Surviving Spouse, Loss of Consortium In A Theme Park Personal Injury Case

roller coasterAfter her husband was seriously injured in a Florida theme park accident in 2006, a woman was named as a party in her husband’s lawsuit against the park, where she asserted loss of consortium.

Two years after the husband and wife filed a personal injury action, the husband died. Unfortunately, however, the widow failed to substitute herself as the personal representative in the claim within three months of his death, and the personal injury action was dismissed. The question before Florida’s Fifth District Court of Appeal in Randall v. Walt Disney World Co. was whether a loss of consortium claim could survive the death of the plaintiff – even if the rest of the claim had to be set aside. Ultimately, the Fifth District ruled that it does – in direct conflict with the ruling issued by Florida’s Third District Court of Appeal.

Our Miami personal injury attorneys know that the underlying issues of this case are especially timely as theme parks hit their peak with the number of vacationing summer visitors. Many injures that occur at theme parks happen when parks aren’t clear in communicating ride safety guidelines. While there are sometimes mechanical issues that contribute, operator error due to lack of training is sometimes cited as a factor in these incidents.

The law requires that safety instructions for park activities and rides are thorough and clearly conveyed to visitors. Further, parks need to make sure that their staff is thoroughly trained in proper operation of equipment as well as emergency response procedures, in case injuries do occur.

In the Randall case, the husband and wife visited a Florida theme park and the husband sustained injuries to his head and neck while on a roller coaster. The wife would later assert these injuries also contributed to his death several years later, though that was disputed by the defense. In addition to the personal injury lawsuit, the wife also sued for loss of consortium.

The loss of consortium issue is one that is applicable in many different types of personal injury and wrongful death cases – not just those involving theme parks. The term refers to the loss of services suffered by one spouse (or sometimes other dependent) as a result of injury or death to the other. While it can be filed within a personal injury claim, it is also considered a separate claim unto itself.

With the dismissal of the personal injury case, however, the core issue for the appellate court’s consideration at this time was whether or not the wife could press on with her loss of consortium claim when the primary personal injury action had been dismissed.

Citing the precedent established in the 1990 case of Taylor v. Orlando Clinic, the Fifth District indicated a loss of consortium claim may be allowed to continue unabated, even if the negligence personal injury action is dismissed due to the death of the original plaintiff. It conceded, however, that that ruling was in direct conflict with a separate Third District appellate court ruling which held that a claim for loss of consortium may not continue after the death of an injured spouse.

The Fifth District disagreed with the Third, stating that there cannot be a secondary cause of action without a primary cause of action, and it pointed to two supporting Florida’s Court of Appeal cases; one in which one spouse was allowed to pursue her own loss-of-consortium claim, even though the other spouse had already settled with the defendant, and anther, in which it was held that loss of consortium is a separate cause of action from the personal injury claim.

Therefore, the Fifth District in Randall affirmed the widow’s right to pursuit of damages against the theme park for injuries she suffered as a result of her husband’s injury.