Kondaurov v. Kerdasha

Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Russell, S.J.

VLADIMIR KONDAUROV, ET AL. OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 042077 April 21, 20061

EVE I. KERDASHA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
J. Howe Brown, Jr., Judge Designate
Upon rehearing pursuant to order entered November 10, 2005

In this appeal from a judgment for the plaintiff in a

personal injury case, the dispositive question is whether the

jury was permitted to consider non-recoverable elements in

awarding damages for emotional distress.

Facts

The facts will be stated in the light most favorable to the

plaintiff, the prevailing party at trial. On November 16, 1998,

Eve I. Kerdasha, the plaintiff, was driving a Jeep Grand

Cherokee on Route 110 in Arlington County. She was following a

car driven by her boyfriend, David Postlewaite. Behind the

plaintiff was a large tour bus belonging to the Embassy of the

Russian Federation (the Embassy) and driven by Vladimir

Kondaurov, an employee of the Embassy acting within the scope of

1
The prior opinion rendered September 16, 2005, reported at
270 Va. 356, 619 S.E.2d 457 (2005), was withdrawn and reargument
was granted by the Order of November 10, 2005.
his employment. The vehicles were all traveling southbound at

55-60 miles per hour.

Traffic ahead of Postlewaite began to slow, evidently

because sirens could be heard coming from emergency vehicles

about to enter Route 110 from a ramp on the right. Postlewaite

and the plaintiff also slowed, but the bus failed to do so and

struck the rear of the plaintiff’s Jeep, causing it to strike

the rear of Postlewaite’s car in turn. This second impact

caused the plaintiff’s vehicle to fall over onto its side and

skid rapidly into the path of an ambulance coming down a sharply

curving ramp onto Route 110. The ambulance then struck the

plaintiff’s Jeep with sufficient force that the Jeep “flipped

over onto its roof.”

The paramedics in the ambulance ran to the plaintiff and

found her “hanging upside-down by the seatbelt.” She was

conscious but “very upset,” “crying . . . and just very shaky.”

The paramedics asked her if she was hurt and she said “a little

bit, that she didn’t think she was, but she had a medical

condition. And she kept asking where her dog was, because . . .

she had a dog in the car.”

The plaintiff had been diagnosed with multiple sclerosis

some years before the accident and also suffered from emotional

problems including depression and a generalized anxiety

disorder. These conditions sometimes resulted in “stress

2
attacks” that caused her to fall and to lose temporary control

of her arms and legs. About 18 months before the accident, she

had acquired a dog, named “Sushi,” primarily to help her

maintain emotional stability and prevent or moderate her “stress

attacks.” She developed a very strong emotional attachment to

the dog. Her psychiatrist described the relationship as “like a

mother/child unit.” A witness testified that the plaintiff and

Sushi “were inseparable. . . . Sushi was Eve’s very best friend

in the world. . . . [T]he most unconditional source of love in

Eve’s life, period.”

Sushi was not in the Jeep when the witnesses approached it

after the impact, having evidently been ejected through the open

sunroof or a broken window. Postlewaite saw the dog running

south on Route 110 but was unable to catch it. He noticed that

its tail had been “cut.” He approached the plaintiff, who told

him to “just go find Sushi.” Postlewaite saw the plaintiff in

the hospital some two hours later and noticed that she was “very

upset” and “reiterated that she wanted me to find Sushi.” After

a long search, Postlewaite found the dog in a veterinary

hospital where some kind person had taken her after finding her

wandering about in a residential area. The dog’s tail had been

injured and had to be partially amputated.

The plaintiff sustained few apparent physical injuries.

She received pain-relieving medications for bruises and

3
contusions. She was released from the hospital with a neck

brace that she wore for several weeks to relieve cervical

stiffness and soreness. Her symptoms of multiple sclerosis

worsened considerably, however, in the months after the

accident. In the opinion of her neurologist, those symptoms

were causally related to the emotional trauma she had sustained

as a result of the accident. He testified that, by contrast,

“physical trauma seems to have no effect on the course of

multiple sclerosis.”

