There are certain questions lawyers get asked with some frequency, including “What about my pain in suffering?” Mental anguish, pain and suffering, humiliation, embarrassment, annoyance, whatever term may apply, Virginia law places serious limitations on the recovery of money in a lawsuit for these emotional-type, non-pecuniary (i.e. non-monetary) damages. Let’s cover one big issue first: under Virginia law, non-pecuniary damages are not recoverable for breach of contract alone. See, e.g., Sea-Land Serv., Inc. v. O'Neal, 224 Va. 343, 354 (1982). This means that if the clown fails to show up for little Timmy’s birthday party and ruins the whole day, you don’t get to recover for all those hurt feelings. All you get are your monetary losses (maybe the cost of procuring a new clown).

If non-pecuniary damages are not available for breach of contract, when are they available? Generally speaking, one may only recover for non-pecuniary damages when they result from a tortiously-caused physical injury. Naccash v. Burger, 223 Va. 406, 415-16 (1982). What does tortiously-caused mean? A tort is the infringement of a legal right owed by virtue of simply living in society with each other (i.e. independent of any agreement). The most common tort is negligence, that is, not taking reasonable care to avoid injuring someone. Other torts include assault, battery, trespass, false imprisonment, defective products and more.

Perhaps more importantly, in most circumstances, to recover for non-pecuniary damages there must be a physical injury. So, if John crashes into your empty, parked car that you hold dear to you heart, you get to recover for the actual fair market value of damage to the car, not for how much heartache John caused. But if John fails to take due precautions and steps on your pinky toe causing a small scrape, you get to recover for your pecuniary losses, like missed time from work, and your non-pecuniary losses, like all the bad feelings you felt as a result of the scrape. This rule can often have harsh results.

In Darnell v. K-Mart Corp., No. 4:05CV00052, 2005 U.S. Dist. LEXIS 34641, at *2-3 (W.D. Va. Dec. 12, 2005), the Darnell’s bought a TV/CD combo from K-Mart. Due to a defect, the device started a fire, burning down their house, destroying all their possessions, and killing their pets. Id. The court held that, because there was no physical injury to the Darnells, the Darnells could only recover the monetary costs of what they lost. Id. *4-8. This would mean, for example, that the Darnells would get an amount necessary to cover the cost of procuring new pets, and not an amount to compensate them for the loss of their precious loved ones.

To soften the harshness of this rule, there are some limited exceptions to the rule that non-pecuniary damages are only recoverable for a tortiously caused physical injury.

First, non-pecuniary damages are recoverable when a “physical injury” results from purely emotional distress and it is proved by clear and convincing evidence and an “unbroken chain of causal connection between the negligent act, the emotional disturbance, and the physical injury.” Hughes v. Moore, 214 Va. 27, 34 (1973). In Hughes a pregnant woman was standing in living room and had a car crash into her house. Id. at 27. Plaintiff was so emotionally distraught she "could not breast-feed her three-month-old baby for lack of milk, and her menstrual period started." Id. at 28. Recovery was allowed for fright or shock accompanying this type of “physical injury,” despite lack of physical contact. Id. at 35. Note that this “exception” still requires a physical injury, but the physical injury can be caused purely by emotional distress. The line between a “physical injury” and emotional distress can be fuzzy, but the Virginia Supreme Court has held that even symptoms that seem physical are not necessarily “physical injuries.” See Myseros v. Sissler, 239 Va. 8, 12-13, 387 S.E.2d 463, 465-66 (1990) (headaches, dizziness, and chest pain were merely symptoms or manifestation of anxiety and, therefore, not a physical injury for which there could be recovery of non-pecuniary damages under Hughes.)

Second, non-pecuniary damages are recoverable without physical injury when (1) the tort is intentional or reckless; (2) the tortfeasor's conduct is outrageous and intolerable; (3) the wrongful conduct and the emotional distress are causally connected; and (4) the emotional distress is severe. Womack v. Eldridge, 215 Va. 338, 342(1974). In Womack, defendant fraudulently obtained a photograph to accuse plaintiff of being a child molester, and plaintiff was allowed to recover for non-pecuniary damages. In these circumstances the court held that the defendant acted intentionally, their actions were outrageous, and their actions caused severe emotional distress to the plaintiff and that, therefore, the elements above were met. Id.

Third, non-pecuniary damages were available to the parents in a medical malpractice "wrongful birth" suit where a doctor negligently misdiagnosed their unborn child's fatal disease and the child died 31 months after birth. Naccash v. Burger, 223 Va. 406, 415-16, 290 S.E.2d 825 (1982). Naccash appears to be limited to this specific factual scenario. See Myseros v. Sissler, 239 Va. 8, 10 fn. 2 (1990) (“In any event, Naccash is confined to its particular facts[.]”)

