Damages for negligent infliction of emotional distress rejected in legal malpractice case, not because there was no physical injury and no zone of danger, but because the type of representation did not involve deeply personal and emotional issues

Vincent v. DeVries, 2013 VT 34 (Robinson, J.)


This case involves a jury award of emotional a legal malpractice action. Defendant appeals, challenging the trial court’s denial of his motions for judgment as a matter of law Defendant argues that emotional distress damages are not available in a legal malpractice We reverse.

Defendant admitted breach of a duty to plaintiff, and, in the trial-within-a-trial, plaintiff proved that but for the breach plaintiff would not have been ordered to convey his home to buyers in exchange for $52,000. The jury awarded awarding a total of $183,000 in damages comprising $103,000 in economic damages—representing what plaintiff paid to settle the underlying case and retain his home—and $80,000 in emotional distress damages.

The general rule precluding emotional distress damages in ordinary negligence claims without physical impact is longstanding, well-established, and almost universally embraced. However, modern courts have allowed recovery in cases of certain relationships or undertakings that are “fraught with the risk of emotional harm.” Restatement (Third) Torts: Physical & Emotional Harm § 47 cmt. b. In legal malpractice cases some courts have concluded that emotional distress damages are recoverable without physical impact case if the lawyer is contracted to perform services involving deeply emotional responses in the event of a breach. Most cases allowing damages for emotional injury in the absence of physical impact require that the emotional injury be serious. Restatement (Third) of Torts § 47 cmt. l

Assuming without deciding that Vermont law allows damages under certain circumstances for serious emotional distress in legal malpractice claims and that the evidence in this case could support a finding of sufficiently serious emotional anguish to support such a claim, we conclude that the subject of defendant’s representation of plaintiff was not of such a personal and emotional nature that it would support an exception to the general rule disallowing recovery of emotional distress damages in the absence of either physical impact or substantial bodily injury or sickness.

Plaintiff did not lose his home but, rather, faced a threatened loss of his home, which he ultimately avoided by settling the case. We do not mean to suggest that the anxiety associated with the threatened loss of one’s home cannot be profound. But in contrast, for example, to the loss of liberty or one’s child—for which there may be no adequate measure of pecuniary damages, and in connection with which serious emotional distress can be readily expected – this not the type of representation or deeply emotional harm for which modern courts allow compensation. We reverse the trial court’s award of emotional distress damages to plaintiff.