Day on Torts

Sylvius von Saucken, a partner in the Garretson firm, has written this analysis of the opinion in Murphy v. United States, released by D.C. Court of Appeals on July 3, 2007.    The case addresses the taxability of damage awards in cases alleging emotional distress.

Here, in bold,  is his analysis of the decision:

On July 3, 2007 the highly anticipated Murphy decision was handed down following its rehearing on April 23, 2007. The original three judge panel (for the D.C. Court of Appeals) reheard the case following the Government’s Petition for a Rehearing En Banc. This case has a rather unusual procedural history because it is atypical for a court to vacate its own opinion, which in turn renders an existing Petition for a Rehearing en banc moot, and then rehear the case. The court’s impetus for doing so remained a mystery up until Tuesday. In the recent decision the court explained its actions. In its Petition for a rehearing the Government raised a new constitutional issue, as the Government argued “even if Murphy’s award is not income, there is no constitutional impediment to taxing it because a tax on the award is not a direct tax and is imposed uniformly.”  This issue apparently triggered the court to vacate its earlier opinion and effectively gave the Government another try.

The initial opinion, issued last August was decided in favor of Murphy, but this time the same court’s three-judge panel turned about-face and held:

1. Murphy’s compensatory award was not received on account of personal physical injuries, it was for non-physical emotional distress, with the physical manifestations (bruxism, etc.) being used to prove those emotional injuries, therefore is not exempt from taxation pursuant to §104(a)(2) of the IRC;

2. The award is a part of her “gross income,” as defined by § 61 of the IRC; regardless of whether the award was an accession to wealth.

3. The tax upon the award is an excise and not a direct tax subject to the apportionment requirement of Article I, Section 9 of the Constitution.”

The D.C. Circuit Court of Appeals has released an en banc  opinion in Murphy v. Internal  Revenue Service,  No. 05-5139 (July 3, 2007).

The summary of the opinion as prepared by the Court:  "Marrita Murphy brought this suit to recover income taxes she paid on the compensatory damages for emotional distress and loss of reputation  she was awarded inan administrative action she brought against her former employer. Murphy contends that under § 104(a)(2) of the Internal Revenue Code (IRC), 26 U.S.C. § 104(a)(2), her award should have been excluded from her gross income because it was compensation received “on account of personal physical injuries or physical sickness.” She also maintains that, in any event, her award is not part of her gross income as defined by § 61 of the IRC, 26 U.S.C. § 61. Finally, she argues that taxing her award subjects her to an unapportioned direct tax in violation of Article I, Section 9 of the Constitution of the United States.

We reject Murphy’s argument in all aspects. We hold, first, that Murphy’s compensation was not “received ... on account of personal physical injuries” excludable from gross income under §104(a)(2). Second, we conclude gross income as defined by § 61 includes compensatory damages  for non-physical injuries. Third, we hold that a tax upon such damages is within the
Congress’s power to tax."

Read the entire opinion here.

The Kentucky Supreme Court has ruled that damages for pre-impact fear cannot be recovered in a wrongful death case.

The Court said that "The proof of the fear in this case the testimony of a person at the scene of the accident that the decedent's facial expression showed she saw the accident coming and was terrified-simply underscores the speculative nature of such harm. Mrs. Congleton's mental distress, if any, simply was caused not by the impact she suffered, but by fear of the impact. Under the impact rule as currently applied in Kentucky, her pre-impact fear and shock cannot serve as the basis of a claim, and any damages for such a claim are not recoverable."

The case is noteworthy because it will eliminate one potential element of damages in the Comair litigation underway in Lexington.  It has little relevance for Tennessee lawyers in Tennessee cases because I think our Court would reach a different result on the law.  (The subject  case was a little short on a factual basis for the damages.)

The Kentucky decision is Steel Technologies v. Congleton,  2005-SC-000551-DG  (June 21, 2007).  Read it here.

Thanks to Shannon Ragsdale at Jury Verdict Publications for telling me about the opinion.

The Indiana Supreme Court has ruled that the fiancee of a man who came upon a crash site involving a collision between her fiancee and defendant could not sue for emotional distress.

