Kondaurov v. Kerdasha, Record No. 042077.
| Decision Date | 21 April 2006 |
| Docket Number | Record No. 042077. |
| Citation | 629 S.E.2d 181 |
| Parties | Vladimir KONDAUROV, et al. v. Eve I. KERDASHA. |
| Court | Virginia Supreme Court |
Grady C. Frank, Jr., Alexandria (Thomas C. Junker, Richmond; Megan Starace Ben'Ary, LaClair Ryan, Alexandria, on brief), for appellants,
Peter C. Burnett, Leesburg (Jeffrey Rosenfeld, Fairfax; Karen M. Kennedy; Donald S. Culkin, Washington, DC; Rosenfeld & Associates; Kennedy & Associates; Burnett & Williams, Leesburg, on brief), for appellee.
The Virginia Ass'n of Defense Attys.; M. Bryan Slaughter (Richard E. Ladd, Jr.; Mark E. Frye, on brief), in support of appellants.
Present: HASSELL, C.J., LACY, KEENAN, KOONTZ, KINSER, and LEMONS, JJ., and RUSSELL, Senior Justice.
In this appeal from a judgment for the plaintiff in a personal injury case, the dispositive question is whether the jury was permitted to consider non-recoverable elements in awarding damages for emotional distress.
The facts will be stated in the light most favorable to the plaintiff, the prevailing party at trial. On November 16, 1998, Eve I Kerdasha, the plaintiff, was driving a Jeep Grand Cherokee on Route 110 in Arlington County. She was following a car driven by her boyfriend, David Postlewaite. Behind the plaintiff was a large tour bus belonging to the Embassy of the Russian Federation (the Embassy) and driven by Vladimir Kondaurov, an employee of the Embassy acting within the scope of his employment. The vehicles were all traveling southbound at 55-60 miles per hour.
Traffic ahead of Postlewaite began to slow, evidently because sirens could be heard coming from emergency vehicles about to enter Route 110 from a ramp on the right. Postlewaite and the plaintiff also slowed, but the bus failed to do so and struck the rear of the plaintiff's Jeep, causing it to strike the rear of Postlewaite's car in turn. This second impact caused the plaintiff's vehicle to fall over onto its side and skid rapidly into the path of an ambulance coming down a sharply curving ramp onto Route 110. The ambulance then struck the plaintiff's Jeep with sufficient force that the Jeep "flipped over onto its roof."
The paramedics in the ambulance ran to the plaintiff and found her "hanging upside-down by the seatbelt." She was conscious but "very upset," "crying . . . and just very shaky." The paramedics asked her if she was hurt and she said
The plaintiff had been diagnosed with multiple sclerosis some years before the accident and also suffered from emotional problems including depression and a generalized anxiety disorder. These conditions sometimes resulted in "stress attacks" that caused her to fall and to lose temporary control of her arms and legs. About 18 months before the accident, she had acquired a dog, named "Sushi," primarily to help her maintain emotional stability and prevent or moderate her "stress attacks." She developed a very strong emotional attachment to the dog. Her psychiatrist described the relationship as "like a mother/child unit." A witness testified that the plaintiff and Sushi
Sushi was not in the Jeep when the witnesses approached it after the impact, having evidently been ejected through the open sun-roof or a broken window. Postlewaite saw the dog running south on Route 110 but was unable to catch it. He noticed that its tail had been "cut." He approached the plaintiff, who told him to "just go find Sushi." Postlewaite saw the plaintiff in the hospital some two hours later and noticed that she was "very upset" and "reiterated that she wanted me to find Sushi." After a long search, Postlewaite found the dog in a veterinary hospital where some kind person had taken her after finding her wandering about in a residential area. The dog's tail had been injured and had to be partially amputated.
