game. The Nabozny court held that in an athletic competition where "a recognized set of rules governs the conduct of the competition and a safety rule is contained therein which is primarily designed to protect players from serious injury, a player is then charged with a legal duty to every other player on the field to refrain from conduct proscribed by a safety rule. A reckless disregard ~ for the safety of other players cannot be excused. Id. at 215 (emphasis added). The Nabozny court recognized the important distinction between violations of rules which are designed to promote organized play and those safety rules which are designed to protect participants from serious injury. Id. at 215. Section 50 of the Restatement of To~ts, Second concerns apparent consent and riot legal duty. Nevertheless, the explanation

15 - 9 - in comment b to 50 is relevant to the concept of a legal duty not to violate safety rules. The comment states that participation in a game "does not manifest consent to contacts which are prohibited by rules or usages of the game if such rules or usages are designed to protect the participants and not merely to secure the better playing of the game as a test of skill." Restatement of Torts, Second, 50, comment b at 86. In a case which was based on a theory of negligence.rather than reckless misconduct 1 the Court of Appeal of Louisiana held that an amateur softball player had a duty to play softball according to the rules, and that the duty was breached when the defendant injured another player in violation of the rules. Bourque v. Duplechin, 331 So. 2d 40, 42 (La. App. 1976). In Hackbart, the district court judge based the decision on his finding that in cases involving professional football it would be unreasonable to hold that one player has a duty of care for the safety of others. Hackbart v. Cincinnati Bengals, Inc., 435 F. Supp. 352 (D. Colo. 1977). Presumably the reasoning of the lower court in Hackb;irt is the basis for the appellants' proposed jury instruction. The district court's decision in Hackbart, however, has been widely criticized and was unanimously overturned by the Court of Appeals. See Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (loth Cir.), cert. denied 444 U.S. 931 (1979) {reverslii.qg dlistr±ct court decision); Comment, Torts-:--Civil Liability of Athletes--Professional Football Player May Have Claim For Injuries Intentionally Inflicted During Football Game. Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (loth Cir. 1979)," 84 Dick. L. Rev. 753 (19BO). To have included the jury instruction dealing with no legal duty in a

16 professional football game would have been to disregard treatises and case law, and to permit dangerous and unreasonable behavior against all public policy. Judge Miller was correct to deny the instruction. b. Appellants' instruction requiring a finding of an intentional act was incorrect. Instruction B submitted by the appellants would have required the showing of an intentional act. B). (Appendix, Instruction Section 500 of the Restatement of Torts, Second clearly distinguishes between intentional and reckless misconduct. person engages in reckless misconduct if he knows or should know "that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless. However, a strong probability is a different thing from the substantial certainty without which he cannot be said to intend the harm in which his act results." Res-tatement of Torts, Second 500, comment f at 590. The appellees' suit is based on the theory of reckless misconduct and not on an intentional tort. To include instructions on intentional torts would have been to place burdens on the appellee to prove a tort not charged in his suit. See generally, Hackbart v. Cincinnati Bengals, Inc., 601 F.2d at 524. The trial court judge was correct to deny instruction B. 3. The trial judge was correct to deny the appellants' instructions on assumption of the risk. The appellants requested a jury instruction on assumption of the risk by Greenburg. (Appendix, Instruction E). Assumption of the risk is discussed in ~e Restatement of Torts, Second A S 496. Assumption of the risk may be a defense in a reckless

17 misconduct action, whereas consent or contributory negligence would be irrelevant. Id., 496A at Inorder to have assumed the risk, Greenburg would have had to know of the existence of the risk and appreciate its unreasonable character. Restatement of Torts, Second 4960 at 574. By playing professional football, an admittedly violent sport, James Greenburg assumed l.the risk for injuries resulting from acts committed within the rules of the game. See Dudley v. William Penn College, 219 N.W.2d 484, 486 (Iowa 1974); Toone v. Adams, 137 S.E.2d 132, 137 (N.C. 1964). However, policy requires a finding that a player does not assume the risk of injuries resulting from violations of the rules. See Nabozny v. Barnhill, 31 Ill. App. 3d 212, (Ill. App. 1975). As the Louisiana Court of Appeal stated in Bourque v. Duplechin: "A participant does not assume the risk of injury from fellow players acting in an unexpected or unsportsmanlike way with a reckless lack of concern for others participating." Bourque v. Duplechin, 331 So. 2d 40, 42 (La. App. 1976). As Greenburg ran down the sideline, he had every expectation that Watkins would push him two feet out of bounds to stop the play. A tackle was unnecessary; the face-mask violation which Watkins committed was unexpected and unreasonable. The act and the subsequent injury were not risks which Greenburg can be said to have assumed by playing football with the Milford Macks in the Super Game. Judge Miller properly exercised her discretion in denying the appellants instruction on assumption of the risk. B. The Trial Court Judge Correctly Instructed The Jury Regarding Vicarious Liability.

