PRICE v HIGH POINTE OIL COMPANY, INC 

Docket No. 143831. Argued November 15, 2012 (Calendar No. 1). Decided March 21, 2013. 

 Beckie Price brought an action in the Clinton Circuit Court against High Pointe Oil 

Company, Inc., claiming, among other things, noneconomic damages for the mental anguish, 

emotional distress, and psychological injuries that she sustained when High Pointe negligently 

pumped 400 gallons of fuel oil into the basement of her house. The incident created an 

environmental hazard that required the razing of the house. Before the jury trial, High Pointe 

moved for summary disposition, in part on the issue of noneconomic damages, arguing that 

noneconomic damages resulting from real property damage were not compensable. The court, 

Randy L. Tahvonen, J., denied that part of High Pointe’s motion, concluding that noneconomic 

damages could be recovered in a negligence action. The jury awarded Price $100,000 for 

noneconomic damages, after which High Pointe moved for judgment notwithstanding the verdict 

and remittitur. The court denied the motion and High Pointe appealed. The Court of Appeals, 

BECKERING, P.J., and FORT HOOD and STEPHENS, JJ., affirmed, concluding that a plaintiff may 

recover mental anguish damages naturally flowing from damage to or the destruction of real 

property. 294 Mich App 42 (2011). The Supreme Court granted High Pointe’s application for 

leave to appeal. 491 Mich 870 (2012). 

 In an opinion by Justice MARKMAN, joined by Chief Justice YOUNG and Justices MARY 

BETH KELLY and ZAHRA, the Supreme Court held: 

 Michigan common law has long provided that the appropriate measure of damages in 

cases involving the negligent destruction of property is the cost of replacement or repair of the 

property. Because that rule is sound, any change in the rule must come by legislative alteration. 

 1. The common-law rule with respect to damages recoverable in an action alleging the 

negligent destruction of property is that if the injury is permanent or irreparable, the measure of 

damages is the difference in the property’s market value before and after the injury, but if the 

injury is reparable and the expense of making repairs is less than the value of the property, the 

measure of damages is the cost of making repairs. Because replacement and repair costs reflect 

economic damages, the logical implication of this rule is that the measure of damages excludes 

noneconomic damages. No previous case in the history of Michigan’s common law has 

approvingly discussed the recovery of noneconomic damages for the negligent destruction of 

property. Further, recent Court of Appeals precedent has disallowed recovery of damages for 

emotional injuries suffered as a consequence of personal property damage. There was no legally 

Michigan Supreme Court

Lansing, Michigan

Syllabus Chief Justice: 

Robert P. Young, Jr. 

Justices: 

Michael F. Cavanagh 

Stephen J. Markman 

Mary Beth Kelly 

Brian K. Zahra 

Bridget M. McCormack 

David F. Viviano 

This syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

Reporter of Decisions: 

John O. Juroszek 
relevant basis that would logically justify prohibiting the recovery of noneconomic damages for 

the negligent destruction of personal property but allow it for the negligent destruction of real 

property. 

 2. A common-law rule remains the law until modified by the Michigan Supreme Court 

or the Legislature. Alteration of the common law by the Court should be approached cautiously 

with the fullest consideration of public policy and should not occur through sudden departure 

from longstanding legal rules. While the destruction of property or property damage will often 

engender considerable mental distress, the present rule denying recovery for that distress is 

rational and justifiable as a matter of reasonable public policy. Given the lack of any compelling 

argument for altering the common law, retention of the rule was appropriate. 

 Judgment of the Court of Appeals reversed and case remanded to the trial court for entry 

of summary disposition in High Pointe’s favor. 

 Justice CAVANAGH took no part in the decision of this case because of a familial 

relationship with counsel of record. 

 Justices MCCORMACK and VIVIANO took no part in the decision of this case. 

©2013 State of Michigan 
FILED MARCH 21, 2013 

S T A T E O F M I C H I G A N 

SUPREME COURT 

BECKIE PRICE, 

 Plaintiff-Appellee, 

v No. 143831 

HIGH POINTE OIL COMPANY, INC, 

 Defendant-Appellant. 

BEFORE THE ENTIRE BENCH (except CAVANAGH, MCCORMACK, and VIVIANO, JJ.) 

MARKMAN, J. 

 The issue in this case is whether noneconomic damages are recoverable for the 

negligent destruction of real property. No Michigan case has ever allowed a plaintiff to 

recover noneconomic damages resulting solely from the negligent destruction of 

property, either real or personal. Rather, the common law of this state has long provided 

that the appropriate measure of damages in cases involving the negligent destruction of 

property is simply the cost of replacement or repair of the property. We are not 

persuaded of the need for change and therefore continue to adhere to this rule. 

