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‘Hypersensitivity’ does not limit emotional damages, court holds

By Alan Cooper , from the Virginia Lawyers Weekly journal

The Supreme Court of Virginia has decided to stay away from the distinction between physical and emotional injuries that it announced in “Kondaurov v. Kerdasha” in November.

The court took the extremely unusual step of vacating that opinion after Eve Kerdasha’s attorneys contended in a petition for rehearing that her emotional hypersensitivity was not an issue until Senior Justice Charles S. Russell raised it in his opinion for the court.
The court granted the petition, and on April 21 Russell again sent the case back to Arlington County Circuit Court for a new trial on damages.

But the new opinion contains little of the language that plaintiffs’ attorneys found so distressing in the first one.

In a discussion in the November opinion that found a plaintiff’s instruction to be improper, Russell analogized Kerdasha’s circumstances to cases in which a plaintiff suffers physical injury as the result of emotional distress.

Because of “the fear of fraudulent and exaggerated claims easily asserted and difficult to refute,” Russell said, Virginia and other states have allowed recovery only when a defendant was aware of a plaintiff’s unusual sensitivity and acted outrageously as a result of that knowledge.

An instruction the trial judge gave over the objection of the defendant “permitted the jury to award damages for emotional distress far beyond that which a normal person would have sustained,” Russell wrote. “Such an instruction, given without limitation in a case of this kind, permits a plaintiff to recover damages limited only by his ability to articulate his anguish. Such a claim is impossible for the defendant to refute.”

Russell said the jury should have been instructed that “the defendant is only responsible for such emotional distress as could reasonably be expected by a person of normal sensitivity and normal reactions under the circumstances of the case.”

Kerdasha’s attorneys—Peter C. Burnett, Jeffrey Rosenfeld and Karen M. Kennedy of Northern Virginia—responded that the distinction between physical injury and emotional injury directly related to physical harm was new territory for the court.

The decision went far beyond the general rule that defendants take a plaintiffs as they find them, the attorneys contended in their petition for rehearing. “In finding that she must prove the damages that would have been suffered by a person of ‘normal sensitivity,’ the court established a potentially impossible burden of proof, one that is certain to increase the cost and complexity of litigation in Virginia.

“The policy considerations that created the need to limit liability in cases of emotional distress without impact are not present in this case,” they concluded.

In the April 21 opinion, VLW 006-6-033, Russell still found that the instruction—which told the jury that the defendant was liable for all the injurious consequences of his act even if those consequences were unexpected—was duplicative of other instructions and placed no limit what the jury might consider injurious.

However, instead of analogizing Kerdasha’s emotional harm to non-impact emotional injuries, Russell included a long list of types of emotional distress related to her physical injury for which the jury could award damages.

Those damages did not include the emotional trauma she suffered because of concern about injuries to her dog, Sushi, which was in Kerdasha’s Jeep and also injured when it was rear-ended by a large tour bus in November 1998, Russell said.

The Jeep fell onto its side and skidded into the path of an ambulance. The ambulance struck the Jeep and knocked it onto its roof, leaving Kerdasha suspended upside down from her seat belt.
Remarkably, Kerdasha suffered no injuries more serious than bruises and a stiff and sore neck.
However, the emotional trauma of the wreck made her preexisting multiple sclerosis worse. Moreover, she had a strong emotional attachment to Sushi, and the dog was thrown out of the car and not found for some time. The dog’s tail had to be partially amputated as the result of an injury it suffered in the wreck.

After the accident, Sushi would cower under a bed or in a closet when it heard a siren, and Kerdasha would go under the bed or into the closet to comfort her.

A psychiatrist testified that Kerdasha was “devastated by what happened emotionally and by what happened to her dog.” The incident created an “almost catastrophic downhill ride for her” and left her with “feelings of fear, feelings of terror, cinematic tension, tremor, motor tics,” the psychiatrist testified.

A jury awarded Kerdasha $300,000.

Because pets are considered personal property under state law, damages related to injuries to them are “confined to the diminution in their value” caused by an accident, “plus reasonable and necessary expenses incurred,” Russell said.

(Source: Virginia Lawyers Weekly, 04/21/06)