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Sacco v. High Country Independent Press2/14/1995
d remanded the case for a retrial of the cause of action. However, the Court premised its finding of error on that part of the instruction which instructed the jury to consider Kelly's death in assessing the damages. We concluded that the jury should not have considered Kelly's death because the crash was not a proximate cause of death and any damages award would naturally be much higher if the jury considered the plaintiff's death, as well as her injuries. The Court did state that in Montana, "there may be recovery for damages for personal injuries occasioned by fright or mental shock though there be no physical contact," citing Cashin. Kelly, 126 P.2d at 488. Although we did not discuss our reasoning for allowing the jury to consider the plaintiff's fright and mental shock, it appears that the Court considered Kelly's fright and shock to be a physical injury in and of itself as in Cashin.
"Parasitic" Damages
This Court upheld an award for damages for pain and mental anguish in a case with a host cause of action involving real property in the form of nuisance, trespass and negligence claims in French v. Ralph E. Moore, Inc. (1983), 203 Mont. 327, 661 P.2d 844. Gasoline from the neighboring Texaco station contaminated and polluted the Frenchs' home and restaurant, forcing the closure of the restaurant and forcing the French family to live under uninhabitable conditions. Noting that previous Montana cases had allowed for the recovery of damages for emotional distress when the underlying action was injury to real property, the Court "[held] that damages for mental anguish are recoverable in a negligence action where the claim is that the defendant has interfered with the use and enjoyment of plaintiff's land. No sound reason exists to hold otherwise." French, 661 P.2d at 848.
Damages for emotional distress in a wrongful death action, were allowed for the first time in Dawson v. Hill and Hill Truck Lines (1983), 206 Mont. 325, 671 P.2d 589. In Dawson, parents brought suit when their son was killed in a traffic accident. This Court held that damages for "the sorrow, mental distress or grief of the parents of a deceased minor [child are] recoverable in a wrongful death action. . . ." Dawson, 671 P.2d at 590. The Dawson court addressed the argument that mental distress damages are difficult to allocate by stating:
Montana allows the estate of a decedent to recover damages for the decedent's pain suffered prior to death. Surely a jury which can lawfully weigh such intangible damage can be trusted to fairly compensate for the grief suffered by the survivors.
Dawson, 671 P.2d at 593. The Dawson Court then limited the mental distress damages in a wrongful death action by stating that " he mental distress for which recovery can be sought under the rationale of Dawson, is limited to mental anguish, sorrow or grief resulting from the death . . . damages which are caused by the loss of decedent's life." Dawson, 671 P.2d at 593.
The leading case involving emotional distress recovered as parasitic damages is Johnson v. Supersave Markets, Inc. (1984), 211 Mont. 465, 686 P.2d 209. In Johnson, plaintiff's wife had written a check at the Supersave Market which was subsequently returned for insufficient funds. Plaintiff's wife had signed his name on the check. After Supersave made a series of efforts to collect the funds, it assigned the debt to a collection agency and then the debt was assigned to the Missoula County Attorney's office for prosecution. At a later date, Johnson made restitution on the delinquent draft, receiving a receipt for full payment.
At about that same time, the county attorney's office, which had never been a
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