18 The trial court judge instructed the jury that James Greenburg had the burden of establishing certain elements of a relationship to show that the Stamford Sox, Inc. was vicariously liable for Watkins' tort. The instruction required a showing that (1) Watkins was an employee of the Stamford Sox, Inc., (2) that Watkins' conduct was reckless or intentional, (3) that Watkins' conduct proximately caused Greenburg's injury, and (4) that the injury to Greenburg resulted from conduct arising out of the employment. (Appendix 1 Instruction 2). Judge Miller refused to grant an instruction stating that the Stamford Sox, Inc. was not vicariously liable if Watkins acted intentionally. (Appendix, Instruction C) 1. The instructions given on vicarious liability were proper. A principal may be held liable for an agent's tort which is committed in the scope of the agent's employment. Restatement of A~ency,2d 219,228 The Stamford Sox, Inc. would be vicariously liable for their agent's tort whether the act was intentional or reckless misconduct. The Instruction D which the Stamford Sox, Inc. suggested includes the language "scope of his employment" as opposed to "arising out of the employment". (Appendix, compare Instructions D & 2). Instruction D included the provision that the employer is not liable for acts which the employee does not perform for the employer's benefit. Such an instruction would have misled the jury. An employer is vicariously liable for the torts of his employee who acted within the scope of his employment "even though the principal does not authorize 1 ratify 7 participate in, or know of such misconduct 1 or forbade or disapproved of the agent's wrongful

19 act.. " 58 Am. Jur. 2d, Negligence 458. Clearly, the act does not have to be required by or performed for the direct benefit of the employer for employer to be held vicariously liable. The definition of "scope of employment" found in proposed instruction D(3) would unreasonably limit the imposition of vicarious liability. The actual instruction given to the jury in instruction 2 more clearly represented the law on vicarious liability. 2. The judge properly denied Instruction C submitted by the Stamford Sox, Inc. on vicarious liability. Instruction C stated that the Stamford Sox, Inc. would not be vicariously liable if Watkins' act was intentional. (Appendix, Instruction C). The instruction would be incorrect since a principal can be liable for an agent's intentional acts arising out of his employment. Instruction C would contradict either instruction 2 or instruction D. Since Greenburg's action was based on reckless misconduct and not on an intentional tort theory, the proposed instruction C would have been inappropriate and a misstatement of the applicable law. Judge Miller was correct to deny the proposed instruction. II. DEBRA GREENBURG WAS ENTITLED TO RECOVERY FOR LOSS OF CONSORTIUM AS THE DE FACTO WIFE OF JAMES GREENBURG, AND THE DISTRICT COURT AWARDED APPROPRIATE DAMAGES. A. The Lower Court Did Not Err In Its Ruling That Debra Greenburg Had A Cause Of Action For Loss Of Consortium. 1. Allowing a de facto spouse to have a cause of action is consistent with the law governing recovery for loss of consortium. The common law tort of loss of consortium originated as a means of compensating the husband for tortious loss of the wife's

20 ability to provide required services. See Hyde v. Scyssor, 79 Eng. Rep. 462 (K.B. 1620). As the legal status of the wife as the inferior servant of the husband changed, the basis of the husband's recovery evolved. Eventually, the husband's cause of action centered on the husband's right to be compensated where the tortious action of another caused a diminution in the wife's ability to provide services, companionship, affection, and sexual relations. Ossenfort v. Associated Milk Producers, Inc., 254 N.W.2d 672, 685 (Minn. 1977); Ballard v. Lumbermen's Mutual Casualty Co., 33 Wis. 2d 601, 148 N.W.2d 65, 72 (1967). Since recovery for loss of consortium grew out of the husband's proprietary interest in the wife's services, courts originally refused to allow a wife to recover for tortious loss of the husband's consortium. W. Prosser, Handbook of the Law of Torts 894 (4th ed. 1971). When judicial emphasis shifted from compensation for a proprietary interest to compensation for the inherent benefits that normally arise from the marital relationship, courts began to recognize the inconsistency in disallowing a wife's claim for loss of consortium. Hitaffer v. Argonne Co., 183 F.2d 811, 815 (D.C. Cir. 1950), cert. denied, 340 U.S. 852 (1950). A wife's loss of her husband's services, companionship, affection, and sexual relations is just as devastating as a similar loss by the husband. Id. at 816; Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 239 N.E.2d 897, 900 (1968). The Millington court justified its ' expansion of the loss of consortium doctrine by stating The policy of modern tort law has been to expand tort liability 'in the just effort to afford decent compensatory measure to those injured by the wrongful conduct of others' 'IThe common