Michigan Supreme Court

Lansing, Michigan

Opinion Chief Justice: 

Robert P. Young, Jr. 

Justices: 

Michael F. Cavanagh 

Stephen J. Markman 

Mary Beth Kelly 

Brian K. Zahra 

Bridget M. McCormack 

David F. Viviano 
2

Accordingly, we reverse the judgment of the Court of Appeals and remand this case to 

the trial court for entry of summary disposition in defendant’s favor. 

I. FACTS AND HISTORY 

In 1975, plaintiff and her now ex-husband built a house in DeWitt, Michigan. The 

house was originally heated by an oil furnace located in the basement, but in 2006 

plaintiff replaced the oil furnace with a propane furnace. Plaintiff canceled her contract 

with defendant oil company’s predecessor when the propane furnace was installed. 

Although the oil furnace was removed, the oil fill pipe remained. 

Somehow, in November 2007, plaintiff’s address was placed on defendant’s “keep 

full list.” True to the name of the list, while plaintiff was at work, defendant’s truck 

driver pumped nearly 400 gallons of fuel oil into plaintiff’s basement through the oil fill 

pipe before realizing his mistake and immediately calling 911. Plaintiff’s house and 

many of her belongings were destroyed. Between defendant’s and plaintiff’s insurers, the 

site was remediated, a new house was built on the property in a different location, 

plaintiff’s personal property was cleaned or replaced, and plaintiff was reimbursed for all 

temporary-housing-related expenses. It is undisputed that plaintiff was fully 

compensated for her economic losses. 

 Nevertheless, plaintiff filed suit in August 2008, alleging claims for negligence, 

gross negligence, negligent infliction of emotional distress, nuisance, trespass, and a 

private claim under the Natural Resources and Environmental Protection Act, MCL 

324.101 et seq. However, plaintiff’s only claim to survive to trial was for the recovery of 

noneconomic damages for defendant’s negligent destruction of her real property. After 
3

trial and over defendant’s objection, a jury found in favor of plaintiff in the amount of 

$100,000 for past noneconomic damages. Defendant moved for judgment 

notwithstanding the verdict and remittitur, arguing that plaintiff had failed to present 

sufficient proofs to support the verdict. The trial court denied the motion, and defendant 

appealed. The Court of Appeals affirmed in a published decision, explaining: 

 Noneconomic damages are generally recoverable in tort claims, and 

we are not convinced that noneconomic damages stemming from damage to 

or destruction of real property must or should be excepted from that general 

rule. We conclude that in negligence actions, a plaintiff may recover 

mental anguish damages naturally flowing from the damage to or 

destruction of real property. [Price v High Pointe Oil Co, Inc, 294 Mich 

App 42, 60; 817 NW2d 583 (2011).] 

Defendant applied for leave to appeal in this Court. We granted leave and subsequently 

heard oral argument. Price v High Pointe Oil Co, Inc, 491 Mich 870 (2012). 

II. STANDARD OF REVIEW 

 Whether noneconomic damages are recoverable for the negligent destruction of 

real property presents a question of law, which this Court reviews de novo. See 2000 

Baum Family Trust v Babel, 488 Mich 136, 143; 793 NW2d 633 (2010). 

III. ANALYSIS 

 The question in this case is whether noneconomic damages are recoverable for the 

negligent destruction of real property. Absent any relevant statute, the answer to that 

question is a matter of common law. 

A. COMMON LAW 

As this Court explained in Bugbee v Fowle, the common law “‘is but the 

accumulated expressions of the various judicial tribunals in their efforts to ascertain what 
4

is right and just between individuals in respect to private disputes[.]’” Bugbee v Fowle,

277 Mich 485, 492; 269 NW 570 (1936), quoting Kansas v Colorado, 206 US 46, 97; 27 

S Ct 655; 51 L Ed 956 (1907). The common law, however, is not static. By its nature, it 

adapts to changing circumstances. See Holmes, The Common Law (Mineola, New York: 

Dover Publications, Inc., 1991), p 1 (noting that the common law is affected by “[t]he felt 

necessities of the time, the prevalent moral and political theories, [and] intuitions of 

public policy” and that it “embodies the story of a nation’s development through many 

centuries”). And as this Court stated in Beech Grove Investment Co v Civil Rights 

Comm: 

It is generally agreed that two of the most significant features of the 

common law are: (1) its capacity for growth and (2) its capacity to reflect 

the public policy of a given era. . . . 