The plaintiff sustained few apparent physical injuries. She received pain-relieving medications for bruises and contusions. She was released from the hospital with a neck brace that she wore for several weeks to relieve cervical stiffness and soreness. Her symptoms of multiple sclerosis worsened considerably, however, in the months after the accident. In the opinion of her neurologist, those symptoms were causally related to the emotional trauma she had sustained as a result of the accident. He testified that, by contrast, "physical trauma seems to have no effect on the course of multiple sclerosis."
The plaintiff brought this action for personal injuries against Kondaurov and the Embassy.2 The defendants conceded liability and the case was tried to a jury on the sole issue of damages. The jury returned a verdict for the plaintiff and fixed her damages at $300,000. We awarded the defendants an appeal.
There are three assignments of error: (1) Whether the trial court erred in denying the defendants' motion to strike the evidence relating to the plaintiff's emotional distress caused by the injury to her dog, (2) whether the court erred in refusing to instruct the jury that damages could not be awarded for emotional distress the plaintiff suffered because of her concern for the dog, and (3) whether the court erred in instructing the jury that the defendants were responsible for all the injurious consequences of their negligence "even though they might not reasonably have been expected to result."
The record of the trial is replete with references to the dog.3 In plaintiff's opening statement to the jury, counsel stated that Defense counsel made no objection to this, but in his opening statement made reference to a deposition wherein the psychiatrist stated that he had treated the dog as well as the plaintiff.
During the plaintiff's case, witnesses testified that the emotional bond between the plaintiff and her dog was extremely close. Several witnesses stated that the dog suffered such a shock as a result of the accident that she would cower under a bed or hide in a closet when she heard a siren outside. They added that the plaintiff had become distraught because of the dog's condition and would have to go under the bed or into the closet and stay there with the dog to comfort her. The plaintiff's psychiatrist testified as an expert witness that the plaintiff was "devastated by what happened emotionally and by what happened to her dog." His opinion was that the effects of the accident had made the plaintiff's underlying depression and anxiety disorder more difficult to treat and had created an "almost catastrophic downhill ride for her," leaving her subject to "feelings of fear, feelings of danger, feelings of terror, cinematic tension, tremor, motor tics."
Defense counsel made no objection to this evidence as it was presented, but at the close of the plaintiff's case, moved the court to strike the evidence insofar as it related to The court denied the motion. Defense counsel renewed it at the close of all the evidence and it was again denied.
The defense tendered the following instruction:
Instruction T
The Court instructs the jury that in considering the question of the Plaintiff's damages, the law of Virginia provides that Plaintiff may not recover for emotional or mental anguish she claims to have suffered either because of her concern for her dog's injuries in the accident or because of her concern for the dog's physical or emotional condition thereafter.
The court sustained the plaintiff's objection to that instruction and refused it. The plaintiff offered the following instructions:
In determining the damages to which EVE KERDASHA is entitled, you shall consider any of the following which you believe by the greater weight of the evidence was caused by the negligence of the Defendant, VLADIMIR KONDAUROV.
(2) Any bodily injuries she sustained and their effect on her health according to their degree and probable duration;
(3) any physical pain and mental anguish she suffered in the past and any that she may be reasonably expected to suffer in the future (4) any disfigurement or deformity and any associated humiliation or embarrassment;
(5) any inconvenience caused in the past and any that probably will be caused in the future;
(6) any medical expenses incurred in the past;
(7) any veterinary bills incurred in the past.
Your verdict shall be for such sum as will fully and fairly compensate EVE KERDASHA for the damages sustained as a result of VLADIMIR KONDAUROV'S negligence.
If you find that the Plaintiff, EVE KERDASHA had a condition before the accident that was aggravated as a result of the accident or that the pre-existing condition made the injury she received in the accident more severe or more difficult to treat, she may recover for the aggravation and for the increased severity or difficulty of treatment, but she is not entitled to recover for the pre-existing condition.
The defendants are liable for all the injurious consequences to the plaintiff which naturally resulted from the defendant's act, and it is immaterial that all such consequences might not reasonably have been expected to...
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