Sunday, March 28, 2010
Damages for inconvenience? Why not?
About two weeks ago, the Illinois Court of Appeals decided a case that makes me question the concept of damages. The case, Mayer v Chicago Mechanical Services (available here), involved a lawsuit filed by a plaintiffs who were forced to leave their home because it was rendered uninhabitable due to the alleged negligence of the defendant which caused the home to be contaminated with mold. The plaintiffs were forced to live elsewhere for an extended period of time. The plaintiffs argued that they were entitled to compensation for the discomfort and inconvenience of being forced to leave their homes to escape the dangerous condition caused by the defendant’s negligence. The defendant argued that damages for inconvenience and discomfort are not recoverable as a matter of law. The lower court agreed with the defendant and dismissed the complaint. On appeal, the Court of Appeals held that, at least in cases where there is evidence of some interference with or deprivation of a possessory interest in the property in question as a condition precedent to obtaining damages for any resulting inconvenience, a claim for discomfort or annoyance is a "distinct grounds of compensation for which in ordinary cases the person in possession is allowed to recover in addition to the harm to his proprietary interests." (citing the Restatement (second) of Torts). Thus, the court concluded that, as a general proposition, it could not conclude that the type of injuries claimed by the plaintiffs were not recoverable as a matter of law. In short, the inconvenience of being forced to live out of one’s home is an injury, the value of which can be recoverable. Having said that, however, the court then surprisingly affirmed the lower court, finding that “plaintiffs have largely ignored the practical effects of being displaced from their homes, instead focusing principally on the abstract sense of satisfaction associated with one's home” and concluding that the plaintiffs’ claims were “vague and subjective” because they (the plaintiffs) “felt a sense of homelessness, and they did not like living out of a suitcase and having their normal living patterns disrupted.” As explained by the court: “[b]y virtue of this reasoning, one could seek recompense for displacement without regard to his or her actual living conditions. We cannot subscribe to such a sweeping view. The type of harm for which plaintiffs seek recovery is simply too nebulous to serve as a basis for an award of damages.” What the court is saying here is that the plaintiffs, who have been displaced from their homes because of the defendant’s negligence, can only recover for the inconvenience of having lost their home for a period of time if they can show that the alternative living conditions were bad. So if the plaintiffs decided to wait out the problem while staying in a luxurious resort, they can’t recover. I do not like this result. I think that no matter where you are forced to live there is a “loss” in having to deal with the inconvenience of being forced out of a home. Maybe you could say that the value of the loss is lower if the alternative living conditions are luxirious, but I don’t agree that we should say there is no injury at all. To me, this case raises a question as to the nature of the concepts of "injury," "damages" and "remedy." Often, we define a tort as "a wrong for which the law recognizes a remedy." And we say that the "remedy" is expressed in terms of "compensation for the damages suffered" or, in short, as "damages." Yet, we all know that the law does not recognize recovery for all damages, so one important aspect of tort law theory is to develop a way to figure out for which types of damages should a remedy be available. Sometimes the answer to this question depends on the type of damages we are talking about. The history of the development of causes of action for negligent infliction of emotional distress provides a good example of this. Sometimes the answer depends on the public policy concerns related to the conduct involved. The issue of whether we should recognize a cause of action for injuries that result of a social host's provision of alcohol to someone who will drive is an example of this. I am not sure, though, that the court in this case did an adequate job of placing the case in either category. It seems to me we should decide whether the inconvenience of being forced out of one's home is an "injury"; whether it represents a loss that has value. If so, we should allow the jury to determine what that value is. In this case the court decided that inconvenience is a compensable injury, but then it said the plaintiffs did not have a right to recover for it. Why not? If it is an injury and they can prove they suffered it, why not let the jury decide what the value of the injury is?