Proceedings

The plaintiff brought this action for personal injuries

against Kondaurov and the Embassy.2 The defendants conceded

liability and the case was tried to a jury on the sole issue of

damages. The jury returned a verdict for the plaintiff and

fixed her damages at $300,000. We awarded the defendants an

appeal.

There are three assignments of error: (1) Whether the trial

court erred in denying the defendants’ motion to strike the

evidence relating to the plaintiff’s emotional distress caused

by the injury to her dog, (2) whether the court erred in

refusing to instruct the jury that damages could not be awarded

2
The case was matured against the Embassy and the Minister
of Foreign Affairs for the Russian Federation pursuant to the
Foreign Sovereign Immunities Act, 28 U.S.C §§ 1602 through 1611
(2000 ed. & Supp. II 2002).

4
for emotional distress the plaintiff suffered because of her

concern for the dog, and (3) whether the court erred in

instructing the jury that the defendants were responsible for

all the injurious consequences of their negligence “even though

they might not reasonably have been expected to result.”

The record of the trial is replete with references to the

dog.3 In plaintiff's opening statement to the jury, counsel

stated that “part of this case, and part of the damages that

. . . we’re going to present to you, was Sushi was in the

vehicle when it was struck. . . . And Sushi flew out of the car.

. . . [S]he was gone and missing. And you will hear from Ms.

Kerdasha and her treating psychiatrist . . . about how missing

Sushi and not knowing where Sushi was for approximately 14

hours, how that affected Eve.” Defense counsel made no

objection to this, but in his opening statement made reference

to a deposition wherein the psychiatrist stated that he had

treated the dog as well as the plaintiff.

During the plaintiff’s case, witnesses testified that the

emotional bond between the plaintiff and her dog was extremely

close. Several witnesses stated that the dog suffered such a

3
Sushi attended the trial. Plaintiff’s counsel represented
that she was a “service dog” as defined in Code § 51.5-44(E),
and that the plaintiff relied on her for assistance. The court
entered an order, to which the defense agreed, permitting her to
accompany the plaintiff on condition that there would be “no
growling or hostility toward the defense counsel.”

5
shock as a result of the accident that she would cower under a

bed or hide in a closet when she heard a siren outside. They

added that the plaintiff had become distraught because of the

dog’s condition and would have to go under the bed or into the

closet and stay there with the dog to comfort her. The

plaintiff’s psychiatrist testified as an expert witness that the

plaintiff was “devastated by what happened emotionally and by

what happened to her dog.” His opinion was that the effects of

the accident had made the plaintiff’s underlying depression and

anxiety disorder more difficult to treat and had created an

“almost catastrophic downhill ride for her,” leaving her subject

to “feelings of fear, feelings of danger, feelings of terror,

cinematic tension, tremor, motor tics.”

Defense counsel made no objection to this evidence as it

was presented, but at the close of the plaintiff’s case, moved

the court to strike the evidence insofar as it related to “the

condition of the dog [or] fear arising out of loss of the

dog. . . . [T]he law is very clear that there can be no

emotional distress, anxiety damages flowing from witnessing

. . . injury to another.” The court denied the motion. Defense

counsel renewed it at the close of all the evidence and it was

again denied.

The defense tendered the following instruction:

6
 Instruction T

The Court instructs the jury that in considering the
question of the Plaintiff’s damages, the law of
Virginia provides that Plaintiff may not recover for
emotional or mental anguish she claims to have
suffered either because of her concern for her dog’s
injuries in the accident or because of her concern for
the dog’s physical or emotional condition thereafter.

The court sustained the plaintiff's objection to that

instruction and refused it. The plaintiff offered the following

instructions:

Instruction No. 8

In determining the damages to which EVE KERDASHA
is entitled, you shall consider any of the following
which you believe by the greater weight of the
evidence was caused by the negligence of the
Defendant, VLADIMIR KONDAUROV.

(2) Any bodily injuries she sustained and their
effect on her health according to their degree and
probable duration;

(3) any physical pain and mental anguish she
suffered in the past and any that she may be
reasonably expected to suffer in the future;

(4) any disfigurement or deformity and any
associated humiliation or embarrassment;

(5) any inconvenience caused in the past and any
that probably will be caused in the future;

(6) any medical expenses incurred in the past;

(7) any veterinary bills incurred in the past.

