I see a lot of people who are really upset. Something terrible has happened,
or someone has done something terrible to them, or some terrible situation
has trapped them. Whatever the cause, the same question invariably comes
up: "Can't I sue for my emotional distress?" My answer must
be: "It's not that simple."
There is a large gap between the popular view of emotional distress damages
and what the law actually allows. A recent case illustrates and then explains
the difference.
In McMahon v. Craig (July 31, 2009) a dog owner brought her show dog, a
purebred Maltese, to a veterinarian for treatment. The dog suffered from
paralysis in the throat. The owner explained to the veterinarian her strong
bond with the dog and asked the veterinarian to do whatever possible to
cure the dog, regardless of the expense. The dog underwent surgery. However,
before the surgery, an assistant at the clinic had given the dog water
mixed with baby food - a serious mistake. Only water should have been
given. The dog wound up with food in her lungs and later died from aspiration
pneumonia.
The owner sued the veterinarian. The owner alleged a number of different
claims, including intentional infliction of emotional distress. While
acknowledging that the owner had understandably suffered from the death
of her beloved pet, the Court of Appeal rejected any claim for emotional
distress damages.
In terms of legal policy, the Court was generally reluctant to make available
to pet owners damages for emotional distress because of the possibly huge
economic consequences and the difficulty of defining the scope of liability.
After all, the real victim was the dog. The owner was not present at the
surgery and obviously was not the patient.
Still, the Court was very precise in delineating the limits of emotional
distress damages under existing law. The Court described three situations
in which such damages could be recovered: First, "bystander"
situations in which the plaintiff actually witnesses injury to a closely
related person and, as a result, suffers emotional distress beyond what
the plaintiff would have experienced had the victim been a stranger. Second,
the "direct victim" situation in which the plaintiff is the
victim, a defendant owes the plaintiff a duty of care, the defendant does
not perform that duty, and the plaintiff suffers both an injury and emotional
distress. Third, the situation in which the defendant engages in extreme
and outrageous conduct with the intent of causing emotional distress,
and the plaintiff does suffer such distress as a result of that conduct.
Finally, in all the three situations, the plaintiff's emotional distress
must generate a real injury, psychological or physical, as opposed to
a mere excitation which passes without consequence. In plain terms, unless
as a consequence the plaintiff seeks medical assistance, there is no solid
basis for emotional distress damages.
Many people do not understand these criteria, or at least are in no mood
to understand them, when they first seek a lawyer's help. It is not
easy to explain that the law does not provide compensation for every perceived
offense. The legal system does not engage in teaching good manners. Nor
does it guarantee that everyone will be treated civilly.
For example, the criterion for "extreme and outrageous conduct"
is actually an objective standard. If an average citizen living in a civilized
community would not resent the conduct in question, the criterion is not
met. In addition, if the conduct is not directed specifically at the plaintiff,
as opposed to directed at someone else or at society at large, then that
criterion is not met.
Ironically, a California statute states, as a maxim of jurisprudence, that
"for every wrong there is a remedy." The real business of the
legislature and the courts is to define what a "wrong" consists
of to begin with. Some acts are, but others are not. The categories do
change over time, sometimes suddenly and sometimes gradually. But we in
the legal profession never know the how and the when in advance.