Connie Reguli

Subject to some exceptions, there can be no recovery for mental anguish suffered by a plaintiff in connection with an injury to his or her property. Where, however, the act occasioning the injury to the property is inspired by fraud, malice, or like motives, mental suffering is a proper element of damage.  Whaley v. Perkins, 197 S.W.3d 665 (Tenn. 2006)

However, contract damages in Tennessee are NOT limited to the monies paid to engage services under contract.  Tennessee has long recognized consequential damages in contract.  The courts have held that in addition to damages for diminution in value and cost of repairs for contractual breaches, the courts may also award all damages that are normal and foreseeable.  Holladay v. Speed, 208 S.W.3d 408, 415 (Tenn. Ct. App. 2005) (citing Morrow v. Jones, 165 S.W.3d 254 (Tenn. Ct. App. 2004)) These types of damages include incidental and consequential damages. Id.  The long-established standard to determine damages in a breach of contract action in Tennessee is whether the damages are naturally arising or if the damages were within the contemplation of the parties at the time of contracting. Chisholm & Moore Manufacturing Co. v. United States Canopy Co., 111 Tenn. 202, 77 S.W. 1062 (Tenn. 1903) (citing Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Rep. 145 (1854)) The court in Hadley went further in saying “if special circumstances were communicated by the plaintiff to the defendant, and thus known by both parties, the damages resulting from the breach of such a contract which they would reasonably contemplate would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated.” Id.

The Court must ascertain whether or not the damage itself was so remote, imaginary or speculative as to be unascertainable or whether it is only the amount of damages that is at issue.  “Uncertain and speculative damages are prohibited only when the existence of the damage is uncertain and not when the amount of damage is uncertain.” Cummins v. Broadie, 667 S.W.2d 759,765 (Tenn. Ct. App. 1983) A Court will allow damages for breach of contract “even where it is impossible to prove the exact amount of damages so long as there is proof with a reasonable degree of certainty.”  Moore Construction Co. Inc. v. Clarksville Dept of Electricity, 707 SW2d 1 (Tenn. App. 1985)

An illustration is found in Johnson v. Woman’s Hospital, 527 SW2d 133 (Tenn. App. 1975) where a mother lost her unborn child and after the fetus was removed she contracted for the disposition of the body.  She later found out that the child had been placed in a jar of formaldehyde.  When presented with this garish image, she suffered nightmares, insomnia, and depression for which she was awarded emotional damages.

            Also see Southeastern Greyhound Lines, Inc. v. Freels, 176 Tenn. 502, 144 S.W.2d 743 (Tenn. 1940) In Southeastern the court allowed a passenger to recover for punitive damages from the harm by the carrier in failing to provide him with the passage after he had purchased the ticket.  The Court stated that Tennessee is in line with the rule that “the tendency of modern authority is to allow damages for mental anguish where it is clearly within the terms of the contract or transaction and was negligently or wantonly caused by the defendant.” Id. at 507 The Court continued to affirm that the question is for the jury as to whether or not the conduct of the defendant was extreme enough to aggravate the damages and justify additional recovery beyond the actual damages.  Id. at 508 The Court quoted “punitory damages cannot be claimed as a matter of right; but it is always a question for the jury, within its discretion, no matter what the facts are.” Id. (citing Railroad Co. v. Satterwhite, 112 Tenn. 185, 79 S.W. 106, 112 (Tenn. 1903))

Punitive damages are available where a defendant has acted either intentionally, fraudulently, maliciously or recklessly. A person acts intentionally when it is the person’s conscious objective or desire to engage in the conduct or cause the result. A person acts fraudulently when (1) the person intentionally misrepresents an existing, material fact or produces a false impression, in order to mislead another or to obtain an undue advantage, and (2) another is injured because of reasonable reliance upon that representation. A person acts maliciously when ill will, hatred, or personal spite motivates the person. A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances. Metcalf v. Waters, 970 S.W.2d 448, (Tenn. 1998)

The courts in two states have permitted adoptive parents to assert negligent misrepresentation claims against adoption agencies for failing to supply them with information in the agency’s possession regarding the biological parents’ genetic information and medical background. Roe v. Catholic Charities of the Diocese of Springfield, 225 Ill. App. 3d 519, 588 N.E.2d 354, 361, 167 Ill. Dec. 713 (Ill. App. Ct. 1992); M.H. v. Caritas Family Servs., 488 N.W.2d 282, 287-88 (Minn. 1992).  Hodge v. Craig, 382 S.W.3d 325, 345  (Tenn. Oct. 1, 2012)

In Hodge v. Craig, the Court also stated, We recognize that “[t]he inexhaustible and ever-changing complications in human affairs are constantly presenting new questions and new conditions which the law must provide for,” Box v. Lanier, 112 Tenn. at 408, 79 S.W. at 1045(quoting Woodman v. Pitman, 79 Me. 456, 10 A. 321, 322 (Me. 1887)), and that, as a common-law court, we are obligated to revise, or even abolish, court-made rules in light of these changed conditions. Broadwell ex rel. Broadwell v. Holmes, 871 S.W.2d 471, 473 (Tenn. 1994); Dupuis v. Hand, 814 S.W.2d at 345-46.  Hodge v. Craig, 382 S.W.3d 325, 346,  (Tenn. Oct. 1, 2012)

Plaintiffs’ rights to compensation for mental anguish is often overlooked or ignored in cases where the relationship appears to be one of contract.  However, Plaintiffs should be willing to assert these rights when available.

A question has been posed whether a Plaintiff who is suing their attorney for malpractice can keep mental anguish damages.  When there is such a confidential, trusting and special relationship, the Court’s should look to the lose and damages occurring due to the negligence of counsel.  This question remains outstanding.

May 2018