Discovering that your home has construction defects that will cost you time and money is undoubtedly very stressful for homeowners. Frequently, homeowners ask if they can recover money for emotional distress caused by construction defects or dealing with an obnoxious contractor.
Wisconsin Law On Emotional Distress
Wisconsin’s tort law recognizes a claim for damages where a bystander suffers great emotional distress after witnessing an accident or its gruesome aftermath involving death or serious injury to a close relative. The elements of the claim are: (1) that the defendant’s conduct (in the underlying accident) fell below the applicable standard of care, (2) that the plaintiff suffered an injury (severe emotional distress), and (3) that the defendant’s conduct was a cause-in-fact of the plaintiff’s injury.
Can I recover for Emotional Distress for Construction Defects Caused by Defective Work?
In Rabideau v. City of Racine, Wisconsin Courts observed that “it is unlikely that a plaintiff could ever recover for the emotional distress caused by negligent damage to his or her property.”
To bring such a claim, an individual must demonstrate that the contractor defectively performed work for the purpose of causing emotional distress to the homeowner. It is not enough for the destruction or damage to the home to cause emotional distress as a secondary effect.
Can I Recover For Emotional Distress if the Contractor Acts in an Obnoxious, Unpleasant or Rude Manner?
In Alsteen v. Gehl, the Wisconsin Supreme Court considered whether a contractor, while performing a job under an agreement, owes the customer a duty to conduct themselves in a manner that does not create an unreasonable risk of emotional harm in regard to the work product itself, but also their interpersonal contacts with the customer?
Essentially, the court considered whether the homeowner could recover damages for emotional distress when the contractor acts like a jerk.
In Alsteen, the homeowner hired the contractor to re-side her house and perform other home improvements. A dispute arose between the contractor and the homeowner after the contractor performed unauthorized work. Additionally, the contractor defectively installed windows, among other construction defects. After the homeowner complained, a heated argument occurred, which included the contractor telling the homeowner that she made him “sick” and then slammed down the phone. The homeowner then developed severe anxiety and depression and was administered electro-shock therapy for this condition.
The case was tried and the jury concluded that the contractor was responsible for causing emotional distress. The contractor, however, challenged the legal basis for the claim and argued that no such claim should exist under Wisconsin law.
The Wisconsin Supreme Court agreed with the contractor and held that allowing such a claim goes against public policy. The Court explained that everyone is subject to various degrees of emotional pressures and often people carelessly treat others in a manner likely to cause them emotional stress. If such conduct, were to be a basis of a lawsuit, each of us would be reinforcing the aggression and hostility we already possess and our society would be more abrasive than it already is.
We must conclude that the desirable goal of avoiding careless disregard for the feelings of others must be accomplished by some other means than a lawsuit.
The court further concluded that a contractor performing a personal-service contract carries with him his own feelings of hostility and his own set of emotional pressures. As result, there is no duty to undertake the performance of such work in a manner that would avoid the risk of inflicting emotional distress on the customer.
Given the Court’s decisions homeowners may recover damages for the cost of repairing defective construction. But they cannot recover damages for the emotional distress caused by the defective construction.