Your verdict shall be for such sum as will fully
and fairly compensate EVE KERDASHA for the damages
sustained as a result of VLADIMIR KONDAUROV'S
negligence.

7
 Instruction No. 12

If you find that the Plaintiff, EVE KERDASHA had
a condition before the accident that was aggravated as
a result of the accident or that the pre-existing
condition made the injury she received in the accident
more severe or more difficult to treat, she may
recover for the aggravation and for the increased
severity or difficulty of treatment, but she is not
entitled to recover for the pre-existing condition.

Instruction No. 15

The defendants are liable for all the injurious
consequences to the plaintiff which naturally resulted
from the defendant's act, and it is immaterial that
all such consequences might not reasonably have been
expected to result.

The defense made no objection to Instructions 8 and 12, but

objected to Instruction 15 on the ground that all the elements

of damages the plaintiff was entitled to recover were fully

covered by Instructions 8 and 12 and that in the circumstances

of this case, Instruction 15 would "open up their consideration

of anything she considers injurious." The court overruled the

objection and granted all three of the plaintiff's tendered

instructions.

On appeal, the defense argues that the trial court

improperly permitted the jury to award damages to compensate the

plaintiff for her emotional distress arising from concern for

her dog while it was missing, as well as anguish over its

injuries and its condition after the accident. The defense

contends that under our law, an animal, however beloved it may

8
be to its owner, is personal property. The defense argues that

the measure of damages for an injury to personal property is the

difference in its fair market value before and after the injury,

and that its sentimental value to the owner cannot be recovered.

The plaintiff contends that the defense waived that

argument by failing to make a contemporaneous objection in the

trial court when evidence concerning the dog’s unique value to

the plaintiff was being offered. The plaintiff argues that in

any event, her pleadings never claimed any damages for her

emotional distress over the dog’s condition. She says that the

court’s rulings only permitted the jury to take into account the

totality of the circumstances of the accident to permit a fair

assessment of the emotional distress she suffered. She says

that the testimony concerning the dog was offered only to show

aggravation of her pre-existing medical and mental conditions.

Analysis

Waiver

Our contemporaneous objection rule, expressed by Rule 5:25,

provides: “Error will not be sustained to any ruling of the

trial court . . . unless the objection was stated with

reasonable certainty at the time of the ruling. . . .” An

objection to the admissibility of evidence must be made when the

evidence is presented. The objection comes too late if the

objecting party remains silent during its presentation and

9
brings the matter to the court’s attention by a motion to strike

made after the opposing party has rested. Poole v.

Commonwealth, 211 Va. 258, 259-60, 176 S.E.2d 821, 822-23

(1970). On the other hand, an objection to the sufficiency of

the evidence is properly made by a motion to strike, rather than

when the evidence is first offered. Id. Obviously, the

objecting party cannot be sure, nor can the court decide, until

the offering party has rested, whether the various fragments of

evidence have added up to a justiciable whole. See Vasquez v.

Mabini, 269 Va. 155, 162-63, 606 S.E.2d 809, 812-13 (2005).

Here, the plaintiff was entitled to show the totality of

the circumstances of the accident. The evidence concerning what

happened to the dog during the collisions was admissible to show

their violence and severity. Defense counsel was justified in

allowing it to be presented without objection. His motion to

strike challenged the sufficiency of the evidence only to

establish a particular element of damages, and thus was timely.

It was made as a predicate for the limiting instruction

(Instruction T) that was later offered to preclude an award of

damages for emotional distress arising from the plaintiff’s

concern for the dog. That is a position the defense maintained

consistently throughout the trial and it involves a question we

have not previously decided. The motion to strike thus met one

of the primary purposes of the contemporaneous objection rule:

10
To afford the trial judge a fair opportunity to correct errors

while the case is still before the trial court. See Vasquez,

269 Va. at 163, 606 S.E.2d at 813. We hold that the defendants’

position on appeal was not waived. For the reasons stated

below, however, the trial court did not err in denying the

motion.

