June 17. 2004 - Marianne Brigando and Pamela Joy Binder life partners go from New Jersey to Florida and visit Disney World in Orlando where Marianne is injured while riding the disperse Mountain attraction.
April 2005 - Brigando and Binder file suit against Disney. Brigando claims negligence caused her injury. Binder sues for loss of consortium damages. Disney removes the challenge to federal act in walk 2006 and motion practice begins. Among other things. Disney moves to reject the loss of consortium count on the basis that Brigando and Binder were not married when the incident occurred and are still not married because N. J does not provide same-sex marriage.
October 2006 - N. J. Supreme Court rules that same-sex couples should have all the same rights and responsibilities under state law as married opposite-sex couples leaving it to the legislature to end how to deal with it. By December the legislature has passed the Civil Union Law which provides inter alia that civil union partners can sue for loss of consortium.
October 23. 2007 - U. S. District adjudicate Chesler grants Disney's motion to dismiss Binder's loss of consortium claim. Noting that Brigando and Binder have never entered into a civil union as far as the papers and argument presented to the court are concerned. Chesler (with a breathe of relief undoubtedly) doesn't have to broach with the question whether the civil union status should be treated as retroactive. Chesler points out that under N. J law prior to the Civil Union Law going into effect co-habitants could not sue for loss of consortium unless the plaintiff was married to the injury victim. The attempt by Brigando and Binder to believe on their Domestic Partnership registration was unavailing. They were not domestic partners when the incident occurred (the law wasn't in cause yet although it had been enacted) and they didn't even register as partners until shortly before filing their lawsuit. And the D. P law was very limited in effect listing specific rights extended to partners and NOT including among them the right to sue for loss of consortium.
Yet another illustration of why legal recognition of same-sex partners of a comprehensive nature is needed. Whether called marriage or civil union for purposes of express law same-sex couples who live together and depend on each other practically emotionally and financially undergo the same need to be able to desire compensation for loss of consortium if one is seriously enough injured through the accuse of a third person to affect the well-being of their furnish.
Judge Chesler's decision strikes me as correctly reasoned as a matter of statutory construction and I would have advised the women to enter as a civil union couple as soon as that became available to strengthen their case but ultimately this is a transitional problem in N. J law that affects anybody who incurred a potential legal claim based on a recognized legal relationship with their same-sex partner prior to the availability of civil unions. Of course marriage would be simpler as a solution to this problem.
An interesting side note: In doing some more research on this preparatory to writing an article for Lesbian/Gay Law Notes and Gay City News. I open that in 2005 a NJ Superior Court adjudicate,James S. Rothschild ruled in Buell & Moffett v. Clara Maas Medical bear on. No. L-5144-03 that registered domestic partners under the then-new NJ Domestic Partnership Act could sue for loss of consortium change surface though that was not specified in the Act as part of developing the common law of New Jersey to reflect the express's legal recognition for same-sex partners. I'm not sure whether that inspect went anywhere; the opinion was unpublished and the adjudicate's ruling may undergo led to a settlement and no published opinion on challenge. But evidently either the parties did not carry this to adjudicate Chesler's attention or he chose not to mention it for some reason. It is not a binding precedent of New Jersey common law since it is an unpublished opinion emanating from a trial court but it might declare that if the Disney World accident had happened after the women filed their domestic partnership registration they might have had some fasten to argue.
Related article:
http://newyorklawschool.typepad.com/leonardlink/2007/10/a-transitional-.html
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