Let us imagine that your client, or loved one, is excluded from a commercial establishment, restaurant, or coffee shop on the basis of race, ethnicity, or national origin. Are they entitled to damages for pain and suffering? How, under such circumstances, would an injured plaintiff suffer such pain and suffering? It is interesting to note how psychologists would actually opine that an individual would actually suffer “pain” from the “exclusion.”
Here is California law:
“If a cause of action is otherwise established, it is settled that damages may be given for mental suffering naturally ensuing from the acts complained of.” (State Rubbish etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330, 338 [240 P.2d 282].) In general, courts have not attempted to draw distinctions between the elements of “pain” on the one hand, and “suffering” on the other; rather, the unitary concept of “pain and suffering” has served as a convenient label under which a plaintiff may recover not only for physical pain but for fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal. (Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 433 [58 Cal.Rptr. 13, 426 P.2d 173]; Werchick, Unmeasurable Damages and a Yardstick (1966) 17 Hastings L.J. 263 [Emphasis added].)
Admittedly these terms refer to subjective states, representing a detriment which can be translated into monetary loss only with great difficulty. (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 511-512 [15 Cal.Rptr. 161, 364 P.2d 337] (dissenting opinion of Traynor, J.); McCormick on Damages (1935) pp. 318-319.) But the detriment, nevertheless, is a genuine one that requires compensation (Civ. Code, § 3333; State Rubbish etc. Assn. v. Siliznoff, supra, 38 Cal.2d 330), and the issue generally must be resolved by the “impartial conscience and judgment of jurors who may be expected to act reasonably, intelligently and in harmony with the evidence.” (Beagle v. Vasold (1966) 65 Cal.2d 166, 181 [53 Cal.Rptr. 129, 417 P.2d 673]; cf. Seffert v. Los Angeles Transit Lines, supra, 56 Cal.2d 498, 507.)
Indeed, mental suffering frequently constitutes the principal element of tort damages (Rest. 2d Torts, § 905, com. c); awards which fail to compensate for pain and suffering have been held inadequate as a matter of law. (Clifford v. Ruocco (1952) 39 Cal.2d 327, 329 [246 P.2d 651]; Haskins v. Holmes (1967) 252 Cal.App.2d 580, 586-587 [60 Cal.Rptr. 659]; Buniger v. Buniger (1967) 249 Cal.App.2d 50, 54 [57 Cal.Rptr. 1]; Gallentine v. Richardson (1967) 248 Cal.App.2d 152, 155 [56 Cal.Rptr. 237]; Chinnis v. Pomona Pump Co. (1940) 36 Cal.App.2d 633, 642-643 [98 P.2d 560]; Bencich v. Market St. Ry. Co. (1937) 20 Cal.App.2d 518, 522 [67 Cal.Rptr. 398].)
See also Capelouto v.Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892–893; CACI 3905A.
Now, what expert evidence could you proffer that “social exclusion” actually causes pain?
“In fact, as demonstrated in an fMRI experiment, social exclusion activates the same circuitry as physical pain… at one point they stopped sharing, only throwing back and forth to each other, ignoring the participant. This small change was enough to elicit feelings of social exclusion, and it activated the anterior cingulate and insula, just like physical pain would. ” The Upward Spiral: Using Neuroscience to Reverse the Course of Depression, One Small Change at a Time . Alex Korb PhD, March 1, 2015.
If you have been injured and are seeking recovery for all your damages, including pain and suffering, you need an aggressive and informed attorney as your advocate. Do not hesitate to contact the law Office of Robert Rodriguez!
Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.
* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law. Robert Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.