Emotional Distress

(1) Background

We have held, for well over a century, that mental anguish

may be inferred from bodily injury and that it is not necessary

to prove it with specificity. Norfolk & W. Ry. Co. v. Marpole,

97 Va. 594, 599-600, 34 S.E. 462, 464 (1899). Mental anguish,

when fairly inferred from injuries sustained, is an element of

damages. Bruce v. Madden, 208 Va. 636, 639-40, 160 S.E.2d 137,

139 (1968).

In the present case, the plaintiff suffered physical

injury, albeit remarkably slight under the circumstances, as a

proximate result of the defendants’ negligence. Thus, mental

anguish could be inferred by the jury and would constitute an

element of damages. The plaintiff makes no claim, however, that

her mental state after the accident, and the deterioration of

her physical condition, resulted from her relatively slight

bodily injuries. Her claimed damages relate almost entirely to

emotional trauma suffered as a result of the accident. The

11
question remains: What, if any, limitations apply to the

sources of emotional distress for which the plaintiff may be

compensated in damages?

(2) Instruction T

Here, the plaintiff was clearly entitled to be compensated

in damages for any emotional distress she suffered as a

consequence of the physical impact she sustained in the

accident. Such distress might include shock and fright at being

struck three times, turned over, left hanging upside down in her

seatbelt and experiencing physical pain. It might also include

anxiety as to the extent of her injuries, worry as to her future

well-being, her ability to lead a normal life and to earn a

living. It might include fear of disability, deformity, or

death. Such factors were proper subjects for the jury’s

consideration because they might fairly be inferred from the

physical impact of the collisions upon her person. They might

also be taken into account as factors causing exacerbation of

her pre-existing mental and physical conditions.

Injury to, or loss of, a plaintiff’s personal property, as

a result of a defendant’s negligence, stands upon a different

footing. Damages for such losses are confined to the diminution

in the value of the property resulting from the accident, plus

reasonable and necessary expenses incurred. White Consolidated

Industry v. Swiney, 237 Va. 23, 30, 376 S.E.2d 283, 287 (1989).

12
 It is beyond debate that animals, particularly dogs and

cats, when kept as pets and companions, occupy a position in

human affections far removed from livestock. Especially in the

case of owners who are disabled, aged or lonely, an emotional

bond may exist with a pet resembling that between parent and

child, and the loss of such an animal may give rise to grief

approaching that attending the loss of a family member. The

fact remains, however, that the law in Virginia, as in most

states that have decided the question,4 regards animals, however

4
Most jurisdictions deny recovery of damages for emotional
distress arising from injury or death of animals caused by
ordinary negligence on the ground that animals are, at common
law, and sometimes by statute, deemed personal property. See,
e.g. Mitchell v. Heinrichs, 27 P.3d 309 (Alaska 2001); Roman v.
Carroll, 621 P.2d 307 (Ariz. Ct. App. 1980); Pantelopoulos v.
Pantelopoulos, 869 A.2d 280 (Conn. Super. Ct. 2005); Nichols v.
Sukaro Kennels, 555 N.W.2d 689 (Iowa 1996); Krasnecky v. Meffen,
777 N.E.2d 1286 (Mass. App. Ct. 2002); Koester v. VCA Animal
Hospital, 624 N.W.2d 209 (Mich. Ct. App. 2000); Fackler v.
Genetzky, 595 N.W.2d 884 (Neb. 1999); Harabes v. Barkery, Inc.,
791 A.2d 1142 (N.J. Super. Ct. App. Div. 2001); Fowler v. Town
of Ticonderoga, 516 N.Y.S.2d 368 (N.Y. App. Div. 1987); Strawser
v. Wright, 610 N.E.2d 610 (Ohio Ct. App. 1992); Daughen v. Fox,
539 A.2d 858 (Pa. Super. Ct. 1988); Miller v. Peraino, 626 A.2d
637 (Pa. Super. Ct. 1993); Petco Animal Supplies, Inc. v.
Schuster, 144 S.W.3d 554 (Tex. App. 2004); Pickford v. Maison,
98 P.3d 1232 (Wash. Ct. App. 2004); Julian v. De Vincent, 184
S.E.2d 535 (W. Va. 1971); Rabideau v. City of Racine, 627 N.W.2d
795 (Wis. 2001). But see Campbell v. Animal Quarantine Station,
632 P.2d 1066 (Haw. 1981). Some jurisdictions expressly permit
recovery of damages for emotional distress in cases of animals
injured or killed by willful, intentional, or outrageous torts.
See, e.g., La Porte v. Associated Independents, Inc., 163 So.2d
267 (Fla. 1964); Gill v. Brown, 695 P.2d 1276 (Idaho Ct. App.
1985); Burgess v. Taylor, 44 S.W.3d 806 (Ky. Ct. App. 2001);
Brown v. Crocker, 139 So.2d 779 (La. Ct. App. 1962).

