Opinion
10-P-1223
11-01-2011
RONALD WATERMAN v. THEODORE WIENER & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Ronald Waterman appeals a motion judge's dismissal under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), of his Superior Court action against Theodore Wiener and American Institutional Supply, Inc., alleging breach of contract. Waterman's underlying claim is that the defendants supplied Waterman with a single earpiece instead of the pair of ear buds that he ordered. Waterman claims $50,000 in damages for emotional distress as a result of this breach. Emotional distress damages are 'generally not recoverable' in a contract action. John Hancock Mut. Life Ins. Co. v. Banerji, 447 Mass. 875, 888 (2006), citing McClean v. University Club, 327 Mass. 68, 76 (1951). However, a plaintiff may recover emotional damages from breaches of contract which involve physical harm, DiGiovanni v. Latimer, 390 Mass. 265, 271 (1983), or which result from intentional or reckless conduct that is 'extreme and outrageous.' Agis v. Howard Johnson Co., 371 Mass. 140, 144-145 (1976). Waterman has not alleged that he suffered any physical harm from the breach. Nor has Waterman alleged that the defendants intentionally or recklessly engaged in acts which could be deemed extreme and outrageous conduct, even assuming that because of the defendants' breach of contract, he was unable to listen to his radio while he was incarcerated and in solitary confinement. Waterman thus cannot recover damages for emotional distress. In light of this, we need not address the issue whether Waterman's earlier small claims case in the District Court precludes him from bringing his present claim.
In addition, an earlier Superior Court judge did not, as Waterman alleges, abuse his discretion in allowing the defendants twenty days to file an answer from the time of the order vacating an earlier dismissal for insufficient service of process. The record also does not support Waterman's allegation that he was not given leave to amend his complaint. Waterman's further allegations are without merit.
Judgment affirmed.
By the Court (Rapoza, C.J., Cohen & Agnes, JJ.),