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Kondaurov v. Kerdasha9/16/2005
In this appeal from a judgment for the plaintiff in a personal injury case, the dispositive question is whether the jury was permitted to consider non-recoverable elements in awarding damages for emotional distress.
Facts
The facts will be stated in the light most favorable to the plaintiff, the prevailing party at trial. On November 16, 1998, Eve I. Kerdasha, the plaintiff, was driving a Jeep Grand Cherokee on Route 110 in Arlington County. She was following a car driven by her boyfriend, David Postlewaite. Behind the plaintiff was a large tour bus belonging to the Embassy of the Russian Federation (the Embassy) and driven by Vladimir Kondaurov, an employee of the Embassy acting within the scope of his employment. The vehicles were all traveling southbound at 55-60 miles per hour.
Traffic ahead of Postlewaite began to slow, evidently because sirens could be heard coming from emergency vehicles about to enter Route 110 from a ramp on the right.
Postlewaite and the plaintiff also slowed, but the bus failed to do so and struck the rear of the plaintiff's Jeep, causing it to strike the rear of Postlewaite's car in turn. This second impact caused the plaintiff's vehicle to fall over onto its side and skid rapidly into the path of an ambulance coming down a sharply curving ramp onto Route 110. The ambulance then struck the plaintiff's Jeep with sufficient force that the Jeep "flipped over onto its roof."
The paramedics in the ambulance ran to the plaintiff and found her "hanging upside-down by the seatbelt." She was conscious but "very upset," "crying . . . and just very shaky." The paramedics asked her if she was hurt and she said "a little bit, that she didn't think she was, but she had a medical condition. And she kept asking where her dog was, because . . . she had a dog in the car."
The plaintiff had been diagnosed with multiple sclerosis some years before the accident and also suffered from emotional problems including depression and a generalized anxiety disorder. These conditions sometimes resulted in "stress attacks" that caused her to fall and to lose temporary control of her arms and legs. About 18 months before the accident, she had acquired a dog, named "Sushi," primarily to help her maintain emotional stability and prevent or moderate her "stress attacks." She developed a very strong emotional attachment to the dog. Her psychiatrist described the relationship as "like a mother/child unit." A witness testified that the plaintiff and Sushi "were inseparable. . . . Sushi was Eve's very best friend in the world. . . . he most unconditional source of love in Eve's life, period."
Sushi was not in the Jeep when the witnesses approached it after the impact, having evidently been ejected through the open sunroof or a broken window. Postlewaite saw the dog running south on Route 110 but was unable to catch it. He noticed that its tail had been "cut." He approached the plaintiff, who told him to "just go find Sushi." Postlewaite saw the plaintiff in the hospital some two hours later and noticed that she was "very upset" and "reiterated that she wanted me to find Sushi." After a long search, Postlewaite found the dog in a veterinary hospital where some kind person had taken her after finding her wandering about in a residential area. The dog's tail had been injured and had to be partially amputated.
The plaintiff sustained few apparent physical injuries. She received pain-relieving medications for bruises and contusions. She was released from the hospital with a neck brace that she wore for several weeks to relieve cervical stiffness and soreness. Her symptoms of multiple sclerosis worsened considerably
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