13
beloved, as personal property. The General Assembly, in Code

§ 3.1-796.127, expressly declared: "All dogs and cats shall be

deemed personal property. . . .” That section also provides the

remedy for the injury of such an animal by allowing the owner

“to recover the value thereof or the damage done thereto in an

appropriate action at law. . . .” Our decisions have never

approved an award of damages for emotional distress resulting

from negligently inflicted injury to personal property,5 and the

General Assembly, having had such an opportunity when

considering Code § 3.1-796.127, evidently declined to do so. We

conclude that permitting such an award would amount to a

sweeping change in the law of damages, a subject properly left

to legislative consideration. It follows that the defendants’

Instruction T correctly stated the existing law and that the

trial court erred in refusing it.

(3) Instruction 15

The defendants objected to Instruction 15 on the grounds

that it was repetitive of Instructions 8 and 12 and that it

would permit the jury to award damages for "anything that [the

5
In C & O Ry. Co. v. May, 120 Va. 790, 797, 92 S.E. 801,
803 (1917), we approved an instruction telling the jury that the
owners of personal property destroyed by a defendant’s
negligence (family portraits, in that case) were not entitled to
recover “any sentimental value attached to it by the owners or
any peculiar value which they may have attached to the property
by reason of association or the like.”

14
plaintiff] considers injurious." We agree that the instruction

duplicated matter fully covered in Instructions 8 and 12.

Instructions 8 and 12, given without objection and not

challenged on appeal, have become the law of the case,

applicable, if the evidence supports them, to any future

proceedings on remand. An instruction given without objection

will not be disturbed on appeal, Rule 5:25, and becomes the law

of the case, governing all subsequent proceedings. “Under [the]

law of the case doctrine, a legal decision made at one [stage]

of the litigation, unchallenged in a subsequent appeal when the

opportunity to do so existed, becomes the law of the case for

future stages of the same litigation, and the parties are deemed

to have waived the right to challenge that decision at a later

time.” Virginia Vermiculite, Ltd. v. W.R. Grace & Co.-Conn.,

108 F.Supp.2d 549, 609 (W.D. Va. 2000).

It is axiomatic that a party is entitled to an instruction

that fully expresses his theory of the case, if it correctly

states the law and is supported by evidence, but he is not

entitled to have it repeated or emphasized by the court. See

Medlar v. Mohan, 242 Va. 162, 168-69, 409 S.E.2d 123, 127

(1991). Given without the limitation on its scope that

Instruction T would have provided, Instruction 15, in the

circumstances of this case, was an overbroad statement of the

law of damages. Because Instruction 15 was redundant and not so

15
limited by other instructions, it improperly permitted the jury

to award damages for the plaintiff’s mental anguish arising from

her concern for the dog, and thus the court erred in granting

it.

Conclusion

The defendants’ motion to strike raised a question of law,

not previously decided in Virginia, that the trial court, in its

discretion, could properly reserve for determination at the

stage of jury instructions. There was, therefore, no error in

the court’s decision to deny it and revisit the question at a

later stage of the trial. The court did, however, for the

reasons stated, err in denying Instruction T6 and in granting

Instruction 15.

Accordingly, the judgment of the trial court will be

reversed and the case remanded for further proceedings

consistent with this opinion, limited to the issue of damages.

Reversed and remanded.

6
Instruction T constitutes a limitation on Instructions 8
and 12. Therefore, if it is offered again during proceedings on
remand, it should be preceded by: “Notwithstanding any other
instructions given by the court,” or words of similar import.

16