Words matter. Use of the right words greases the wheels of commerce, justice and human relationships. Use of the wrong words, despite good intentions, can lead to broken business deals, lawsuits or a night on the couch.

The words used to create multi-word terms and phrases matter, too. The right phrase can promote a movement or idea: “Tort reform.” “Make America Great Again.” Or it can destroy one: “Defund the Police.”

Thus, the legal writer endeavors to use best efforts to select words that communicate the intended message. When, upon reflection or experience, the words we use do not adequately communicate what they are intended to communicate, they must be changed. This is especially true for legal concepts used in jury instructions.

For example, the term “proximate cause” is an unfortunate joinder of one perfectly good word (cause) and one silly word (proximate). The concept of proximate cause is a necessary part of tort law, but the label we give to the concept is horrible. Over the last 25 years, the courts of Tennessee (spurred forward by now retired Judge John Turnbull from Livingston) started relegating “proximate cause” to the ash heap of history, replacing it with the preferred label of “legal cause.” In 2021, the battle was (largely) won when Tennessee Supreme Court made it clear that the term “proximate cause” (not the doctrine, just the term) is obsolete.¹

There is yet another unfortunate legal term that needs to be re-examined: “loss of consortium” damages in wrongful death cases. Jordan v. Baptist Three Rivers Hospital,² was the first Tennessee decision to permit “consortium-type damages” as part of the “calculat[ion] of the pecuniary value of the deceased’s life.”³ The opinion explained that in death cases “loss of consortium consists of several elements, encompassing not only tangible services provided by a family member, but also intangible benefits each family member receives from the continued existence of other family members. Such benefits include attention, guidance, care, protection, training, companionship, cooperation, affection, love, and in the case of a spouse, sexual relations.”⁴ Both the courts and this author have referred to this type of loss as one of “loss of consortium,” regardless of the relationship between the decedent and party seeking or recovering the damages. ⁵

We erred in doing so. As historically and commonly understood among lawyers, “loss of consortium” includes the loss of or interference with the sexual relationship between married persons.⁶ It can only arise from an injury to or death of a married person.⁷ It cannot arise from a nonmartial relationship. But Jordan tells us that certain next-of-kin can also recover damages for the loss they experience from the death of a father, mother, child or sibling. It is simply wrong to refer to these losses as losses of consortium. They are losses of human companionship.⁸ And that is what the law should call them.

Now, what difference will it make to use the right words? The same difference it makes when we call animals that are dogs, “dogs” and those that are cats, “cats.” A dog is not a cat. A cat is not a dog. Just because both are animals does not mean that we can properly call one the other. Sure, the audience for our words might be able to figure out from other available information what we mean if we called a cat a dog or a dog a cat. Cats do not bark. Dogs do not meow. Et cetera. But why use a wrong term to describe a person, place, thing or concept when the right term is readily available? Why have the audience (read: the jury) thinking about what is probably meant by a given term rather than knowing what is meant upon hearing it?

So why would we repeat among ourselves, and more importantly, why do we tell jurors, the wrong term (loss of consortium) when we have the right term (loss of human companionship) readily available? It is not too late to get this right. This is what the law should be: in a wrongful death action, the statutory beneficiaries can make a claim for the loss of human companionship — the loss of attention, guidance, care, protection, training, cooperation, affection and love — resulting from the death of the decedent.⁹ And, if the deceased leaves behind a spouse, the loss of human companionship includes the loss of sexual relations.

It is just that simple. |||

JOHN A. DAY is a trial lawyer with offices in Brentwood, Murfreesboro and Nashville. He enjoys writing but knows any skill he has in this regard is based more on his ability to create volume and his efforts to put the cookies on the low shelf rather than his (limited) command of the English language. His newest book, Tennessee Wrongful Death Law, will be released in October 2022.

NOTES

1. Cotton v. Wilson, 576 S.W.3d 626, 638 (Tenn. 2021) (“The concept of ‘legal cause’ was formerly known as ‘proximate cause.’ It connotes a policy decision made by the judiciary to establish a boundary of legal liability and to deny liability for conduct that could otherwise be actionable.”) Unfortunately, added to this sentence was footnote 17: “The terms ‘legal cause’ and ‘proximate cause’ are synonymous, and we use them interchangeably for purposes of discussion.” Thus, for the near future, the words “proximate cause” will continue to be found from time to time in appellate court opinions. They should never appear in a jury charge.
2. 984 S.W.2d 593 (Tenn. 1999).
3. Id. at 601. The use of the phrase “consortium-type damages” tells the author that the court was aware that the use of “loss of consortium” to describe losses of next-of-kin in wrongful death cases was not ideal. In addition, the suggestion that we should more properly refer to the non-economic losses in Jordan is not a criticism of the Jordan court. The court was changing the law as it existed in Tennessee for 150 years. The use of a familiar but imprecise term facilitated the necessary change.
4. Id. at 602.
5. See, e.g., Hancock v. Chattanooga-Hamilton County Hosp. Authority, 54 S.W.3d 234 (Tenn. 2001) (discussing loss of filial consortium); Knowles v. State, 49 S.W.3d 330 (Tenn. Ct. App. 2001) (children bringing claim for death of parent can seek “loss of consortium” damages).
6. The author submits that the average juror has no idea what “loss of consortium” means.
7. See, e.g., Tenn. Code Ann. § 25-1-106 (“There shall exist in cases where such damages are proved by a spouse, a right to recover for loss of consortium.”) The author has previously expressed the opinion that one in a same-sex marriage has the same right to recover loss of consortium damages as one is a marriage between a man and a woman.
8. Indeed, the Jordan opinion uses this term: We further believe that the pecuniary value of a human life is a compound of many elements. An individual family member has value to others as part of a functioning social and economic unit. This value necessarily includes the value of mutual society and protection, i.e., human companionship. Human companionship has a definite, substantial, and ascertainable pecuniary value, and its loss forms a part of the value of the life we seek to ascertain.
Id. at 600.
9. By the way, “companionship” is one of the types of “noneconomic damages” addressed in the legislation creating an artificial limit on the amount of money that a judge or jury can award for human losses in tort cases. Tenn. Code Ann. § 29-39-101(2).