21 law] is a living law which responds to the surging reality of changing conditions.. Id. at 902, 903. See Hitaffer v. Argonne Co., 183 F.2d at 815 (tortfeasor should be liable whe~er negligent act produces an injury); Ekalo v. Constructive Services Corp., 46 N.J. 82, 215 A.2d 1, 7-8 (1965) (compensatory nature of tort). The compensatory nature of a loss of consortium action is consistent with other torts in which a plaintiff can seek compensatory damages from a defendant for tortious injury to another if the injury has caused damage to the plaintiff. See Jones v. Waterman s.s. Corp., 155 F.2d 992, (3d Cir. 1946) (employer's cause of action for negligent injury to employee); Lucas v. Hamm, 56 Cal. 2d 583, 364 P.2d 685, 688, 15 Cal. Rptr. 821, 824 (1961) (beneficiaries under will can bring action against attorney for negligent drafting), cert. denied U.S. 987 (1962). By allowing Debra Greenburg to proceed with her claim for loss of consortium, the lower court furthered the compensatory purposes behind the law of torts in general and the tort of loss of consortium in particular. When Mr. Watkins injured Mr. Greenburg, the Greenburgs had been living together in conjugal bliss for seven yers. They raised two children, maintained a home, and jointly contributed heavily to the Milford community. In short, the plaintiffs were married in every sense but the legal sense. At the time that Harold Watkins brought an abrupt end to the active sports and civic career of James Greenburg, Mr. Watkins also destroyed a significant part of Mrs. Greenburg's life. On January the bliss in the Greenburg's conjugal relationship vanished. After January 16, 1977, Mrs. Greenburg

22 could no longer look to her husband for help in raising their children, maintaining the house, or overcoming the innumerable crises that inevitably arise in evayday life. Her right to rely on her husband for sexual satisfaction has been totally abrogated. The quality of Mrs. Greenburg's life was devastatingly diminished by Mr. Watkins' reckless misconduct in To deny Mrs. Greenburg recovery for this loss simply because her relationship with Mr. Greenburg was a de facto marriage rather than a de jure marriage is inconsistent with the compensatory nature of the loss of consortiurn. Denial of Mrs. Greenburg's claim because of relationship did not have the benefit of clergy is as illogical as early judicial disfavor toward the extension of loss of consortium liability to a wife. The goal of the law of torts is to require a tortfeasor to compensate those who he wrongfully injures. To achieve that goal, the lower court rightfully granted Debra Greenburg standing to prove the injuries she sustained from Mr. Watkins' wrongful activity. 2. Allowing a cause of action for loss of consortium does not pose practical or administrative problems. Most courts that have ruled that a legally recognized marriage is a prerequisite to recovery for loss of consortium have reached this conclusion without discussion. Bulloch v. United States, 487 F. Supp. 1078, 1079 (D.N.J. 1980) (citing Domany v. Otis Elevator Co.J 369 F.2d 604 (6th Cir. 1966); Cooper v. Lish, 318 F.2d 262 (D.C. Cir. 1963); DeVito v. Hoffman, 199 F.2d 468 (D.C. Cir. 1952)). Those courts that have given reasons for requiring marriage have cited the need to "draw a line somewhere" and the possibility that not requiring a legally recognized marriage would