* * * 

 “The common law does not consist of definite rules which are 

absolute, fixed, and immutable like the statute law, but it is a flexible body 

of principles which are designed to meet, and are susceptible of adaption to, 

among other things, new institutions, public policies, conditions, usages 

and practices, and changes in mores, trade, commerce, inventions, and 

increasing knowledge, as the progress of society may require. So, changing 

conditions may give rise to new rights under the law . . . .” [Beech Grove 

Investment Co v Civil Rights Comm, 380 Mich 405, 429-430; 157 NW2d 

213 (1968), quoting 15A CJS, Common Law, § 2, pp 43-44.] 

The common law is always a work in progress and typically develops incrementally, i.e., 

gradually evolving as individual disputes are decided and existing common-law rules are 

considered and sometimes adapted to current needs in light of changing times and 

circumstances. In re Arbitration Between Allstate Ins Co & Stolarz, 81 NY2d 219, 226; 

597 NYS2d 904; 613 NE2d 936 (1993) (noting that the common law evolves through the 
5

“incremental process of common-law adjudication as a response to the facts presented”);1

see also People v Aaron, 409 Mich 672, 727; 299 NW2d 304 (1980) (“Abrogation of the 

felony-murder rule is not a drastic move in light of the significant restrictions this Court 

has already imposed. Further, it is a logical extension of our decisions . . . .”); Woodman 

v Kera LLC, 486 Mich 228, 267-268; 785 NW2d 1 (2010) (MARKMAN, J., concurring in 

part and dissenting in part). 

The common-law rule with respect to the damages recoverable in an action 

alleging the negligent destruction of property was set forth in O’Donnell v Oliver Iron 

Mining Co, 262 Mich 470; 247 NW 720 (1933). O’Donnell provides: 

 “If injury to property caused by negligence is permanent or 

irreparable, [the] measure of damages is [the] difference in its market value 

before and after said injury, but if [the] injury is reparable, and [the] 

expense of making repairs is less than [the] value of [the] property, [the] 

measure of damages is [the] cost of making repairs.” [Tillson v Consumers 

Power Co, 269 Mich 53, 65; 256 NW 801 (1934), quoting O’Donnell, 262 

Mich at 471 (syllabus).][2]

 

1

 See also Kestin, The bystander’s cause of action for emotional injury: Reflections on 

the relational eligibility standard, 26 Seton Hall L R 512, 512 (1996) (“Growth in the 

common law is incremental, often scarcely noticeable in the short run, but inexorable 

when viewed in the long term.”); Davis v Moore, 772 A2d 204, 238 (DC, 2001) (Ruiz, J., 

dissenting) (“It cannot be forgotten that the incremental pace at which common law 

develops, coupled with the increasing importance of statutory law, ensures that cases 

where truly ‘new’ rules of common law are announced . . . will not frequently occur.”). 

2 Tillson quoted O’Donnell’s syllabus. The portion of the opinion from which the 

statement in the syllabus was derived provided: 

 As the case must go back for a new trial, on account of the errors 

pointed out, we also call attention to another alleged error. The court 

instructed the jury that, if it found that the injury to plaintiff’s property was 

caused by defendant’s negligence, the damages should represent the 

difference between the market value of the house at the date of the injury 
6

Accord William R Roach & Co v Blair, 190 Mich 11, 16-17; 155 NW 696 (1916) 

(approving as being in accordance with the “general rule” the trial court’s articulation of 

damages as “‘the fair cash value at said time and place of said property which was 

destroyed by said fire, and the diminution in value of property injured and not 

destroyed’”); Davidson v Michigan C R Co, 49 Mich 428, 431; 13 NW 804 (1882) (“[I]n 

the case of domestic animals injured, the proper rule of damages, as in the case of other 

perishable chattels, should usually be the reduced value at the time. . . . [T]he difference 

between the value before and after the accident will enable the owner to be fully 

indemnified.”); Guzowski v Detroit Racing Ass’n, Inc, 130 Mich App 322, 328; 343 

NW2d 536 (1983) (citing Davidson for the conclusion that the proper measure of

damages was the difference in market value of a horse after it was injured from its 

 

and that value it would have had if the property had remained undamaged. 

This is the measure of recovery only where the injury is permanent. No 

instruction was given as to what the measure of damages should be in case 

the jury found the injuries were reparable, nor did defendant make any 

showing as to the cost of full restoration and repair of the house. 

