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.
Showing posts with label zone of danger. Show all posts
Showing posts with label zone of danger. Show all posts
Wednesday, June 19, 2013
Friday, May 8, 2009
Wrongful death of a cat: no damages for lost companionship or emotional distress.
Goodby v. Vetpharm, 2009 VT 52 (Burgess, J.)
This case presents two questions: first, whether noneconomic damages are available when a pet dies due to negligent or wanton acts of veterinarians and a pharmaceutical company; second, whether a claim for negligent infliction of emotional distress lies for the death of a pet when its human companion was not within any so-called zone of danger at the time of the mishap. We answer both questions in the negative and affirm the superior court’s order of dismissal.
Plaintiffs recognize that the common law generally treats animals as personal property. We have said that the measure governing damages to personal property is the property’s “fair market value before the injury less fair market value after the injury.” That there may be a different or more appropriate measure of damages for the tangible loss of pets due to the negligence of others—a measure based on the particular pet’s value to its owner, not simply its value to a stranger in the market—need not be considered here, since plaintiffs effectively waived that claim by dismissing all claims for general damages in favor of preserving only claims for their lost companionship and emotional distress resulting from the death of their pets.
Plaintiffs and amicus Animal Legal Defense Fund urge us to adopt the view that companion animals are more properly considered as family members than personal property, so that recovery for noneconomic damage occasioned by their loss should be similarly available as for the wrongful death of next of kin. Plaintiffs fail to demonstrate a compelling reason why, as a matter of public policy, the law should offer broader compensation for the loss of a pet than would be available for the loss of a friend, relative, work animal, heirloom, or memento—all of which can be prized beyond measure, but for which this state’s law does not recognize recovery for sentimental loss. We are not persuaded that a special exception to recover noneconomic damages for the loss of companion animals occasioned by negligence should be undertaken outside of the legislative arena.
To be in the “zone of danger,” the plaintiff must be within the zone of an act negligently directed at him by defendant. Further, recovery for negligent infliction of emotional distress is precluded where the claimant does not allege “any reasonable fear for [his or her] own safety. The facts alleged in this case do not satisfy these standards. Administering the pills to the cats placed plaintiffs in no fear for their own safety, and were not acts “directed at” plaintiffs, but rather at their pets. Therefore, we also affirm the trial court’s decision to dismiss the negligent infliction of emotional distress claim.
Affirmed.
This case presents two questions: first, whether noneconomic damages are available when a pet dies due to negligent or wanton acts of veterinarians and a pharmaceutical company; second, whether a claim for negligent infliction of emotional distress lies for the death of a pet when its human companion was not within any so-called zone of danger at the time of the mishap. We answer both questions in the negative and affirm the superior court’s order of dismissal.
Plaintiffs recognize that the common law generally treats animals as personal property. We have said that the measure governing damages to personal property is the property’s “fair market value before the injury less fair market value after the injury.” That there may be a different or more appropriate measure of damages for the tangible loss of pets due to the negligence of others—a measure based on the particular pet’s value to its owner, not simply its value to a stranger in the market—need not be considered here, since plaintiffs effectively waived that claim by dismissing all claims for general damages in favor of preserving only claims for their lost companionship and emotional distress resulting from the death of their pets.
Plaintiffs and amicus Animal Legal Defense Fund urge us to adopt the view that companion animals are more properly considered as family members than personal property, so that recovery for noneconomic damage occasioned by their loss should be similarly available as for the wrongful death of next of kin. Plaintiffs fail to demonstrate a compelling reason why, as a matter of public policy, the law should offer broader compensation for the loss of a pet than would be available for the loss of a friend, relative, work animal, heirloom, or memento—all of which can be prized beyond measure, but for which this state’s law does not recognize recovery for sentimental loss. We are not persuaded that a special exception to recover noneconomic damages for the loss of companion animals occasioned by negligence should be undertaken outside of the legislative arena.
To be in the “zone of danger,” the plaintiff must be within the zone of an act negligently directed at him by defendant. Further, recovery for negligent infliction of emotional distress is precluded where the claimant does not allege “any reasonable fear for [his or her] own safety. The facts alleged in this case do not satisfy these standards. Administering the pills to the cats placed plaintiffs in no fear for their own safety, and were not acts “directed at” plaintiffs, but rather at their pets. Therefore, we also affirm the trial court’s decision to dismiss the negligent infliction of emotional distress claim.
Affirmed.
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