In legal malpractice actions brought by individuals seeking damages for severe emotional distress, reputational injury was seen as an appropriate consideration or inquiry in assessing the foreseeability of emotional distress damages. See Burton v. Merrill, 612 A.2d 862, 865 (Me. 1992); Salley v Childs, 541 A.2d 1297, 1300-01 (Me. 1988). In Salley, the attorney allowed his client's horse training license to be suspended after an administrative proceeding, despite the existence of an absolute defense, and the suspension was published in local and national racing publications. 541 A.2d at 1299-1300.
[¶ 24] We have held that "a plaintiff may recover damages for severe emotional distress arising out of a legal malpractice action." McAlister v. Slosberg, 658 A.2d 658, 660 (Me. 1995); see also Burton, 612 A.2d at 865-66; Salley v. Childs, 541 A.2d 1297, 1300-01 (Me. 1988). In all legal malpractice cases where we have approved the recovery of damages for severe emotional distress, however, the actions involved, in addition to economic loss, egregious actions on the part of the defendant attorney, McAlister, 658 A.2d at 660; Burton, 612 A.2d at 864, 865; harm to the plaintiff's reputation, Burton, 612 A.2d at 865; Salley, 541 A.2d at 1300-01; or other personal losses, such as the deterioration of the plaintiff's marriage, Burton, 612 A.2d at 865.
In this case the jury instructions informed the jury that Hill would be entitled to recover noneconomic damages "insofar as they have been proved by a preponderance of the evidence and insofar as they were caused by" the Boatrights' conduct — conduct that the jury found to be negligent and to constitute a breach of fiduciary duty to Hill. In Salley v. Childs, 541 A.2d 1297, 1298 (Me. 1988), the court concluded that a client was entitled to recover noneconomic damages from an attorney in a legal malpractice action based on negligence. Other jurisdictions have recognized that in some circumstances clients may recover noneconomic damages in legal malpractice actions based upon conduct constituting breach of fiduciary duty. See, e.g., Stanley v. Richmond, 41 Cal.Rptr.2d 768, 784 (Cal.Ct.App. 1995); Perez v. Kirk Carrigan, 822 S.W.2d 261, 266-67 (Tex.Ct.App. 1991) (complaint also alleged negligent and intentional infliction of emotional distress); cf. CJI-Civ.3d 26:4 notes on use (instruction on actual damages for breach of fiduciary duty "specifically drafted" to permit court to apply noneconomic damages statute, section 13-21-102.5, 6A C.R.S. (1987 1995 Supp.).
Recent Maine Supreme Judicial Court cases have extended recovery for negligent infliction of severe emotional distress to cases even where "emotional distress damages are the only damages alleged." Salley v. Childs, 541 A.2d 1297, 1300 n. 2 (Me. 1988) (citing Gammon, 534 A.2d at 1285). The Maine SJC, however, has reiterated that in eliminating the requirements of an underlying tort or physical injury, it did not create a new claim on which relief could be granted.
Plaintiff further argues a trend has developed to allow noneconomic damages in legal malpractice cases if the jury determines they are foreseeable, citing Vincent v. DeVries, 2013 VT 34, 193 Vt. 574, 72 A.3d 886. See also Salley v. Childs, 541 A.2d 1297, 1301 (Me. 1988). Plaintiff urges this Court to rule that South Dakota is poised to follow that trend and to rule Plaintiff's noneconomic claim should go to the jury.
This conclusion is also consonant with the great weight of authority in other jurisdictions. See, e.g., Douglas v. Delp, 987 S.W. 2d 879 (Tex. 1999); Reed v. Mitchell Timbanard, P.C., 903 P.2d 621 (Ariz.App. 1995); Hanumadass v. Coffield, Ungaretti Harris, 724 N.E.2d 14 (Ill.App. 1999); Gautam v. De Luca, 521 A.2d 1343 (N.J.Super. 1987); Wehringer v. Powers Hall, P.C., 874 F. Supp. 425 (D. Mass. 1995). But see Salley v. Childs, 541 A.2d 1297 (Me. 1988). Hunt v. Mercy Medical Center, 121 Md. App. 516, 710 A.2d 362 (1998), a medical malpractice case relied upon by Schafer, is distinguishable on the ground that in Hunt the plaintiff had suffered physical injury, rather than property or commercial damage.
4. that the harm was foreseeable. See Salley v. Childs, 541 A.2d 1297 (Me. 1988); Gammon v. Osteopathic Hospital of Maine, Inc., 534 A.2d 1282 (Me. 1987). Despite the fact that several incidents of harassment occurred at PJC, the Court is persuaded that Defendants exercised reasonable care in keeping the workplace free from harassment.
Some of these courts permit awards of emotional distress damages in legal malpractice actions without regard to subject matter of the underlying representation. See, e.g., Beis v. Bowers, 649 So.2d 1094, 1096–97 (La.Ct.App.1995); Salley v. Childs, 541 A.2d 1297, 1300 (Me.1988); Gore v. Rains & Block, 189 Mich.App. 729, 473 N.W.2d 813, 819 (1991). A difficulty in evaluating some of these cases is that conflicting authority exists in these jurisdictions.
Some of these courts permit awards of emotional distress damages in legal malpractice actions without regard to subject matter of the underlying representation. See, e.g., Beis v. Bowers, 649 So. 2d 1094, 1096-97 (La. Ct. App. 1995); Salley v. Childs, 541 A.2d 1297, 1300 (Me. 1988); Gore v. Rains & Block, 473 N.W.2d 813, 819 (Mich. Ct. App. 1991). A difficulty in evaluating some of these cases is that conflicting authority exists in these jurisdictions.
Id. at 559. Finally, the Maine Supreme Court did conclude that a plaintiff who had temporarily lost his license to train horses as a result of defendant lawyer's malpractice could recover emotional distress damages, Salley v. Childs, 541 A.2d 1297, 1300 (Me.1988), but later limited the scope of that decision by tying its holding to the reputational harm the plaintiff in Salley had suffered. Garland v. Roy, 2009 ME 86, ¶¶ 24–27, 976 A.2d 940.