23 inordinately expand the pool of possible plaintiffs. See Tremblay v. Carter, 390 So. 2d 816, 818 (Fla. 1980); Sawyer v. Bailey, 413 A.2d 165, (Me. Sup. Jud. Ct. 1980). Both judicial concerns are groundless. a. "Drawing the line" for loss of consortium claims at marriage would be illogical. The need of some courts to have neatly drawn lines to delineate the group that is eligible to seek recovery for a tort does not lend itself to the tort of loss of consortium. Such a line is both under-inclusive and over-inclusive. An arbitrary requirement of marriage automatically strips 2.7 million cohabitating citizens in the United States of the right to seek redress for damages caused through tortious injury to their de facto spouse. See Bulloch v. United States, 487 F. Supp. 1078, Cohabitating couples are deprived of any recovery for loss of consortium regardless of the degree of their commitments to each other, the longevity of their relationship, or the level of devastation that such a result may have on their lives. Conversely, limiting recovery to married couples assumes that the existence of a marriage certificate establishes some minimum level of consortium within the relationship. In fact, some courts have stated that the existence of a legally recognized marriage creates a presumption that injury to one spouse causes damage to the coupl~s consortium. See Metropolitan Steel-Railroad v. Johnson, 91 Ga. 466, , 18 S.E. 816, 817 (1893); Bedillion v. Frazee, 408 Pa , 183 A.2d 341, 345 (1962). In light of the significant number of couples who are separated without divorce or whose marriages are destined to deteriorate until

24 mercifully ended by divorce, a recovery based on loss of con-., sortium is an injustice. In sum, using marriage as the prerequisite for standing to recover for loss of consortium is not consistent with the purpose behind the tort. Of course, just as the existence of marriage should not create the presumption of consortium, the mere fact that a couple is cohabitating should not establish a right of recovery following a tortious injury to the other partner. The fact finder in each case has ample ability to examine the evidence and determine the existence of a conjugal relationship and the amount of damage to that relationship. Bulloch v. United States, 487 F. Supp. 1078, 1088 (D.N.J. 1980). b. Allowing a de facto spouse to have a cause of action does not inordinately expand the potential liability for loss of consortium. Although 2.7 million unmarried people in the United States currently cohabitate, that figure amounts to only 3% of the total number of married people. Bulloch v. United States, 487 F. Supp. 1078, 1086 (D.N.J. 1980). Furthermore, the 2.7 million figure would shrink significantly if reduced by the number of cohabitational relationships that are not serious enough to create recognizable consortium interests were culled from the ranks. Therefore, the inclusion of cohabitating but unmarried couples in the pool of potential plaintiffs in loss of consortium actions does not drastically expand the potential liability for that tort. 3. Allowing a de facto spouse to have a cause of action is consistent with current societal and legal trends. The number of unmarried couples increased eight-fold from 1960 to 1970 and another two-fold from 1970 to Note,

25 Property Rights of Nonmarital Partners in Meretricious Cohabitation, 13 N.E. L. Rev. 453, 454 n.4 (1978); United States Bureau of the Census, Persons By Family Characteristics, table 11 (1970). The overwhelming increase in cohabitation in the past few years has had a substantial effect on the evolution of the common law. Kazin v. Kazin, 81 N.J. 85, 94, 405 A.2d 360, 365 (1979). A judicial trend toward recognition and acceptance of cohabitation as an alternative to marriage has developed in the past decade. See Marvin v. Marvin, 18 Cal. 3d 660, 684, 557 P.2d 106, , 134 Cal. Rptr. 815, (1976) (court should use contract theory to achieve a fair distribution of cohabitational property); West v. Barton-Malow Co., 394 Mich. 334, 340, 230 N.W.2d 545, 548 (1979) (de facto spouse qualifies as dependent under workmen's compensation statute); State v. Saunders, 75 N.J. 200, , 381 A.2d 333, 334 (1977) (state fornication statute found to be unconstitutional invasion of privacy). The Marvin court cited "the prevalence of nonmarital relationships in modern society and the social acceptance of them" as requiring a change in judicial reasoning. 18 Cal. 3d at 683, 557 P.2d at 122, 134 Ca. Rptr. at 831. The same factors that have operated to cause judicial readjustment in other areas require this court to adopt the progressive and equitable attitude of the lower court toward the standing of a de facto spouse to bring an action for loss of consortium. B. The Court Of Appeals Should Affirm The Measure Of Damages Awarded To Debra Greenburg. 1. The damages awarded to Debra Greenburg were not excessive. An appellate court is at a distinct disadvantage when

