Non-Pecuniary Damages in American Tort and Contract Law

This article addresses and critically analyses the many pathways to recovery for non-pecuniary harm in American tort and contract law. Beginning with instances of physical injury, I discuss the traditional right to recover for pain and suffering, along with out-of-pocket loss—highlighting as well evolving related issues of conceptualizing loss of enjoyment of life, loss of consortium, and wrongful death recovery. In addition, critiques of allowing pain and suffering are discussed in the context of recent legislative activity that places ceilings on the recovery of non-pecuniary harm. Next, the article puts physical injury cases aside and surveys stand-alone emotional harm recovery, moving in roughly chronological order from the classic intentional tort scenarios of assault and false imprisonment to modern-day development of tort recovery for intentional and negligent infliction of emotional distress. The article rounds out the tort coverage by addressing non-pecuniary recovery aimed at the protection of personality interests: defamation and the right of privacy. Recovery of non-pecuniary loss in contract under American law is far more limited. Initially, the article discusses and explains the basis for the general rule of non-recovery and then turns to the principal category of exceptions that has arisen—the recognition of recovery where emotional disturbance is a particularly likely result of breach because of the highly personal nature of the contractual agreement.