Apparently, plaintiff tried the case on the theory that the damage was 

permanent and irreparable. Nevertheless, if defendant shows that the 

property can be repaired and restored to the condition it would have been in 

had it not been damaged by the subsidence, and also gives proper testimony 

as to the cost of the repairs, the court should make it clear to the jury that 

the question as to the permanency of the damage, and, if reparable, the cost 

of repairs, is one of fact for them to decide, if they conclude that defendant 

was responsible for the damages. [O’Donnell, 262 Mich at 476-477, going 

on to cite Berkey v Berwind-White Coal Mining Co, 229 Pa 417, 428; 78 A 

1004 (1911).] 
7

preinjury market value); Fite v North River Ins Co, 199 Mich 467, 471; 165 NW 705 

(1917) (indicating the primacy of market value in assessing damages). 

 Michigan common law has continually followed the O’Donnell rule. See Tillson,

269 Mich at 65; Jackson Co Rd Comm’rs v O’Leary, 326 Mich 570, 576; 40 NW2d 729 

(1950); State Hwy Comm’r v Predmore, 341 Mich 639, 642; 68 NW2d 130 (1955); 

Wolverine Upholstery Co v Ammerman, 1 Mich App 235, 242; 135 NW2d 572 (1965); 

Bayley Products, Inc v American Plastic Products Co, 30 Mich App 590, 598; 186 

NW2d 813 (1971) (“It is the settled law of this state that the measure of damages to real 

property, if permanently irreparable, is the difference between its market value before and 

after the damage.”); Baranowski v Strating, 72 Mich App 548, 562; 250 NW2d 744 

(1976); Bluemlein v Szepanski, 101 Mich App 184, 192; 300 NW2d 493 (1980); 

Strzelecki v Blaser’s Lakeside Indus of Rice Lake, Inc, 133 Mich App 191, 193-194; 348 

NW2d 311 (1984); see also People v Hamblin, 224 Mich App 87, 94; 568 NW2d 339 

(1997) (analogizing to civil property-loss cases, including Baranowski, in order to 

determine how to measure damages in a criminal case); 2 Michigan Law of Damages & 

Other Remedies (3d ed), § 19.18, p 19-13 (“[T]he measure of damages for injury to real 

property generally is the difference between the market value of the property before and 

after the injury to the property.”); 7 Michigan Civil Jurisprudence (2009 rev), § 50, p 379 

(“The measure of damages for negligent injury to real property, if permanent and 

irreparable is the difference between its market value before and after the damage.”). 

Accordingly, the long-held common-law rule in Michigan is that the measure of damages 
8

for the negligent destruction of property is the cost of replacement or repair.3

 Because 

replacement and repair costs reflect economic damages, the logical implication of this 

 

3

 A substantially similar, market-based approach to damages is employed by a number of 

other states, for example: 

(1) Alabama: “The proper measure of compensatory damages in a tort action 

based on damage to real property is the difference between the fair market value of the 

property immediately before the damage and the fair market value immediately after the 

damage.” Birmingham Coal & Coke Co, Inc v Johnson, 10 So 3d 993, 998 (Ala, 2008) 

(citations and quotation marks omitted). 

 (2) Colorado: “In cases involving damage to property, . . . the ordinary measure of 

damages is the diminution of market value of the property.” Goodyear Tire & Rubber Co 

v Holmes, 193 P3d 821, 827 (Colo, 2008). 

 (3) Georgia: “[A]s a general rule the measure of damages in actions for real 

property is the difference in value before and after the injury to the premises[.]” Royal 

Capital Dev, LLC v Maryland Cas Co, 291 Ga 262, 264; 728 SE2d 234 (2012) (citation 

omitted). 

 (4) Idaho: “If land is taken or the value thereof totally destroyed, the owner is 

entitled to recover the actual cash value of the land at the time of the taking or 

destruction . . . .” Nampa & Meridian Irrigation Dist v Mussell, 139 Idaho 28, 33; 72 

P3d 868 (2003) (citation and quotation marks omitted). 

 (5) Kansas: “The ordinary measure of damages to real property is the difference in 

value immediately before and after the damage and, in the event of total destruction, the 

fair market value at the time of the destruction.” Evenson v Lilley, 295 Kan 43, 52; 282 

P3d 610 (2012). 

 (6) New Mexico: “[T]he market value for lost or destroyed property is the proper 

measure of damages . . . .” Castillo v Las Vegas, 2008 NMCA 141, ¶ 31; 145 NM 205, 

214; 195 P3d 870 (NM App, 2008). 

