concluding that "[c]ourts and juries which have applied the standard of conduct of the reasonable [person] of ordinary prudence are competent to apply a standard of serious mental distress based upon the reaction of the reasonable [person]" (citation and internal quotation marks omitted)
How later courts described this case
- concluding that "[c]ourts and juries which have applied the standard of conduct of the reasonable [person] of ordinary prudence are competent to apply a standard of serious mental distress based upon the reaction of the reasonable [person]" (citation and internal quotation marks omitted)
- stating that “in determining the duty imposed on the defendant, if any, we must weigh the considerations of policy which favor the plaintiffs recovery against those which favor limiting the defendant’s liability”
- holding that “serious mental distress may be found [only] where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case”
- stating that “[t]he majority fail[ed] to adopt a sufficiently stringent test to measure the ‘genuineness’ and ‘seriousness’ of mental distress in cases arising out of property damage”
Written by the judges who cited it.
The opinion
CONCURRING & DISSENTING OPINION OP
LEVINSON, J., •
WITH WHOM ABE, J., JOINS.
I concur with parts I and II of the majority opinion. However, I must dissent from part III dealing with the interest on the loan taken by the plaintiff because of its ambiguity and part IY dealing with damages for emotional distress.
A.
This court in part III holds that the prohibition against interest in HES § 662-8 refers only to “compensation for the delay in payment of money damages which is measured from the accrual of the claim until final judgment, and does not include interest charges which, as an actual ex *177 pense, constitute an item of such money damages.” (Emphasis added.) The policies behind the majority’s argument are persuasive in that the law should encourage the mitigation of damages and the plaintiffs in this case were forced by economic necessity to borrow money. Nevertheless, I would allow the plaintiffs the interest paid on the borrowed money from the time it was borrowed only until the date of the final judgment against the defendant and no longer. That interest constitutes the plaintiffs’ only “actual” damages.
If, in addition to interest from the time the money was borx*owed to the date of judgment, the majority would allow interest charged on the note for a period of time after the date of judgment, a fact which the majority does not clarify although the court below allowed interest for five years at an effective annual rate of 14.81%, I disagree. The judgment in this case was filed on July 29, 1968, less than a year after the money was borrowed. Any expenses incurred by the plaintiffs for the use of the borrowed money after the final judgment, whether they are due to a delay in the payment of the judgment or otherwise, are covered by HRS § 662-8 which provides that “interest shall be computed at the rate of four per cent a year from the date of judgment up to, but not exceeding, thirty days after any appropriation act providing for payment of the judgment.” It may be true that the plaintiffs did not have the money to pay the note and stop the accrual of interest on the date of the judgment although it was their contractual right with the lender and their statutory right under HRS § 408-15 (f) to do so. However, the statutory interest rate then begins to run on the amount of the judgment. To push the concept of “interest” as “damages” past the date of a judgment disregards the plain language of HRS § 662-8 which specifies a statutory interest rate thereafter.
*178 B.
With respect to part IV of the majority opinion it is my view that the reality of mental suffering because of the loss of or injury to property is offset by my disagreement with the policy of recognizing emotional ties to material objects and by the vast potential for abuse inherent in such a theory of recovery. The majority cites no cases granting recovery in this situation and to my knowledge there are none. While I am not reluctant to pioneer with new legal doctrines, I am not convinced that this case merits the breaking of new ground in the field of tort law.
I would begin by placing the concept of emotional distress in perspective. It is generally held that mental disturbance alone, without accompanying physical injury or physical consequences, is not enough for recovery. This is the position of the Restatement (Second) of Torts § 436A (1965). The reasons given are that emotional distress without physical injury is usually trivial and easy to feign, and that mere negligence on the part of the tortfeasor does not warrant such recovery. See Restatement (Second) of Torts § 436A Comment b at 461-62 (1965).
Dean Prosser writes that the only valid objection against the type of recovery the majority would permit is the danger of “vexatious suits and fictitious claims.” Prosser, Torts § 55 at 347 (3d ed. 1964). Taking this objection first, the problem would be to set down standards which insure that only those claims which are based on satisfactory evidence are eligible for recovery. The majority fails to adopt a sufficiently stringent test to measure the “genuineness” and “seriousness” of mental distress in cases arising out of property damage in spite of the thoughtful criteria laid down by them. The “reasonable man” test is no limitation on a plaintiff’s potential liability for mental suffering. In fact it only exacerbates the *179 problem as juries can now be called upon to give damages for mental distress in many tort cases without restraint. To be distinguished from the majority’s standards are the presently accepted limits of requiring that physical injury accompany mental disturbance or that the mental disturbance be caused by peril or harm to another closely or intimately related to the person disturbed before compensation will be allowed. 1 2 Harper & James, The Law of Torts § 18.4 (1956) ; Restatement (Second) of Torts § 486 (1965). These are situations not involved in the present case and on which I would reserve judgment.
It further appears to me that when a person’s material possessions are threatened by the negligence of another, it cannot be said that the owner is within a foreseeable zone of “psychic” risk. Even though a person’s injury may be very real and can be proven, I would question the policy behind recognizing the value of an attachment to material possessions. This attachment should neither be encouraged by society nor made a basis for recovery in a court of law in an age when man has surrounded himself with a veritable plethora of material possessions approaching the limits of what even an affluent society needs or can afford. One might ask what is to distinguish this case from the possibility of recovery in a situation where a prized and revered automobile which other persons might consider a jalopy is destroyed or, if in the present case, a family heirloom or photograph album were ruined by the flooded home. Would recovery be possible in either example? It would be under the majority’s test if a “reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.”
*180 It should be noted that the majority consists of only one regular member of this court with two circuit judges sitting as substitutes while the dissent is signed by two regular members of this court. In saying this I do not intend to belittle the wisdom of the two learned circuit judges but it is obvious that until the full court sits and rules on another case of this nature, the question of recovery for emotional distress resulting from the loss of or damage to property is still subject to great uncertainty.
See e.g., Dillon v. Legg, 68 Cal. 2d 728 , 441 P.2d 912 , 69 Cal. Rptr. 72 (1968).