Damages for Emotional Distress in Construction Defect Cases?


Traditionally, courts have not allowed a claimant to recover damages for emotional distress in actions regarding construction defects. However, more and more courts are beginning to consider these damages if accompanied by extrinsic circumstances.

Mississippi is appropriate to examine as Harper Whitwell PLLC is proud to call Oxford home.  When a party intentionally conducts itself in a manner which evokes outrage or revulsion and such reaction is reasonably foreseeable, an award for damages for emotional distress is warranted. Cherry Bark Builders v. Wagner, 781 So. 2d 919, 923 (Miss. Ct. App. 2001).  In this case, evidence was considered which showed the contractor knew the owner was upset throughout the duration of the improper construction.  Further, the contractor lied to the owner, the owner had to wait months for relief, had to employ and attorney to deal with the settlement, and was faced with having to settle with less than she bargained for.  See David W. Mockbee, Construction Law, 278 (Second ed. 2007) (citing Cherry Bark Builders, 781 So. 2d at 923).  Court’s Opinion here.

Other courts have found causes of action in similar circumstances which usually consist of at least some of the following circumstances:   Intentional misrepresentation or verbal aggression, reckless disregard, and special circumstances which render the Plaintiff vulnerable.

South Carolina is home to Harper Whitwell’s other location, so we will examine Hansson v. Scalise Builders of South Carolina, 374 S.C. 352, 650 S.E.2d 68 (2007).   In Hansson , the court examine four factors:  1) the defendant intentionally or recklessly inflicted severe emotional distress, or was certain, or substantially certain, that such distress would result from his conduct; (2) the conduct was so “extreme and outrageous” so as to exceed “all possible bounds of decency” and must be regarded as “atrocious, and utterly intolerable in a civilized community;” (3) the actions of the defendant caused plaintiff’s emotional distress; and (4) the emotional distress suffered by the plaintiff was “severe” such that “no reasonable man could be expected to endure it.”  

As the language suggests, South Carolina allows the tort in very limited circumstances.

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