 (7) Oklahoma: “[W]here damages are of a permanent nature, the measure of 

damage is the difference between the actual value immediately before and immediately 

after the damage is sustained.” Schneberger v Apache Corp, 1994 OK 117, ¶ 10; 890 

P2d 847, 849 (Okla, 1994) (citations and quotation marks omitted). 
9

rule is that the measure of damages excludes noneconomic damages and the latter are not 

recoverable for the negligent destruction of property.4

 See also 4 Restatement Torts, 2d, 

 

 (8) Pennsylvania: “The proper measure of damages in a case where the injury to 

the property was permanent is the market value of the property immediately before the 

injury.” Oliver-Smith v Philadelphia, 962 A2d 728, 730 (Pa Cmwlth, 2008). 

 (9) South Carolina: “[T]he general rule is that in case of an injury of a permanent

nature to real property . . . the proper measure of damages is the diminution of the market 

value by reason of that injury . . . .” Yadkin Brick Co, Inc v Materials Recovery Co, 339 

SC 640, 645; 529 SE2d 764 (SC App, 2000) (citation and quotation marks omitted). 

 (10) Texas: “As a rule, [the recoverable value of property] is measured by the 

property’s market value or the cost of repairing it.” City of Tyler v Likes, 962 SW2d 489, 

497 (Tex, 1997). 

4

 A number of other states also preclude the recovery of noneconomic damages for the 

negligent destruction of property, for example: 

 (1) Alabama: “[P]laintiffs cannot recover for mental anguish or emotional distress 

unless they suffered physical injury or were in the ‘zone of danger.’” Birmingham, 10 So 

3d at 999. 

 (2) Alaska: “The general rule is that where a tortfeasor’s negligence causes 

emotional distress without physical injury, such damages may not be awarded.” Hancock 

v Northcutt, 808 P2d 251, 257 (Alas, 1991). 

 (3) Maryland: “[A] plaintiff cannot ordinarily recover for emotional injuries 

sustained solely as a result of negligently inflicted damage to the plaintiff’s property.” 

Dobbins v Washington Suburban Sanitary Comm, 338 Md 341, 351; 658 A2d 675 

(1995). 

 (4) Nevada: “[T]he better rule is to allow recovery only in cases which pertain to 

emotional distress arising from harm to another person, and not in cases, such as the one 

before us, which pertain to emotional distress arising from property damage.” Smith v 

Clough, 106 Nev 568, 569-570; 796 P2d 592 (1990). 

 (5) New Mexico: “[A] plaintiff may not recover for emotional distress based 

solely on a claim for negligent damage to property.” Castillo, 2008 NMCA at ¶ 21; 145 

NM at 210. 
10

§ 911 comment e, p 475 (“Compensatory damages are not given for emotional distress 

caused merely by the loss of . . . things . . . .”); 1 Dobbs, Law of Remedies (2d ed, 1993), 

Damages-Equity-Restitution, § 5.15(1), p 876 (“In general, the owner of damaged 

property cannot recover damages for emotional distress as an element of damage to the 

property.”); 22 Am Jur 2d, Damages, § 255, pp 238-239; 38 Am Jur 2d, Fright, Shock, 

Etc, § 19, p 31 (“Subject to some exceptions, generally, under ordinary circumstances, 

there can be no recovery for mental anguish suffered by a plaintiff in connection with an 

injury to his or her property.”); 2 Restatement Torts, 2d, § 313, pp 113-115 (implying that 

damages for emotional distress are not recoverable in cases concerning negligently 

inflicted injury to property);5

 4 Restatement Torts, 2d, § 911 comment e, p 474 (“Even 

 

 (6) New York: Damages for mental anguish are not recoverable absent “competent 

evidence of contemporaneous or consequential physical harm[.]” Iannotti v City of 

Amsterdam, 225 AD2d 990, 990; 639 NYS2d 537 (NY App, 1996). 

 (7) Oklahoma: “[E]motional distress as a consequence of an intentional tort is 

distinguishable from distress resulting from breach of contract or negligence, which 

requires a showing of physical injury.” Cleveland v Dyn-A-Mite Pest Control, Inc, 2002 

OK Civ App 95, ¶ 52; 57 P3d 119, 131 (2002) (citation and quotation marks omitted). 

