The opinion of the court was delivered by: ACKERMAN
This is a case arising from a scuba diving accident off the coast of Cape May, New Jersey, in which the plaintiff, David K. Bulloch, was injured. A complaint and libel in admiralty was filed, alleging several counts. This Court has jurisdiction under both the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680, and the Suits in Admiralty Act, 46 U.S.C. §§ 741 et seq., 742. The United States has moved pursuant to Federal Rule of Civil Procedure 12(b)(6) for dismissal of the Fifth Count of the complaint. This count seeks damages pursuant to the Federal Tort Claims Act for Edith F. Bulloch's loss of consortium. Because both the United States and the Bullochs have presented matters outside of the pleadings to the Court, this motion has been treated as one for summary judgment under Federal Rule of Civil Procedure 56, in accordance with Rule 12(b).
The government's argument is a simple one: Edith F. Bulloch is not David K. Bulloch's wife, therefore she is not entitled to compensation for any loss of consortium. The plaintiffs admit that they are not legally married, but respond that a legal marriage is not a required element of proof in a consortium claim. I have concluded that the plaintiffs are correct and that in New Jersey proof of a legal marriage is not an essential element of a consortium claim.
The legal question presented is a novel one. Both parties agree that New Jersey law governs this count of the complaint, but neither the parties' nor my own research has discovered a New Jersey case addressing the question. Nor has extensive research discovered a case in any other jurisdiction that considers whether a legal marriage is a prerequisite to an action for loss of consortium. The only cases discovered were a few that assumed, without discussion, that a marriage is necessary and went on to consider whether the plaintiffs had a legally recognized common law marriage. See Domany v. Otis Elevator Co., 369 F.2d 604 (6th Cir. 1966); Cooper v. Lish, 115 U.S. App. D.C. 291, 318 F.2d 262 (D.C.Cir.1963); De Vito v. Hoffman, 91 U.S. App. D.C. 263, 199 F.2d 468 (D.C.Cir.1952). None of these cases cited any authority for this assumption, although it seems to have been an assumption that was shared by the plaintiffs as well. This case, then, appears to be the first wherein a plaintiff has argued that a legal marriage need not be shown to prevail on a consortium claim.
This case is not, however, the first to present arguments questioning common law views of unmarried couples. Recent years have seen a nationwide flurry of cases that have challenged the traditional common law conception of extra-marital relations. See, e.g. Kremer v. Black, 201 Neb. 467, 268 N.W.2d 582 (Sup.Ct.1978) (tort of criminal conversation retained in Nebraska); Stanard v. Bolin, 88 Wash.2d 614, 565 P.2d 94 (Sup.Ct.1977) (cause of action for breach of promise to marry retained in Washington); Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106 (1976) (nonmarital partners may enforce contracts not inextricably based on sexual relations); Slawek v. Stroh, 62 Wis.2d 295, 215 N.W.2d 9 (Sup.Ct.1974) (unwed father may bring suit to establish paternity, tort of seduction retained in Wisconsin, child born out of wedlock does not have cause of action against his or her parents for mental distress, etc.). The amount of scholarly commentary has risen to the point that The Index to Legal Periodicals (H.W. Wilson) has recently added a new category, "Unmarried Couples," to its listing. As might be expected, the New Jersey courts have been among those dealing with the various questions that have arisen from these relationships. See, e.g. Kozlowski v. Kozlowski, 80 N.J. 378, 403 A.2d 902 (1979) (nonmarital partners may enforce agreements not explicitly and inseparably founded on sexual services); State v. Saunders, 75 N.J. 200, 381 A.2d 333 (1977) (criminal fornication statute unconstitutional invasion of privacy); Parkinson v. J. & S. Tool Co., 64 N.J. 159, 313 A.2d 609 (1974) (despite lack of legal marriage, de facto spouse qualifies as dependent under workers' compensation statute). Similarly, the common law conception of the marital relationship has not been immune to reexamination. See, e.g., Trammel v. United States, 445 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980), (common law privilege precluding one spouse from testifying against the other in a criminal trial modified). In this area, as well, the New Jersey courts have actively participated. See, e.g., Immer v. Risko, 56 N.J. 482, 267 A.2d 481 (1970) (interspousal tort immunity abolished); State v. Smith, 169 N.J.Super. 98, 404 A.2d 331 (App.Div.1979) aff'g 148 N.J.Super. 219, 372 A.2d 386 (Cty.Ct.1977), awaiting argument N.J. Supreme Court, (common law rule that man may not be convicted for the rape of his wife sustained retrospectively, prospective rule declared moot since new rape statute, N.J.S.A. 2C:14-5(b) clearly permits conviction of spouse for rape). (The Smith case is discussed in detail in Comment, The Common Law Does Not Support a Marital Exception for Forcible Rape, 5 Women's Rights L.Rep. 181 (1979)).
It is not surprising that many courts have been forced to consider questions in this general area. Census data and sociological studies confirm the notion felt by many that marriage is not the sacrosanct institution that it once was and that extra-marital relations are not the anathema they once were. See, e.g. Bureau of the Census, United States Department of Commerce, Marital Status and Living Arrangements: March 1979, (Current Population Reports, Population Characteristics, Series P-20, No. 349) (1980), (2.7 million people in the United States are partners in a cohabitation situation); Clayton & Voss, Shacking Up: Cohabitation in the 1970's, 39 Journal of Marriage and the Family 273 (1977); cf. Kazin v. Kazin, 81 N.J. 85, 94, 405 A.2d 360, 365 (1979) ("Changed attitudes toward marriage and the burgeoning divorce rate, reflecting the temper of the times, have created new interpersonal problems, which have already impacted upon the courts.")