Lastly, certain types of torts carry with them the ability to sue for non-pecuniary damages because they are designed to specifically address these types of harms. For example, in Bowers v. Westvaco Corp., 244 Va. 139, 142-44 (1992), plaintiffs alleged that a truck staging facility mere feet away from their house created dust, confusion, and noise with things that sounded like chainsaws, shotguns, and thunder at all hours of the day and night. The Plaintiff’s sued alleging the tort of private nuisance. Id. at 144. The court stated:

When a business enterprise, even though lawful, becomes obnoxious to occupants of neighboring dwellings and renders enjoyment of the structures uncomfortable by virtue of, for example, smoke, cinders, dust, noise, offensive odors, or noxious gases, the operation of such business is a nuisance. The term 'nuisance' includes everything that endangers life or health, or obstructs the reasonable and comfortable use of property.

Id. (citation and quotations omitted).

Defendant alleged that, under the tort of private nuisance, non-pecuniary damages were not allowed. Id. at 147. The court held that Plaintiffs were entitled to compensation for physical or emotional injuries resulting from a nuisance that has endangered "life or health." Id. at 148.

In N. Va. Kitchen, Bath & Basement, Inc. v. Ellis, 299 Va. 615, 618-19 (2021), the owner of a construction company, Powell, a white man, hired Ellis, a black man, as a subcontractor to renovate a bathroom. The customer terminated the relationship with Powell based on a dispute and asked Ellis to continue the work. Id. Ellis did so and Powell, unhappy at this turn of events, began to harass Ellis with threats and racial slurs in text messages. Id. The text messages got posted online and Powell sued Ellis for defamation. Id. The court dismissed Powell’s claim, but allowed a counterclaim from Ellis based on Powell’s threats to go forward. Ellis sued under Code §§ 8.01-42.1 and 8.01-42.3:

Code § 8.01-42.1 provides, in relevant part, that:

A. An action for . . . civil damages . . . shall lie for any person who is subjected to acts of (i) intimidation or harassment or (ii) violence against his person . . . where such acts are motivated by racial, religious, or ethnic animosity.

Code § 8.01-42.3 provides, in relevant part, that:

A. A victim has a civil cause of action against an individual who engaged [stalking], whether or not the individual has been charged or convicted for the alleged violation, for the compensatory damages incurred by the victim as a result of that conduct[.]

Powell claimed that, because there was no monetary injury, Ellis was not entitled to any compensatory damages (i.e. that Ellis was not entitled to recover for his non-pecuniary losses). Ellis, 299 Va. at 624. The court disagreed saying "the recovery of damages for humiliation, embarrassment, and similar harm to feelings, although unaccompanied by actual physical injury, where a cause of action existed independently of such harm." Id. at 624. (quoting Sea-Land Service, Inc. v. O'Neal, 224 Va. 343, 354 (1982)) (emphasis in original). The court cited numerous cases where non-pecuniary damages were allowed where the tort itself was designed to address dignitary harms such as humiliation or embarrassment. Id.

Cases where non-pecuniary damages have been allowed for certain torts based on “a cause of action that existed independently of [physical injury]” include: Peshine v. Shepperson, 58 Va. (17 Gratt.) 472, 486 (1867) (deliberate trespass); Chesapeake & Potomac Tel. Co. v. Carless, 127 Va. 5, 9, 102 S.E. 569 (1920) (wrongful suspension of telephone service); W.T. Grant Co. v. Owens, 149 Va. 906, 925, 141 S.E. 860 (1928) (false imprisonment); James v. Powell, 154 Va. 96, 117, 152 S.E. 539, (1930) (libel); Spitzer v. Clatterbuck, 202 Va. 1001, 1006-07, 121 S.E.2d 466 (1961) (malicious prosecution); Giant of Virginia., Inc. v. Pigg, 207 Va. 679, 685, 152 S.E.2d 271 (1967) (malicious prosecution); Shepard v. Capitol Foundry of Virginia, Inc., 262 Va. 715, 554 S.E.2d 72 (2001) (wrongful death); Sea-Land Serv., Inc. v. O'Neal, 224 Va. 343, 354, 297 S.E.2d 647, 653 (1982) (egregious, intentional fraud done with malice); and Fairfax Hosp. by & Through INOVA Health Sys. Hosps. v. Curtis, 254 Va. 437, 446, 492 S.E.2d 642, 644 (1997) (unauthorized disclosure of medical records).

By now it should be clear that the answer to the question “What about my pain and suffering?” is, in a large class of cases, that they are irrelevant to a lawsuit. When seeking these non-pecuniary damages it is important to (1) allege a physical injury caused by a tort, or (2) plead a tort that allows the recovery for these types of damages.

If you have any questions about this article, or about non-pecuniary damages in general, please contact Andrew Hanlin (ahanlin@setlifflaw.com) at 804-377-1277 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.