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Rathgeber v. James Hemenway8/15/2001
s, defendants should have known Zobel to be incompetent. If evidence of a single episode of negligence were sufficient to support an inference that the actor also was incompetent, any negligent act or omission by a professional automatically would suffice as an implied misrepresentation of competence under ORS 646.608(1). Put differently, evidence that Zobel breached his general duty of care in the present transaction would establish the falsity of an implied representation that he was competent. Such a conclusion would hopelessly confuse the common-law doctrine of negligence with statutory misrepresentation claims under the UTPA. Because there was no evidence that defendants violated ORS 646.608(1)(e), the trial court erred in denying defendants' motion for a directed verdict on plaintiffs' UTPA claim.
We turn to defendants' contention that the trial court erred in denying their motion to strike plaintiffs' claim for emotional distress damages in connection with their breach of fiduciary duty claim. In reviewing that decision, we consider whether there was any evidence to support the jury's award. Tadsen v. Praegitzer Industries, Inc., 324 Or 465, 468, 928 P2d 980 (1996). Generally speaking, damages for negligent infliction of emotional distress may not be recovered in the absence of evidence of physical injury . Rustvold v. Taylor, 171 Or App 128, 137, 14 P3d 675 (2000), rev allowed 332 Or 56 (2001). There are exceptions to the physical injury requirement, one of which permits the recovery of emotional distress damages arising from conduct that, even if no more than negligent, infringed on a legally protected interest that is independent of an ordinary tort claim for negligence. Nearing v. Weaver, 295 Or 702, 706, 670 P2d 137 (1983); Rustvold, 171 Or App at 138.
Plaintiffs rely on that exception, contending that they established defendants' infringement of four separate legally protected interests: an interest created by the realtor -client relationship between the parties; plaintiffs' rights under the UTPA; plaintiffs' rights under ORS 696.810(2), which lists the fiduciary duties of a buyers' real estate agent; and plaintiffs' expectancy interest in the use and enjoyment of the real property they intended to purchase. According to plaintiffs, each of those interests is of sufficient importance to warrant recovery of emotional distress damages despite the absence of physical injury .
Plaintiffs rely on Curtis v. MRI Imaging Services II, 148 Or App 607, 941 P2d 602 (1997), aff'd on other grounds, 327 Or 9, 956 P2d 960 (1998), for the proposition that a professional relationship in which an agent undertakes to exercise independent judgment on a client's behalf creates an interest sufficiently important to permit recovery of emotional distress damages. In Curtis, the plaintiff sought emotional distress damages arising from the defendants' administration of an MRI procedure without warning the plaintiff of its potential claustrophobic effects, their failure to terminate the procedure when the plaintiff began to suffer from those effects, and their failure to monitor the procedure properly. The trial court granted judgment on the pleadings to the defendants, ruling that emotional distress damages could not be predicated on the parties' professional relationship. On appeal, we reversed, stating that "the relationship between plaintiff and defendant medical professionals, as alleged in the complaint, does give rise to such an actionable 'legally protected interest.'" Id. at 618. We further stated that
" he determination of whether an invasion of a protected interest is of a sufficient quality or magnitude to warrant recovery of emotional distress damages seems, almost inevita
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