The Alabama Lawyer
67 The Alabama Lawyer 47 (2006).
Painful Findings: Determining the Availability of Mental Anguish Damages in Alabama
Painful Findings: Determining the Availability of Mental Anguish Damages in AlabamaBY SUSAN E. MCPHERSON At some point in their careers, whether representing the plaintiff or defendant, most lawyers will work a case where the plaintiff claims damages for mental anguish but has not physical injury.(fn1) In fact, for many litigation attorneys, such cases are actually quite common. Whether you need to creatively increase your client's recovery or just as creatively obtain a partial dismissal, Alabama law in this area can prove somewhat ambiguous, particularly in cases involving multiple claims and multiple parties. This article will provide an overview of the basic rules addressing the availability of mental anguish damages in Alabama and list the rules for several common causes of action where the plaintiff has suffered no physical injury.
Somewhat counter-intuitively, the basic rule for tort claims is that damages for mental anguish may not be recovered where the plaintiff has suffered only damage to his or her property. As with most legal rules, however, an exception exists. The Alabama Supreme Court has held that damages for mental anguish may be had for injury solely to property where the tort has been "committed under circumstances of insult or contumely."(fn2) Wal-Mart Stores, Inc. v. Bowers, 752 So. 2d 1201, 1204 (Ala. 1999).(fn3) Thus, where the defendant has sufficiently, and one would presume egregiously,(fn4) insulted the plaintiff while damaging his property, the plaintiff may recover mental anguish damages. Note, however, that whether "the tort is committed under circumstances of insult or contumely is a question properly left to the determination of the jury." Reinhardt Motors, Inc. v. Boston, 516 So. 2d 509, 511 (Ala. 1986).
Although "Alabama law does not permit recovery of mental-anguish damages based on a claim of simple negligence where the negligent act or omission results in mere injury to property[,]" mental anguish damages may be recovered in specific circumstances. Ex parte Grand Manor, Inc., 778 So.2d 173, 179-180 (Ala. 2000). For negligence actions, unlike other torts, Alabama courts apply the so-called "zone-of-danger" test to determine if plaintiffs may recover mental anguish damages where they have suffered no physical injury.(fn5) Under this test, the plaintiff must have been placed "in immediate risk of physical harm" by the defendant's conduct.(fn6) Note that it must have been reasonably foreseeable to the defendant that the plaintiff would be placed at risk by his conduct.(fn7)
In cases where there is a factual dispute about whether the plaintiff was actually in a zone of danger, the question is appropriate for jury determination, rather than for the trial judge. City of Mobile v. Taylor, 2005 WL 1414281 at *4 (Ala. Civ. App. June 17, 2005). The Alabama Court of Civil Appeals held in the Taylor case that in such circumstances, a jury instruction on the "zone of danger" test must be given in order "to provide the jury with the complete 'framework' of legal principles necessary for a determination of whether compensatory damages for mental anguish [can] appropriately be awarded."(fn8)
Damages for mental anguish have been held compensable in fraud cases, however, it is uncertain whether Alabama courts will apply a specific test to make the determination.(fn9) At least one case has seemingly applied the insult and contumely test for general tort claims.(fn10) Note, however, that Justice Houston, in his concurring opinion in Southern Bakeries, Inc. v. Knipp, 852 So.2d 712 (Ala. 2002), discussed the most recent of these holdings, the Spivey case cited above, as it related to whether emotional distress/mental anguish damages are available for fraud. Justice Houston concluded that mental anguish damages were compensable where "sufficiently linked to other, legally cognizable injury." Id. at 725. So far as this author can tell, the Alabama Supreme Court has not elaborated on Justice Houston's statement.
"An award of damages for mental anguish generally is not allowed in breach-of-contract actions in Alabama." Bowers v. Wal-Mart Stores, Inc., 827 So. 2d 63, 68-69 (Ala. 2001)(recognizing that in contract actions such damages are usually too remote, not contemplated by the parties, or not a natural result...