Sullivan v. O’Connor

Brief Fact Summary. P, a professional entertainer, secured a jury verdict against D, a surgeon, for breach of contract in respect to an operation upon the P’s nose.

Synopsis of Rule of Law. Expectation interests, restitution interests and reliance interests are used in measuring damages to put the promisee in the position in which she would have been had the promise been performed.

Facts. Sullivan (P) entered into a contract with O’Connor (D), wherein D promised to perform two surgeries on P’s nose to enhance P’s appearance. After three surgeries on P’s nose, D failed to achieve the promised results. The surgeries performed by D actually worsened P’s appearance and further surgery would not improve P’s condition. The judge instructed the jury that: (1) P was entitled to recover her out-of-pocket expenses; (2) P could recover damages flowing directly, naturally, proximately, and foreseeably from the D’s breach; and, (3) P could be awarded pain and suffering on the third operation, but not the first two operations. The jury verdict awarded P $13,500. D appealed, claiming that the judge erred in allowing the jury to take into account anything but P’s out-of-pocket expenses.

Issue. Is P entitled to recover for the worsening of her condition and for the pain and suffering and mental distress involved in the third operation?

Held. Yes. Judgment affirmed.
Some courts view the promise by a physician like an ordinary commercial promise and permit a successful plaintiff to recover expectancy damages. Expectancy damages are measured by an amount of money intended to put the plaintiff in the position he would have been in had the contract been performed. Instead of expectancy damages, a successful plaintiff may elect restitution damages. Restitution damages are measured by an amount of money corresponding to any benefit conferred by the plaintiff upon the defendant in the performance of the contract disrupted by the defendant’s breach. Here, the court found restitution damages to be too meager.

Other cases have indicated that reliance damages are to be applied in patient-physician actions on breach of alleged special agreements. Reliance damages are measured by an amount of money to put the plaintiff back in the position he occupied just before the parties entered upon the agreement. Reliance damages compensate the plaintiff for the detriments she suffered in reliance upon the agreement.

There is no general rule of law that recovery for pain and suffering or mental distress under reliance damages is barred, particularly when under the circumstance those damages were foreseeable. The mere fact that P agreed to go through some pain and suffering because of the initial operation does not change the fact that she went through additional pain and suffering in attempts to fix the problems created by D’s breach of contract. P was not confined to the recovery of her out-of-pocket expenses. P was entitled to recover for the worsening of her condition and the pain and suffering and mental distress involved in the third operation. These items were compensable on either an expectancy or a reliance view.

Discussion. The promisee is often said to receive “the benefit of the bargain” and the interest that is protected is called the expectation interest. The promisee has a reliance interest if she has changed her position to her detriment in reliance on the promise. The promisee has a restitution interest if she has not only relied on the promise but has conferred a benefit on the promisor.