 (8) Oregon: “[P]sychic and emotional injuries” are not recoverable where the 

“plaintiff suffered no physical injury from [the] defendants’ alleged negligence and 

[where the plaintiff] has not shown that [the] defendants’ conduct was anything more 

than negligent[.]” Hammond v Central Lane Communications Center, 312 Or 17, 20; 

816 P2d 593 (1991). 

 (9) Texas: “[M]ental anguish based solely on negligent property damage is not 

compensable as a matter of law.” Likes, 962 SW2d at 497.

5

 Section 313 of the Restatement Second of Torts concerns “Emotional Distress 

Unintended.” It provides: 
11

when the subject matter has its chief value in its value for use by the injured person, if the 

thing is replaceable, the damages for its loss are limited to replacement value, less an 

amount for depreciation.”); 28 ALR2d 1070, § 8, p 1093 (“In simple negligence cases 

involving personal property, the courts have been reluctant to authorize the allowance of 

damages for mental anguish or disturbance allegedly caused by the defendant’s wrongful 

acts.”). 

 Lending additional support to this conclusion is the simple fact that, before the 

Court of Appeals’ opinion below, no case ever in the history of the Michigan common 

law has approvingly discussed the recovery of noneconomic damages for the negligent 

destruction of property. Indeed, no case has even broached this issue except through the 

 

 (1) If the actor unintentionally causes emotional distress to another, 

he is subject to liability to the other for resulting illness or bodily harm if 

the actor 

 (a) should have realized that his conduct involved an unreasonable 

risk of causing the distress, otherwise than by knowledge of the harm or 

peril of a third person, and 

 (b) from facts known to him should have realized that the distress, if 

it were caused, might result in illness or bodily harm. 

 (2) The rule stated in Subsection (1) has no application to illness or 

bodily harm of another which is caused by emotional distress arising solely 

from harm or peril to a third person, unless the negligence of the actor has 

otherwise created an unreasonable risk of bodily harm to the other. [2 

Restatement Torts, 2d, § 313, p 113 (emphasis added).] 

As the comments to subsection (2) indicate, the basis for allowing the recovery for 

emotional distress in this context is that those actions “threaten[] the plaintiff with bodily

harm . . . .” Id. at 114 (emphasis added). Accordingly, when there is nothing threatening 

the plaintiff with bodily harm, for instance when a claim involves only property damage, 

a defendant is not liable for unintended emotional distress. 
12

negative implication arising from limiting damages for the negligent destruction or 

damage of property to replacement and repair costs. Put another way, despite the fact 

that throughout the course of our state’s history, many thousands of houses and other real 

properties have doubtlessly been negligently destroyed or damaged, and despite the fact 

that surely in a great many, if not a majority, of those cases the residents and owners of 

those properties suffered considerable emotional distress, there is not a single Michigan 

judicial decision that expressly or impliedly supports the recovery of noneconomic 

damages in these circumstances.6

 Thus, supplementing the affirmative judicial decisions 

that we have cited in support of the limiting principles of the common law for the 

calculation of property damages is the absence of even a single affirmative judicial 

decision in support of the contrary proposition, a proposition that one would expect to 

have become commonplace within the law if it had ever existed. However, this particular 

dog has been perpetually silent and has never barked. 

 Moreover, the Court of Appeals has decided two relatively recent cases 

concerning injury to personal property in which noneconomic damages were disallowed. 

In Koester v VCA Animal Hosp, 244 Mich App 173; 624 NW2d 209 (2000), the plaintiff 

dog owner sought noneconomic damages in a tort action against his veterinarian 

following the death of his dog resulting from the veterinarian’s negligence. The trial 

court granted the defendant’s motion for summary disposition, holding that “emotional 

 

6

 Indeed, O’Donnell, Baranowski, and Strzelecki all involved negligent damage to 

houses, while Tillson, Bayley, and Bluemlein involved negligent damage to other 

privately owned real property. 
13

damages for the loss of a dog do not exist.” Id. at 175. On appeal, the Court of Appeals 

affirmed, noting that pets are personal property under Michigan law and explaining that 

there “is no Michigan precedent that permits the recovery of damages for emotional 

injuries allegedly suffered as a consequence of property damage.” Id. at 176. 