26 reviewing a jury's award of damages. On appeal, the court cannot observe the demeanor of witnesses or absorb the nuances that the trial setting produces. As a result, a court of appeals should review the amount of damages awarded by a jury only in those rare situations where the court concludes that the jury's decision represents a "plain injustice" or a "monstrous" or "shocking" result. Morrow v. Greyhound Lines, Inc., 541 F.2d 713, 720 (8th Cir. 1976). In those rare cases that require review, the appellate court should disturb the trial court's award of damages only where the award is a clear abuse of discretion. Moteberg v. Johnson, 297 Minn. 28,, 210 N.W.2d 27, 31 (1973). In determining whether a verdict is so excessive enough to signal an abuse of discretion, the court of appeals should consider the following factors: (1) the nature and extent of plaintiff's injuries, (2) the permanence of plaintiff's injuries, (3) plaintiff's age, (4) examination of cases involving awards for similar injuries (5) due regard for economic factor (inflation, etc.) and (6) an awareness of the fact that the jury had a superior opportunity to appraise plaintiff's injuries. Blond v. Overesch, 527 S.W.2d 663, 672 (Mo. Ct. App. 1975). See also Scoville v. Missouri Pacific R. Co., 458 F.2d 639, 648 (8th Cir. 1972). In applying these factors to an individual case, an appellate court must examine the evidence in a light most favorable to the plaintiff. Moteberg v. Johnson, 297 Minn. at I 210 N.W.2d at 31; Ballard v. Lumbermen's Mutual Casualty Co., 33 Wis. ) 2d 601,, 148 N.W.2d 65, 68 (1967). \ The evidence offered in the court below undeniably shows that the damages awarded to Debra Greenburg represent fair

27 compensation for her loss of consortium. The injuries sustained by Mrs. Greenburg are nothing short of catastrophic. Before Mr. Greenburg's injury, the Greenburgs had an enviable marriage. At that time, Debra could reasonably expect to enjoy many years of happiness with James; raising their children and enjoying their place in the community. Mrs. Greenburg's life changed drastically on January 16, The man she relied on so heavily prior to 1977 is now little more than a vegetable. She can no longer turn to him for aid in maintaining their horne and raising their children. He is helpless when she needs comfort or sexual satisfaction. Yet she is morally bound to give him aid, comfort and support for the rest of his life. The permanency of his condition only increases the mental and physical burden that she must bear. At the time of the accident, Debra could expect her husband to live for another 41 years. United States Department of Commerce, Bureau of the Census, Pocket Data Book 63 (1973). Those years during which she will be tied to a man who can offer little in return, will span the prime of Mrs. Greenburg's life. These facts underscore the fairness of the jury's verdict. Other cases involving similar facts illustrate the reasonableness of the damages awarded to Mrs. Greenburg. In 1977, the Supreme Court of Minnesota upheld a jury verdict awarding a plaintiff $500,000 for loss of consortium. Ossenfort v. Associated Milk Producers, 254 N.W.2d 672, 686 (1977). In Ossenfort, an injury, which resulted in quadriplegia for the plaintiff's spouse, stunted an otherwise happy marriage. Id. at Similarly, in Griffin v. United.states, 500 F.2d 1059 (3d Cir. 1974), the

28 court of appeals affirmed damages of $300,000 awarded to the husband of a quadriplegic for loss of consortium. Id. at When the verdicts of these cases are adjusted for the rampant inflation that controls today's economy, the damages awarded to Debra Greenburg appear reasonable. See also Hysell v. Iowa Public Service Co., 534 F.2d 775, 786 (8th Cir. 1976) (defendant chose not to appeal $200,000 loss of consortium award even though plaintiff was still ambulatory and could drive specially equipped automobile) In light of the facts surrounding the Greenburg case and verdicts in similar cases 1 this court should be unwilling to rule that the verdict in favor of Mrs. Greenburg is sufficiently monstrous to reverse the lower court. 2. No portion of the damages awarded to Mrs. Greenburg represent a double recovery for the appellees. Some courts have cited the risk of double recovery as a problem inherent in allowing recovery for loss of consortium. See Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382, , 525 P.2d 669, , 115 Cal. Rptr. 765, (1974). Ordinarily, double recovery manifests itself in the loss of consortium context when a spouse is allowed to recover the value of nursing services provided to the other spouse o~ lost financial support that the other spouse no longer is able to provide. See Kotsiris v. Ling, 451 S.W.2d 411, 412 (Ky. Ct. App. 1970). Since these elements of damage are recoverable by the physicially injured spouse in his own right 1 a spouse should not be entitled to include them in her loss of consortium claim. Id. See Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d at 404, 525 P.2d at 6B3, 115 Cal. Rptr. at 779. The damages awarded to Debra Greenburg, however, contained

