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Women’s Rights To Sue: Consortium, Horse Trading and Equal Rights

I. Consortium

“Equal rights” may not mean exactly what you think it does. As it applies to the trauma of responding to wrongful death or injury lawsuits, the idea of equal rights has changed radically.

Generally speaking, people regarding equal rights as a good thing. A chance to balance the scales of justice, so that one particular group is not favored over another. It’s an interesting fact that in North Carolina, for example, women’s equal rights have a deep history under state North Carolina constitutional law. Dating back to 1868, women were given specific rights under the North Carolina state constitution to own their own property outside of their husbands’ control.

Yet complications of defining women’s equal rights, so as to maintain court actions, especially in wrongful death, have a pretty odd historical background. Receiving (or having a wrongful death attorney protect) the right to sue can be regarded as a property interest, As a property right for women, there’s a natural overlap between constitutional rights for women, way back when… and the twists and turns of more recent legal arguments from 1900 to 1980, in North Carolina. One key indicator in sexual equality, frequently involved in injury and wrongful death cases, is “loss of consortium.”

• Loss of consortium: “services, sexual intercourse and general companionship”

Noting, first, that in 1980, the Supreme Court of North Carolina took a fresh look at whether not women could sue for a loss of consortium to an injured husband. The case involved a lawsuit by Mrs. Nicholson against Memorial Hospital. In 1980, the idea of equality between the sexes was clearly in sharper focus everywhere, often led by wrongful death attorneys. Before Mrs. Nicholson’s case was heard, neither husband nor wife had a right to sue for loss of consortium in this state. What was especially interesting is how husbands and wives had lost this important right in 1945.

II.  Women’s rights grow… Women’s rights go

It’s hard to explain why such changes can occur at certain times. It is certain that representing individual rights is usually advanced through the struggles of caring, competent trial and wrongful death attorneys.

Between 1868 and 1913, there were actually myriad improvements to women’s rights in regard to lawsuits and ability to be represented by their own trial attorneys. The Assembly in 1913 passed a law allowing the wife to sue for her own personal injuries. It’s worth noting that at that same time, a husband could clearly sue for loss of his wife’s consortium. Notably, as an experienced wrongful death attorney will point out, women had no right to appear in court to sue for loss of her husband’s consortium. This was explained in large part because of the restrictions on most women’s ability to go into court, or even a find a trial attorney willing to represent them. Then, in 1916, the question of women versus men’s rights to sue was dealt with directly. In that year, the North Carolina Supreme Court ruled that since a husband could sue for loss of a wife’s consortium, and this meant that the wife must have a similar right, “by virtue of logic and fairness.” But nine years later in the case of Highland versus Hanant – the Supreme Court reached backwards, and overruled the previous legal ability of a wife to sue. The case was based upon a horrific train crash, causing the death of a husband. During that case, a North Carolina trial court had actually awarded loss of consortium to the wife.

The Hanant court (1925) used four arguments, no doubt over the strenuous objection of the trial attorney, as to why women should not be allowed to sue for loss of consortium. Among the more telling reasons, Court said “the wife’s damages were too remote a consequence of a defendant’s negligent injury.” This suggested either a restrictive view on wrongful death cases or a concern about railway liability…or both. After 1925, amazingly, her husband was still allowed to sue for loss of consortium in North Carolina, even though the wife could not. The clock had turned back.

Now comes about the idea of equal, but equally unfair. Fast forward to 1945, and then the Supreme Court decided that this was unfair to allow only one spouse (the husband) to be able to sue for loss of consortium. Instead of expanding the right to the wife, the Supreme Court struck down the husband’s right to sue for loss of consortium too. That was the rule until 1980, when an enterprising and experienced Charlotte trial attorney decided it was time to shake Adam’s apple tree one more time.

III.   Sexy Is As Sexy Does: The Body of Law

The standards for what was allowed in public discourse – or even legal opinions for that matter – before 1980 was remarkably different than it is today. It’s easy to suspect that the idea of evaluating sex explicitly in court decisions was fairly taboo in pre-1940 America. Additionally, men predominated the pre-WWII workforce, and loss of consortium cases allowing women’s claims would be economically earth-shattering. The change in sexual mores alone may explain why the 1980 Supreme Court decision specifically included this following statement: “unquestionably, the society and companionship includes a sexual component.” There were two 1960 era cases, the first era of sexual liberty in America, that specifically mentioned this sexual component of consortium.

IV.  Fixing the Contradictions

A Charlotte wrongful death attorney recognizes that there’s a lot more to equality than equal mis-treatment under the law. So, one of the compelling arguments in the 1980 case was that loss of consortium was actually allowed in North Carolina: based on third-party interference with a marital relationship (such as adultery). It was this contradiction, which especially induced the Supreme Court to finally recognize the loss of consortium right, to let wife and husband to sue for lost consortium.


There’s much that’s hard to explain in analyzing the historic trends in court cases. The social morays of this century are radically different than any other time in American history. This rapid period of change calls for leaning on the expertise of a truly experienced trial or wrongful death attorney to navigate changes in social morays and legal justifications and purposes. Even in 1945, a society was beginning to change and move away from Puritan ideals of men and women’s relationships. Railroads assumed major importance in causing life-time injuries. It’s possible the impact of a major injury on the railroad caused a court to reconsider allowing any suits for consortium. The point is that society plays a role in how courts interpret legal rights.

It’s fairly safe to say that the 1980 North Carolina Supreme Court would almost surely have overruled the old 1925 Highland case regardless of the third-party consortium contradiction. But, this doesn’t underestimate the importance of caselaw applied “equally” for almost 40, years to limit rights to sue. Instead, it shows how working with a talented trial and wrongful death attorney helps introduce needed changes, to instances where the law may be technically equal, but unfair. This is the telling of a particular story…your story, by an experienced wrongful death attorney. If you have suffered the loss of intimate relations with your spouse or partner, consider reaching out to an experienced trial or wrongful death attorney for help. If you, a family member or a loved one have questions about a prior or recent accident, or involving related claims or your legal rights or hearings, please contact us.  You will speak with a wrongful death attorney who can best answer your questions about how your cases may be addressed.  There is never a fee for this initial consultation.

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