 Later, in Bernhardt v Ingham Regional Med Ctr, 249 Mich App 274; 641 NW2d 

868 (2002), the plaintiff visited the defendant hospital to bring home her adopted, 

newborn son. Before washing her hands, the plaintiff removed her jewelry, which 

consisted of her grandmother’s 1897 wedding ring (which was also her wedding ring) 

and a watch purchased in 1980 around the time of her brother’s murder. The plaintiff 

accidentally forgot the jewelry in the washbasin and left the hospital. Upon realizing her 

mistake, the plaintiff contacted the defendant and was advised that she could retrieve the 

jewelry from hospital security. However, when she tried to retrieve the jewelry, it could 

not be located. The plaintiff sued, and the defendant moved for summary disposition, 

arguing that the plaintiff’s damages did not exceed the $25,000 jurisdictional limit of the 

trial court. The plaintiff countered that her damages exceeded that limit because the 

jewelry possessed great sentimental value. The trial court granted the defendant’s 

motion. On appeal, the Court of Appeals affirmed, citing Koester, 109 Mich App at 176, 

for the proposition that there “is no Michigan precedent that permits the recovery of 

damages for emotional injuries allegedly suffered as a consequence of property damage,” 

Bernhardt, 249 Mich App at 279. Bernhardt concluded: 

 In the present case, the two items of jewelry have a market value that 

can easily be ascertained. Hence, fair market value is the measure of 

damages. Because the items have a fair market value, there is no need to 
14

resort to an alternative measure of damages to compensate plaintiff for her 

loss. [Id. at 281.] 

In support of its conclusion, Bernhardt quoted the following language from the 

Restatement Second of Torts: 

 If the subject matter cannot be replaced, however, as in the case of a 

destroyed or lost family portrait, the owner will be compensated for its 

special value to him, as evidenced by the original cost, and the quality and 

condition at the time of the loss. . . . In these cases, however, damages 

cannot be based on sentimental value. Compensatory damages are not 

given for emotional distress caused merely by the loss of the things, except 

that in unusual circumstances damages may be awarded for humiliation 

caused by deprivation, as when one is deprived of essential elements of 

clothing. [Id. at 281, quoting 4 Restatement Torts, 2d, § 911, comment e, 

pp 474-475 (quotation marks omitted).] 

 While Koester and Bernhardt both involved negligent injury to personal property, 

they speak of property generally.7

 Although the Court of Appeals in the instant case 

seeks to draw distinctions between personal and real property, neither that Court nor 

plaintiff has explained how any of those distinctions, even if they had some pertinent 

foundation in the law, are relevant with regard to the propriety of awarding noneconomic 

 

7 Koester and Bernhardt stated that there is no Michigan precedent permitting the 

recovery of noneconomic damages resulting from property damage. Those statements 

are not limited to personal property damage. For example, Bernhardt cited the 

Restatement of Torts, which provides that “[c]ompensatory damages are not given for 

emotional distress caused merely by the loss of the things . . . .” Bernhardt, 249 Mich 

App at 281 (citation and quotation marks omitted). A house may be a home, but it is also 

a thing, albeit a thing to which many people develop emotional attachment. But like the 

jewelry in Bernhardt, a house has “a market value that can easily be ascertained.” Id. at 

281. Moreover, in Wolverine, 1 Mich App at 242, the Court of Appeals expressly applied 

the rule from O’Donnell, a real-property case, to personal property. See also Strzelecki, 

133 Mich App at 194 (citing Wolverine for the proposition that the O’Donnell rule 

applies “as well to damages for personal property injured through negligence”). 
15

damages.8

 In short, while it is doubtlessly true that many people are highly emotionally 

attached to their houses, many people are also highly emotionally attached to their pets,9

their heirlooms, their collections, and any number of other things. But there is no legally 

relevant basis that would logically justify prohibiting the recovery of noneconomic 

damages for the negligent killing of a pet or the negligent loss of a family heirloom but 

allow such a recovery for the negligent destruction of a house.10 Accordingly, Koester 

 

8

 In justifying its holding, the Court of Appeals identified the following differences 

between real and personal property: (1) trespass to land, unlike trespass to chattels, does 

not require an actual showing of damage, Price, 294 Mich App at 55; (2) breach of 

contract for the sale of real property includes the right to specific performance, id. at 56; 

(3) “[a]uthors and poets alike wax philosophical about the unique value of a home,” id.; 

and (4) the destruction of a house causes “the stress and upheaval of displacement and the 

need to alternate shelter,” id. at 57. However, none of these differences is relevant to 

whether noneconomic damages should be available for the negligent destruction of real 

property: (1) allowing for nominal damages in a real-property trespass claim, and not a 

trespass-to-chattels claim, is merely a recognition in the law that a trespass to land can 

occur without causing actual damage, whereas a trespass to chattel actually deprives the 

owner of the chattel and, by necessity, causes actual damage; (2) specific performance 

remedies may be granted in cases involving both personal and real property, see 

Richardson v Lamb, 253 Mich 659, 663; 235 NW 817 (1931); (3) authors and poets wax 

philosophical-- or poetic-- about many things, but these waxings do not define the 

common law; and (4) the costs of relocating and rebuilding a house-- obtaining “alternate 

shelter” and attendant personal upheavals-- define the measure of what are largely 

economic costs and were covered by defendant, defendant’s insurer, and plaintiff’s 

insurer. We do not question that there is personal stress attendant to the suffering of any 

tort, but such stress can as easily accompany the destruction or damage of personal 

property as of real property. 

