Newark judge finds lesbian can make consortium claim in harassment case
Following in the path blazed by a tax court judge earlier this year, another New Jersey trial judge has interpreted the state’s domestic partnership statute to go beyond the rights specified when he upheld the right of a domestic partner to sue for “loss of consortium,” a legal vehicle spouses have for making claims related to suffering or injury their partner endures.
The May 11 ruling by Judge James S. Rothschild of Superior Court in Newark rejected a motion to dismiss a claim that has been made by Judith Peterson, the domestic partner of Linda Henry, for injuries Peterson sustained as a result of the alleged workplace harassment of Henry.
As in the tax court decision, which found that registered domestic partners were entitled to the same municipal real estate tax status as married couples, Rothschild found that partners who have registered with the state are generally entitled to be recognized as spouses whenever they are claiming a right less significant than those specified in the domestic partnership law.
Former Gov. James McGreevey, who resigned late last year after acknowledging that he was gay and had carried on an extramarital relationship with a man he hired for a state post, signed the domestic partnership law in January 2004.
Unlike California’s even more recent domestic partnership statute, which provides that registered partners enjoy virtually all the rights and benefits of legal spouses, New Jersey’s law is on its face more limited, providing that “persons in domestic partnerships should be entitled to certain rights and benefits that are accorded to married couples” including protection against discrimination based on their partnership status in employment, housing, credit, hospital visitation, medical decision-making, state income tax provisions and inheritance.
The statute also states that “the obligations that two people have to each other as a result of creating a domestic partnership shall be limited to the provisions of the act, and those provisions shall not diminish any right granted under any other provision of law.”
Rothschild does not spell out the basis of Linda Henry’s workplace harassment claim, because that was not necessary to rule on the motion that Clara Maass Medical Center, Henry’s employer, made to dismiss Judith Peterson’s “loss of consortium” claim.
Such a claim is based on the common law right of a spouse to compensation for the loss she suffers when somebody injures her spouse. The legal basis for such claims came from the traditional concept that a marital couple was viewed as a single legal entity, so that an injury to one is an injury to both, and in its more contemporary justification is grounded in the realization that married couples are emotionally, financially and functionally interdependent, so that when one partner is injured, the other may sustain losses that should be compensated by the party who inflicted the injury.
Traditionally, courts have only allowed a consortium claim for a marital partner—even a fiancé could not bring such a lawsuit. But Rothschild noted that New Jersey courts have in recent decades loosened the test for standing to bring related claims for emotional injury that a fiancé might suffer upon observing an injury inflicted on their intended spouse, and reasoned by analogy that registered domestic partners could plausibly assert similar claims.
Most significantly, Rothschild found, as had the tax court in the prior case, that by using the word “including” before listing the rights of domestic partners, the Legislature made it possible to argue that the rights listed in the partnership law were not exclusive, but rather more illustrative. Applying a well-established legal principle that “the greater includes the lesser,” he concluded that the right to sue for loss of consortium was less significant than the rights listed in the statute, and thus could be seen as one of those included by implication. He cited to the prior tax ruling and quoted it extensively.
“While the Legislature stated that it did not want to give domestic partners the right to sue for alimony and/or child support—which would be changes of major consequence—there is nothing in the Act or Committee Statement to suggest that the Legislature did not support the recent liberalization of tort law which would extend to those people who are not married the right, in limited circumstances, to sue for loss of consortium,” Rothschild wrote.
One problem Rothschild faced, however, was that Henry’s alleged harassment occurred prior to the passage of the domestic partnership law. Here, the judge again followed the approach of the tax court, concluding that Henry could seek a remedy for the continuing injury stemming from that harassment to the extent the injury continued past the date when the couple registered their relationship.
This ruling, contained in a letter to the attorneys rather than a formally published legal opinion, and being only a trial court ruling, does not create binding precedent, but taken together with the prior tax court ruling is part of a trend toward broad judicial interpretation of the state’s domestic partnership law that may be useful in future cases.
The tax court ruling was also only a trial court ruling, but its availability proved important to Peterson in defeating the employer’s motion to dismiss her claim. To win her claim on the merits, Peterson will first have to depend on Henry winning her harassment claim, and then will have to prove her own injury stemming from the harm to Henry.