Indiana law says that  "[w]hen . . . a plaintiff sustains a direct impact by the negligence of another and, by virtue of that direct involvement sustains an emotional trauma which is serious in nature and of a kind and extent normally expected to occur in a reasonable person, . . . such a plaintiff is entitled to maintain an action to recover for that emotional trauma without regard to whether the emotional trauma arises out of or accompanies any physical injury to the plaintiff." 

It also provides that "a bystander may . . . establish “direct involvement” by proving that the plaintiff actually witnessed or came on the scene soon after the death or severe injury of a loved one with a relationship to the plaintiff analogous to a spouse, parent, child, grandparent, grandchild, or sibling caused by the defendant’s negligent or other-wise tortuous [sic] conduct.."

However, the Court rejected plaintiff's argument that one who was engaged to be married was "analogous to a spouse."  The Court weighed these three factors in reaching its decision:  "(1) promoting the strong state interest in the marriage relationship; (2) preventing an unreasonable burden on the courts; and (3) limiting the number of persons to whom a negligent defendant owes a duty of care."

The Court also examined the "soon after the death of a loved one”  requirement and held that it provides that "the requirement of bystander recovery is both temporal—at or immediately following the incident—and also circumstantial. The scene viewed by the claimant must be essentially as it was at the time of the incident, the victim must be in essentially the same condition as immediately following the incident, and the claimant must not have been informed of the incident before coming upon the scene."

The decision is Smith v. Toney, No. 94S00-0602-CQ-48 (Ind. S. March 13, 2007).  Read it here.

The New Hampshire Supreme Court has held that a boyfriend riding a motorcycle could not bring an emotional distress claim against another driver for injuries caused as a result witnessing the death of his passenger (who was also his girlfriend).

The issue was "did the trial court err in determining that the plaintiff and MacDonald were not “closely related” so as to satisfy the requirements of Graves v. Estabrook, 149 N.H. 202 (2003), for bystander recovery in a negligent infliction of emotional distress claim?"

The Supreme Court affirmed dismissal of the case, holding that the plaintiff and his late girlfriend were not "closely related."  They explained their decision as follows:

"In Graves, we held that the close relationship required by the Dillon test need not be one defined only by blood or marriage. Graves, 149 N.H. at 206. Instead, we determined that a plaintiff must show a relationship that is of significant duration and which is deep, lasting and genuinely intimate, i.e., a relationship that is stable, enduring, substantial, and mutually supportive, cemented by strong emotional bonds and providing a deep and pervasive emotional security. Id. at 209. When determining whether a plaintiff and a victim are “closely related,” the trial court is to take into account: (1) the duration of the relationship; (2) the degree of mutual dependence; (3) the extent of common contributions to a life together; (4) the extent and quality of shared experience; (5) whether the plaintiff and the injured person were members of the same household; (6) their emotional reliance upon each other; (7) the particulars of their day-to-day relationship; and (8) the manner in which they related to each other in attending to life’s mundane requirements. Id. at 209-10.
In Graves, we determined that the plaintiff had met the standard for alleging the existence of a sufficiently close relationship, in part, because she alleged that she and the decedent were engaged to be married and had lived together for more than seven years. Id. at 210. Construing all reasonable inferences in favor of the plaintiff, we determined that it was reasonable to infer that the plaintiff and her fiancée “enjoyed mutual dependence, common contributions to a life together, emotional reliance on each other and attended to life’s mundane requirements together.” Id.
...

[Conversely]. [t]he plaintiff and MacDonald were involved in a relationship lasting approximately six months. In that brief time, they did not live together and had not married or become engaged, nor was there any prospect of them doing so for some time. Moreover, at the time of MacDonald’s death, both she and the plaintiff were unemployed and living with their respective parents. Thus, they could not financially support each other, and it was unlikely that they could become members of the same household at any point in the foreseeable future, or that they could make any more than minimal contributions to a life together. Also, although the plaintiff contends that he and MacDonald met or spoke on the telephone frequently, and spent time dining out, camping or visiting relatives together, such interactions reveal little, if anything, about the particulars of their day-to-day relationship or the manner in which they related to each other in attending to life’s mundane requirements. To extend Graves to include relationships such as the one between the plaintiff and MacDonald
would invite a significant expansion of bystander liability in New Hampshire, a result we have consistently refused to permit. Graves, 149 N.H. at 205-06."