29 no elements that James Greenburg could have recovered by his own right. Judge Miller's instruction to the jury concerning damages for loss of consortium stated that an award should compensate Mrs. Greenburg for the deprivation of "the society, aid, comfort, companionship, and sexual services" of her husband. Jury Instruction 3(a). A damage award comprised of the components enumerated in the jury instruction would contain no elements of double recovery. Absent any showing by the defendants that the verdict includes an award for injuries other than those enumerated in the jury instruction, this court must deny the defendant's claim of double recovery. Manning v. Jones, 349 F.2d 992, 995 (8th Cir. 1965). I ' I 3. The district court was correct in denying the appellant's proposed jury instruction regarding marital discord. The proper measure of damage in a loss of consortium is an amount that will compensate the spouse of the physically injured party for the loss of society, aid, comfort, companionship, and sexual services caused by the tortious conduct. Aretz v. United, a f f'~, 604 F.2d 417 (5th Cir. 1979) States, 456 F. Supp. 397, 402 (S.D. Ga. 1978)~ See Kailimai v. Firestone Tire & Rubber Co., 87 Mich. App. 144, 153, 273 N.W.2d 906, 907 (Mich. Ct. App. 1978). The jury should compute the loss by considering evidence of the relationship between the couple immediately before and after the injury. Washington v. Jones, 386 Mich. 466, 472, 192 N.W.2d 234, 237 (1971); Christman v. Bailey, 38 A.D.2d 773, 774, 327 N.Y.S.2d 966, 967 (1972). In instructing the jury about damages for loss of consortium the trial court need not give elaborate instructions, but the instruction should set out the basic elements the jury should consider. Hightower v. Landrum, 109 Ga. App. 510,, 136 S.E.2d 425, 429 (Ga. Ct.

30 App. 1964). The lower court properly admitted all evidence that would enlighten the jury about the Greenburg's relationship, including evidence concerning marital discord. Judge Miller's instruction to the jury concerning damages for loss of consortium stated that the jury should only award an amount of damages that would fully and fairly compensate Mrs. Greenburg for the loss of society, aid, comfort, companionship, and sexual services directly caused by the tortious conduct of the defendants. The instruction, as given, provided a clear and correct statement of the law governing damages in a loss of consortium action. The instruction proposed by the defendants, however, would have required the jury to deduct a "marital discord" factor after arriving at computing the value of lost consortium. Since the jury already would have taken marital discord into account in computing damages under Judge Miller's instructions, acceptance of the defendant's instruction would have resulted in a double deduction for any pre-existing marital discord. Presumably the purpose behind the defendant's proposed instruction was to limit the recovery to damages proximately caused by the tort. Judge effectively accomplished this result by instructing the jury to limit the verdict to the loss that "directly resulted from the tortious conduct." CONCLUSION It is respectfully submitted that the judgment of the District Court should be affirmed. Counsel for the Appellees

31 A-1 APPENDIX 1. Judge Miller charged the jury with the following instructions on reckless misconduct: l.(a) The plaintiff has the burden of proving by the greater weight of the evidence that Mr. Watkins was reckless and that Mr. Watkins' recklessness was the proximate cause of the accident and any of the injuries to Mrs. Greenburg. (b) Reckless conduct is acting with a reckless indifference to the consequences of another person when the defendant is aware of his conduct and is also aware, from his knowledge of existing circumstances and conditions, that his conduct would probably result in injury to another. 2. (a) The plaintiff has the burden of proving by the greater weight of the evidence that Mr. Watkins was the employee of Stamford Sox, Inc., that Mr. Watkins' conduct was reckless or intentional, that this reckless or intentional conduct proximately caused injury to the plaintiff, and that this injury resulted from conduct arising out of the employment. (b) Defendant Stamford Sox, Inc. is liable for all damages caused by the reckless or intentional conduct of Mr. Watkins which arose out of Mr. Watkins' employment as a professional football player for the Stamford Sox. (c) Conduct which arises out of employment is any conduct which stems from Mr. Watkins' job as a professional football player for the Stamford Sox. (d) An intentional act is one which is committed when the defendant desires to cause consequences of his act or he believes that the consequences are substantially certain to result from his act. (e) Reckless conduct is acting with a reckless indifference to the consequences to another person When the de endant is aware of his conduct and is also aware 1 from his knowledge of existing circumstances and conditions, that his conduct would probably result in injury to another Appellants submitted the following alternative instructions concerning the legal duty, both of which Judge Miller refused: A. If you find Mr. Watkins' conduct occurred during the normal course of a professional football game, you must find your verdict for both of the defendants. B. (1) The plaintiff has the burden of proving by the greater weight of the evidence that Mr. Watkins acted intentionally and that Mr. Watkins' intentional act was the proximate cause of the

