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Rathgeber v. James Hemenway8/15/2001
surance Agency, Inc., 132 Or App 52, 66, 887 P2d 836 (1994), rev den 320 Or 598 (1995) (holding in a client's action against insurance agents that, assuming that the right to a driver's license is a legally protected interest, it is primarily an economic interest and is not of sufficient importance); Hilt v. Bernstein, 75 Or App 502, 515, 707 P2d 88 (1985), rev den 300 Or 545 (1986) (concluding that the right to competent legal representation is an economic interest not important enough to merit protection from emotional impact); Flowers v. Bank of America, 67 Or App 791, 794, 679 P2d 1385, rev den 297 Or 601 (1984) (concluding that a bank client's contractual right to have a credit card honored is insufficiently important).
Plaintiffs attempt to distinguish the foregoing cases by arguing that their paramount interest arising from the realtor -client relationship was "the use and enjoyment of a safe and sound home," an interest that they contend was not merely economic. That may well be so, but the relationship among the parties was fundamentally economic. Defendants were to be paid for services rendered in procuring property of a type that is regularly bought and sold in a recognized market. Although it is foreseeable that the failure of a residential real estate transaction might cause emotional injury to a disappointed purchaser, the legal source of defendants' liability cannot be merely the foreseeability of such injury. Hammond v. Central Lane Communications Center, 312 Or 17, 25, 816 P2d 593 (1991). In this case, the evidence showed that defendants' sole undertaking was to aid plaintiffs in the purchase of a residence. That undertaking was fundamentally economic and, therefore, not sufficient to support an award of emotional distress damages.
As noted, apart from the parties' professional relationship itself, plaintiffs contend that they established defendants' infringement of three additional legally protected interests: plaintiffs' rights under ORS 696.810(2), which lists the fiduciary duties of a buyers' agent in a real property transaction; plaintiffs' rights under the UTPA; and plaintiffs' expectancy interest in the use and enjoyment of property. However, whether analyzed under Curtis or viewed in light of the "legally protected interest test," those arguments do not advance plaintiffs' position.
With respect to Curtis, each of plaintiffs' alleged interests is predicated solely upon Zobel's undertaking as their agent in a real property transaction. Accordingly, in order to prevail, plaintiffs must establish that Zobel owed a specific duty--arising from that undertaking--to recognize the risk of and prevent emotional distress. 327 Or at 15-16. As noted, plaintiffs did not establish the existence of such a duty.
With respect to the "legally protected interest" test, plaintiff's statutory rights under ORS 696.810(2) are not meaningfully distinct from their first asserted interest, which is fundamentally economic and would not support an award of damages for emotional injury . Plaintiffs' third asserted interest, arising from the UTPA, falls with that claim. For their fourth asserted interest, plaintiffs rely on Macca v. Gen. Telephone Co. of N.W., 262 Or 414, 495 P2d 1193 (1972), for the proposition that an interference in the use and enjoyment of property constitutes infringement of a separate legally protected interest that would support damages for emotional distress:
"The present case is in the same posture. The complaint seeks damages for the distress incident 'to the uprooting of [plaintiffs'] children and themselves from the security of a home of their own, and incident to the threat of being forced to complete the purchase of a house unfit for
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