It is against this background of law and social mores in flux that this case must be considered; but it must be decided in accordance with the applicable principles of law. Although this is a case of first impression, I must begin where all law begins, with an examination of the facts.
Edith F. Bulloch filed an affidavit in response to the government's motion which I must accept as the facts of this case for the purpose of this motion. Fed.R.Civ.Pro. 12 & 56. As the Third Circuit stated in Janek v. Celebrezze, 336 F.2d 828 (3d Cir. 1964), ". . . the court must take that view of the evidence most favorable to the party against whom the motion is directed, giving to that party the benefit of all favorable inferences that might reasonably be drawn from the evidence." Id. at 834. See Sanford v. O'Neill, 616 F.2d 92 at 96 (3d Cir. 1980); Drexel v. Union Prescription Centers, Inc., 582 F.2d 781, 790 (3d Cir. 1978); Braden v. University of Pittsburgh, 552 F.2d 948, 966-67 (3d Cir. 1977) (en banc) (Garth, J., concurring). Here, then, is Edith F. Bulloch's description of her relationship with David K. Bulloch:
2. I was married to the plaintiff, David K. Bulloch, on June 5, 1951 and together we had two children, David William Bulloch, born on November 10, 1953, and Jeanne Debra Bulloch, born on November 6, 1957.
3. The co-plaintiff and I resided together in the same household until on or about April 26, 1974. After that date we lived separate and apart and a formal Judgment of Divorce was entered on February 17, 1977 in the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. M-22793-75.
4. Despite that divorce proceeding, David K. Bulloch and I continued to communicate regularly because of the relationship which we had with our children and prior to May 21, 1977 had agreed to a reconciliation, to resume living together and ultimately to remarry.
5. On May 21, 1977, David K. Bulloch was in an accident which caused him severe injuries which is the subject matter of this litigation. He remained hospitalized at the University of Pennsylvania and then the New York University Institute of Rehabilitation Medicine until September of 1977. During that period of time, he abandoned his separate living quarters, his lease was terminated and all of his belongings were returned to our marital abode. Upon his discharge from New York University Institute of Rehabilitation Medicine we began residing together again at our marital home at 11 Saddle Ranch Lane, Hillsdale, New Jersey. It became apparent shortly thereafter that David was unable to have sexual relations. We considered entering into a marriage ceremony but were advised that since it was impossible for us to consummate the marital act, such ceremony would be of no effect.
6. It was our intention prior to the accident of May 21, 1977 to resume a normal marital relationship. I am the mother of David K. Bulloch's children, we have continued to reside together since September 1977 in the same household and have held each other and continue to hold each other out as husband and wife, and I consider myself the wife of David K. Bulloch.
Affidavit of Edith F. Bulloch, dated March 3, 1980.
Taking the view of this evidence most favorable to the plaintiffs, it can be said that the Bullochs have a relationship with each other that has lasted nearly thirty years. During this time there was a period of nearly three years of severe discord, leading to a divorce. Despite this discord, however, an amicable relationship existed at all times between the Bullochs concerning the upbringing of their children. A reconciliation followed quickly on the heels of the formal divorce. By the date of David Bulloch's unfortunate accident, it can be inferred that the Bullochs were engaged to be remarried and that they intimately discussed and planned their personal lives and the lives of their children. Although David Bulloch was not living with Edith Bulloch when he left his home on the day of the accident, when he next returned home after hospitalization it was to a home and bed that he shared with Edith Bulloch. For the nearly three years following the accident, the Bullochs have held themselves out as man and wife, have considered themselves to be married, and have only failed to formalize their marriage due to David Bulloch's impotence. It should be noted that their unnamed advisor incorrectly informed them of the New Jersey law which does not require consummation. See Herr & Lodge, Marriage, Divorce and Separation, (N. J. Practice, Vol. 10 ) § 27 (1963 and supp.) Nevertheless, this incorrect view of the law appears to be sincerely held. Finally, it can be inferred that the Bullochs intend to remain together for the rest of their lives.
The question to be determined, then, is would the New Jersey courts hold as a matter of law that Edith Bulloch could not recover damages for loss of consortium if all of the above facts were proven by the preponderance of the credible evidence. In answering this question, I have taken guidance from Judge Adams' instructive opinion in Becker v. Interstate Properties, 569 F.2d 1203 (3d Cir. 1977), cert. denied 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978). In that case, Judge Adams discussed the role of federal courts in answering novel questions of state law. According to Judge Adams,
The task of a federal court sitting in diversity is frequently not an easy one, for it must forsake its realm of expertise and assume the aspect of a court of the forum state. Even when applying well-settled law, the federal tribunal must be alert to nuances of precedent. Where, as here, a federal court is asked to pass on the implication of a declaration by a state high court of a new principle in an evolving area of the law, it must act with even greater sensitivity.
Inasmuch as no New Jersey cases are squarely on point, it is important to make clear that our disposition of this case must be governed by a prediction of what a New Jersey court would do if confronted with the facts before us. Such an estimate cannot be the product of a mere recitation of previously decided cases. Rather, as in any diversity case, a federal court must be sensitive to the doctrinal trends of the state whose law it applies, and the policies which inform the prior adjudications by the state courts. A diversity litigant should not be drawn to the federal forum by the prospect of a more favorable outcome than he could expect in the state ...