32 A-2 injuries to Mr. Greenburg. (2) An intentional act is one which is committed when the defendant desires to cause consequences of his act or he believes that the consequences are substantially certain to result from his act. Judge Miller also refused to give either of the following alternative instructions which the Stamford Sox requested concerning vicarious liability: c. If you find that Mr. Watkins acted intentionally in his actions toward Mr. Greenburg, you must find your verdict for Stamford Sox, Inc. D. (1) The plaintiff has the burden of proving by the greater weight of the evidence that Mr. Watkins was the employee of Stamford Sox, Inc., that Mr. Watkins' conduct was reckless or intentional, that this reckless or intentional conduct proximately caused damage to the plaintiff, and that Mr. Watkins was acting within the scope of his employment. (2) Stamford Sox, Inc. is liable for all damages caused by the reckless or intentional conduct of Mr. Watkins while acting within the scope of his employment as a professional football player. (3) An act is within the scope of employment if it is incidental to the Stamford Sox' business and is done to further the Stamford Sox' business interest. If Mr. Watkins departed so far from his duties that his acts are no longer for the Stamford Sox' benefit or that he did not intend his acts to benefit the Stamford Sox, then his acts are not within the scope of employment. (4) An intentional act is one which is committed when the defendant desires to cause consequences of his act or he believes that the consequences are substantially certain to result from his act. (5) Reckless conduct is acting with a reckless indifference to the consequences to another person when the defendant is aware of his conduct and is also aware, f~om his knowledge of existing circumstances and conditions, that his conduct would probably result in injury to another. Appellants requested the following instruction concerning assumption of the risk which Judge Miller refused: E. (1) Where the defendant claims assumption of the risk as a defense, he has the burden of proving by the greater weight of the evidence that the plaintiff fully appreciated the nature and the extent of a known danger; that the plaintiff voluntarily exposed himself to it; and that the plaintiff was injured as a result of the danger assumed. Assumption of the risk may be shown by the defendant's evidence or by the plaintiff's evidence.

33 A-3 (2) If you find by the greater weight of the evidence that Mr. Greenburg fully understood the nature and extent of a known danger, and if he voluntarily exposed himself to it, he assumed the risk of injuring himself from that danger. The plaintiff cannot recover for injuries that proximately resulted from assuming the risk of a known danger. Judge Miller, over appellants' objection, charged the jury with the following instruction regarding loss of consortium: 3.(a) If you find defendant Watkins liable to plaintiff James Greenburg for the injury he sustained, you must then consider the claim of James Greenburg's wife, Debra Greenburg, for loss of her husband's consortium. (b) Loss of consortium involves a legal claim by one party for deprivation of the soc1ety, aid, comfort, companionship, and sexual services of another party where the deprivation or loss directly resulted from the tortious conduct of the defendant. This claim is available to a spouse who alleges loss of her spouse's consortium. This claim is also available to a party who suffers the elements of loss of consortium as a lawful spouse would. (c) If you find that plaintiff Debra Greenburg was deprived of the society, aid, comfort, companionship, and sexual services of co-plaintiff James Greenburg, that she was deprived of these as a lawful spouse would have been, and that this deprivation or loss was a result of the tortious conduct of the defendant, you must award her damages for such sum as will fully and fair:ly compensate her. The vicarious liability instruction given in ISSUE I was ') also given for ISSUE II, again over appellants' objection. Judge Miller also refused to give the following instruction proposed by the appellant: E. If you find, by the greater weight of the evidence, that marital discord between the plaintiff existed prior to the injury and you find that such discord was the sole cause of Mrs. Greenburg's loss of consortium, then you must deny her any recovery. If, on the other hand, you find that discord existed which contributed to but was not the sole cause of the loss of consortium, you must diminish her recovery in proportion to the amount of the discord.