One of the most dynamic developments in modern tort law has been the increased focus on damages for emotional distress. During the past few decades courts have fashioned several new tort theories to allow recovery of emotional distress damages as independent causes of action. At the same time, lobbyists and legislators have attacked these damages for contributing to "runaway" jury verdicts. As a result of these attacks, a growing number of states are enacting statutes that limit recovery of emotional distress damages in traditional tort are as such as medical malpractice. Thus, damages for emotional distress are at a crossroads between broad trends of expansion and contraction.
One largely unexplored battleground for these conflicting trends is the awarding of emotional distress damages in commercial tort cases, particularly in cases of fraud and deceit. No judicial consensus exists on the propriety of awarding damages for emotional distress in fraud cases. Many jurisdictions limit damages for fraud to pecuniary injuries; this view. has had the most influence on legal commentators and treatise writers. Nevertheless, a substantial group of jurisdictions has awarded emotional distress damages in fraud cases. Few of the decisions on either side of this issue have examined closely other jurisdictions' treatment of the issue, and most of these decisions have not analyzed the policies favoring or opposing the award of emotional distress damages in fraud cases. Perhaps this lack of detailed consideration in the case law has been the greatest hindrance to the development of a judicial consensus.
Andrew L. Merrit,
Damages for Emotional Distress in Fraud Litigation: Dignitary Torts in a Commercial Society,
42 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol42/iss1/1