The case is St. Onge v. MacDonald,  No. 2006-317 (January 26, 2007).  Read the opinion  here.

Note: don't let the name of the decedent and the name of the defendant confuse you.  Oddly, each of them shared the same last name.

The Tennessee Supreme Court has ruled that the three-year statute of limitation applies for emotional distess claims arising out of injury to property "inspired by fraud, malice or like motives."

The Trial Court and Court of Appeals affirmed dismissal of the claim for emotional injuries because the lawsuit was not  filed within one year.  The TSC reversed on this issue, holding that "[t]he gravamen of the Whaleys’ complaint is that the defendants’ actions injured their property, and the damages they sought for emotional distress were “damages aris[ing] wholly as a result of the injury  to plaintiffs’ property and not as a result of anything personally done to them.” In other words, the  Whaleys’ “claim” for damages for emotional distress was merely an element of their overall claim  for damages for the injury to their property and not a stand-alone cause of action. Consequently, the  three-year property tort statute of limitations applies, and the intermediate court erred in holding that the one-year personal injury statute of limitations barred the Whaleys’ claim for damages for emotional distress."  

Turning to another issue, the Court also held that "the Defendants’ violation of the Shelby County subdivision regulation does not warrant the application of the doctrine of negligence  per se."  The Court agreed with the Court of Appeals on this issue, and adopted this language from the opinion of the lower appellate court:  "these subdivision regulations were enacted largely for reasons related  to quality of life, among them, assuring adequate public facilities for  residents, minimizing pollution, providing for orderly layout and use  of land, protecting the value of land, preventing overcrowding, and  assuring effective traffic circulation. The harm alleged by the  Whaleys is not a harm the regulations were designed to prevent, but  rather, it is an accidental consequence of a [regulation] enacted to  prevent other harms to the community and its residents that could be  caused by the unregulated subdivision of land."

The case is Whaley v. Perkins, No. W2004-02058-SC-R11-CV  (Tenn.  July 14, 2006).  Read the opinion here.

The United States District Court for the District of Columbia has allowed plaintiffs in a trespass action to seek damages for emotional distress.

Defendant and its predecessors alleged contaminated ground water with gasoline. Plaintiffs' claims included claims for emotional distress.

The Court ruled that "[u]nder District of Columbia law, it is firmly established that a plaintiff may recover damages for mental suffering unaccompanied by physical injury where the plaintiff sues for an intentional tort. Adams v. George W. Cochran & Co., Inc., 597 A.2d 28, 31 (D.C. 1991); Parker v. Stein, 557 A.2d 1319, 1322 (D.C. 1989); Barnes v. Dist. of Columbia, 452 A.2d 1198, 1199 D.C. 1982). It is also clear that trespass is an intentional tort. E.g., Cleveland Park Club v. Perry, 165 A.2d 48, 488 (D.C. 1960). Although the parties have not cited - and the Court has been unable to find - a District of Columbia decision addressing the availability of emotional distress damages in a trespass case, the decision in Parker is instructive. In that case, the Court of Appeals for the District of Columbia, applying the established rule regarding intentional torts, concluded that emotional distress damages are available in an action for conversion of personal property. Parker, 557 A.2d at 1322-23. Here, the Court can find no meaningful distinction between personal and real property to suggest that courts in the District of Columbia would permit recovery of emotional distress damages for intentional torts involving personal, but not real, property damage. Accordingly, the Court concludes that emotional distress damages are recoverable for trespass actions under District of Columbia law."

The case is Nnadili v. Chevron U.S.A., Inc., Civil Action No. 02-1620 (ESH); read the June 1, 2006 opinion here.

Here is an article about some conduct alleged to have occurred in New Jersey which, if true, is going to give rise to some strong emotional distress claims.

The article tells us that certain people who received bone transplants have alleged that the bones "were pilfered from cadavers and sold without the consent of the deceaseds' families or the protective screening required by law, leaving recipients exposed to risk of infection with HIV, hepatitis and syphilis."

Suits have also been filed by families of the cadavers, alleging emotional distress for taking the bones without consent.

Read another article on the litigation here.

This is a very interesting case and one we will try to follow on this blog.