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Kondaurov v. Kerdasha9/16/2005
follows that the defendants' Instruction T correctly stated the existing law and that the trial court erred in refusing it.
(3) Instruction 15
The historic "impact rule," although now somewhat relaxed in this and most jurisdictions, was adopted and adhered to because of the difficulty in proving causation, the fear of fraudulent and exaggerated claims easily asserted and difficult to refute, and concern that a flood of litigation would result if the rule were to be abandoned. Hughes, 214 Va. at 33, 197 S.E.2d at 218-19.
Those concerns are still with us, and where the impact rule has been relaxed, a number of safeguards have been retained. One of those safeguards most pertinent to this case is the requirement that " bsent 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. at 34, 197 S.E.2d at 219. That limitation applies to claims for damages for emotional distress, and physical injury arising from emotional distress, whether there has been a physical impact or not, and regardless of the source of the claimed emotional distress.
The "normal person" limitation expressed in Hughes is in sharp contrast to the usual rule applicable to bodily injury claims: When an act or omission is such that a reasonably prudent person ought to have foreseen that it was liable to result in injury to another, it is negligent with respect to a party injured thereby, and the negligent party is liable for all the injurious consequences which naturally befall the injured party as a proximate result of the negligence, whether foreseen or not. Barnette v. Dickens, 205 Va. 12, 16, 135 S.E.2d 109, 112-13 (1964). "Liability ensues when injury results from a risk or hazard which may be reasonably foreseen, although the precise injury may not be foreseen." Maroulis v. Elliott, 207 Va. 503, 509-10, 151 S.E.2d 339, 344 (1966).
That familiar rule is sometimes expressed: "A defendant . . . must take the plaintiff as he finds him," Bradner v. Mitchell, 234 Va. 483, 489, 362 S.E.2d 718, 722 (1987), and supports jury instructions permitting compensation for the aggravation of pre-existing conditions. It is inapplicable to claims for damages arising solely from emotional distress and physical injury resulting entirely from emotional distress because it fails to guard against claims made by a hypersensitive plaintiff.
It is undisputed that the plaintiff in this case was a hypersensitive person. Her treating psychiatrist characterized her as a "damaged woman medically" and he answered affirmatively when asked: " ould the collision on September 16, 1998, have a greater effect on her than some person without her mental health problems?"
Instruction 15, which the trial court granted, permitted the jury to award damages for emotional distress far beyond that which a normal person would have sustained. Such an instruction, given without limitation in a case of this kind, permits a plaintiff to recover damages limited only by his ability to articulate his anguish. Such a claim is impossible for a defendant to refute. The "normal person" limitation expressed in Hughes substitutes a more objective standard for the measure of damages. In cases where the plaintiff claims damages arising from emotional distress, and physical injury resulting therefrom, and where there is no proof of willful, wanton, vindictive or outrageous conduct on the defendant's part, the jury should be instructed that the defendant is only responsible for such emotional distress as could
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