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Kondaurov v. Kerdasha9/16/2005
eclude an award of damages for emotional distress arising from the plaintiff's concern for the dog. That is a position the defense maintained consistently throughout the trial and it involves a question we have not previously decided. The motion to strike thus met one of the primary purposes of the contemporaneous objection rule: To afford the trial judge a fair opportunity to correct errors while the case is still before the trial court. See Vasquez, 269 Va. at 163, 606 S.E.2d at 813. We hold that the defendants' position on appeal was not waived. For the reasons stated below, however, the trial court did not err in denying the motion.
Emotional Distress
(1) Background
We have held, for well over a century, that mental anguish may be inferred from bodily injury and that it is not necessary to prove it with specificity. Norfolk & W. Ry. Co. v. Marpole, 97 Va. 594, 599-600, 34 S.E. 462, 464 (1899). Mental anguish, when fairly inferred from injuries sustained, is an element of damages. Bruce v. Madden, 208 Va. 636, 639-40, 160 S.E.2d 137, 139 (1968).
Many of our decisions involving the recovery of damages for emotional distress have arisen in the context of "non-impact" torts, where a plaintiff has claimed injury, emotional, physical or both, without having been physically touched as a result of a defendant's negligence. The present case involves a direct physical impact, resulting in some bodily injury to the plaintiff. Nevertheless, the policy considerations that have guided our decisions on the recovery of damages for emotional distress apply equally to both "impact" and "non-impact" cases, and we shall consider both categories together in discussing those policy considerations.
In Hughes v. Moore, 214 Va. 27, 34-35, 197 S.E.2d 214, 219-20 (1973), we departed, partially, from the historic "impact rule," which required a physical impact upon the plaintiff as a prerequisite to the recovery of damages for emotional distress. In Hughes, we held that, in the absence of willful, wanton or vindictive conduct, damages could not be recovered for emotional disturbance alone, where physical impact was lacking, but that where the claim is for emotional disturbance "and physical injury resulting therefrom," (emphasis in original) there may be recovery for negligent conduct, without proof of physical impact. We held, however, that there must be an "unbroken chain of causal connection between the negligent act, the emotional disturbance, and the physical injury." Id. Significantly, we pointed out:
A defendant's standard of conduct is generally measured by the reaction to be expected of a normal person. Absent specific knowledge by a defendant of a plaintiff's unusual sensitivity, there should be no recovery for mental or emotional disturbance and consequent physical injury to a hypersensitive person where a normal individual would not be affected under the circumstances.
Id. We also qualified the ruling by stating:
e are not saying that a plaintiff . . . may recover damages for physical injuries resulting from fright or shock caused by witnessing injury to another . . . or caused by seeing the resulting injury to a third person after it has been inflicted through defendant's negligence.
Hughes addresses a situation in which a plaintiff argues that the defendant's negligence has caused him to suffer emotional distress, that the emotional distress has in turn made him physically ill, and the causal connection is shown by clear and convincing evidence. A different situation was presented in Myseros v. Sissler, 239 Va. 8, 387 S.E.2d 463 (1990), where the plaintiff contended that the defendant's negligent operat
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