• September 24, 2013

Money RoleImagine three scenarios:

  1. Neighbor A pleads with Neighbor B repeatedly over a two year period to attend to a precariously looming dying tree on B’s property overhanging A’s house.  B intentionally delays addressing the problem because B dislikes A, which B makes clear to A (“I’ll take my sweet time. Cool your friggin’ jets, you [FILL IN THE BLANK]”).  Tree falls on A’s home causing extensive damage.
  2. Neighbor A is unaware of precariously looming dying tree on B’s property overhanging A’s home and is unaware of B’s hostility toward A.  B is aware of the risk but, disliking A, B does nothing.  Tree falls on A’s home causing extensive damage.
  3. Neighbor A is unaware of precariously looming dying tree on B’s property overhanging A’s home and unaware of any of B’s dislike of A.  B is aware of the risk but, but strongly disliking A, does nothing until A is in treatment serious health problems and her daughter is having a high school graduation party.  Then, when A is at her most vulnerable, B intentionally chops down the tree intending it to fall on A’s home causing extensive damage days before A’s daughter’s scheduled high school graduation party.

Should a court in the business of adjudicating A’s claim(s) against B establish the measure of damages in the three scenarios differently or the same across the board?  (We assume, of course, that the actual damage to A’s house in the three hypothetical scenarios is equal.)

Most people, I would assume, would favor imposing punitive damages on B for scenario #3.  Under Minnesota law, I think a punitive damages claim on these extreme facts would likely be allowed.

But Scenarios #1 and #2 present somewhat weaker punitive damages scenarios against Neighbor B.  (The Bible tells us to love our neighbors but neither state nor federal law impose much of a legal obligation for us to care about them (or for them).  (Although it is a petty misdemeanor under Minnesota law to ignore someone in harm’s way where there is no risk to the passer-by in offering help (the Good Samaritan Statute)).

Scenarios #1 and #2 differ not in terms of Neighbor B’s state of mind and his culpability but in A’s state of mind and, arguably, the nature of her injury.  In #2, Neighbor A was in a state of ignorance before the damage.  In #1, Neighbor A was in a state of frustration, anger, and anxiety for a prolonged period of time before the accident.

Query: Isn’t there more harm or damage to Neighbor A in Scenario #1 than in Scenario #2?  In the first situation, she suffered anger, frustration, fear and anxiety and she undertook the cost, if you will, of a multi-year ultimately futile campaign for her neighbor in the face of his hostility to take action.  During that period of time, Neighbor A’s quality of life was impaired.

Is it imaginable that Neighbor A should be able to recover more money in Scenario #1 than in Scenario #2, not because of the culpability of her neighbor but because of her greater injury?  Hedonic damages would be the way that the law could, in theory, recognize the difference.  When does the law recognize “hedonic damages” and when should it, if ever?

Why shouldn’t it?

It seems to me that allowing for the possibility of hedonic damages are more in line with our tort system than punitive damages are.  The tort system’s primary goal is compensation and not punishment.  In the context of punitive damages, the judge or jury would look at how rich Neighbor B was to set the amount appropriate to punish him.  If the damage, however, were measured by the judge or jury as putting a value on the diminished enjoyment of life by the tort plaintiff, then there might not be the same risk of radically disparate damages awards between so-called “actual damages” and “punitive” or “exemplary” damages.

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