9

 Indeed, Koester, 244 Mich App at 175, recognized the fact that “domesticated pets have 

value and sentimentality associated with them which may not compare with that of other 

personal property . . . .” 

10 As defense counsel pointed out at oral argument, it seems anomalous that under the 

Court of Appeals’ theory, while plaintiff could not recover damages for her emotional 

attachment to a family portrait that hung on the wall in her house, she could recover for 
16

and Bernhardt underscore O’Donnell’s exclusion of noneconomic damages for negligent 

injury to real and personal property. 

 Finally, we would be remiss if we did not address Sutter v Biggs, 377 Mich 80, 86; 

139 NW2d 684 (1966) (concerning a medical malpractice claim in which the plaintiff’s 

ovary and fallopian tube were removed without her consent), which the Court of Appeals 

cited as providing the “general rule” for the recovery of damages in tort actions. Sutter 

stated: 

 The general rule, expressed in terms of damages, and long followed 

in this State, is that in a tort action, the tort-feasor is liable for all injuries 

resulting directly from his wrongful act, whether foreseeable or not, 

provided the damages are the legal and natural consequences of the 

wrongful act, and are such as, according to common experience and the 

usual course of events, might reasonably have been anticipated. Remote 

contingent, or speculative damages are not considered in conformity to the 

general rule. Van Keulen & Winchester Lumber Co. v. Manistee and 

Northeastern Railroad Co., 222 Mich 682 [193 NW 289 (1923)]; 

Woodyard v. Barnett, 335 Mich 352 [56 NW2d 214 (1953)]; and Fisk v. 

Powell, 349 Mich 604 [84 NW2d 736 (1957)]. See, also McLane, Swift & 

Co. v. Botsford Elevator Co., 136 Mich 664 [99 NW 875 (1904)], and 

Cassidy v. Kraft-Phenix Cheese Corp., 285 Mich 426 [280 NW 814 

(1938)]. [Id.] 

Although Sutter articulates a “general rule,” it is a “general rule” that has never been 

applied to allow the recovery of noneconomic damages in a case involving only property 

damage,11 and it is a “general rule” that must be read in light of the more narrow and 

 

emotional attachment to the wall itself. The Court of Appeals’ distinctions between real 

and personal property are ultimately arbitrary and unsustainable. 

11 None of the cases cited by Sutter in support of its “general rule” involved noneconomic 

damages. Van Keulen, 222 Mich 682 (whether and to what extent the defendant was 
17

specific “general rule” of O’Donnell.

12

 The development of the common law frequently yields “general rules” from which 

branch more specific “general rules” that apply in limited circumstances. Where tension 

exists between those rules, the more specific rule controls.13 See Moning v Alfono, 400 

Mich 425, 442-449; 254 NW2d 759 (1977) (acknowledging the “general standard of 

 

liable for failing to notify a consignee that delivered lumber had not been kiln-dried); 

Woodyard, 335 Mich 352 (whether the defendant was liable for the plaintiff’s inability to 

complete his beet harvest); Fisk, 349 Mich 604 (whether the defendants were liable for 

the plaintiffs’ partial crop failure); McLane, 136 Mich 664 (whether the defendant’s 

failure was a proximate cause of the plaintiff’s loss of oats); Cassidy, 285 Mich 426 

(whether the defendant’s refusal to enter into a written contract removed the plaintiff’s 

claim from the statute of frauds). 

12 Valentine v Gen American Credit, Inc, 420 Mich 256, 261; 362 NW2d 628 (1984), 

explained that emotional harm attendant to economic loss is insufficient to warrant 

noneconomic damages even where a plaintiff would not be made whole absent such 

damages: 

 The denial of mental distress damages, although the result is to leave 

the plaintiff with less than a full recovery, has analogy in the law. The law 

does not generally compensate for all losses suffered. Recovery is denied 

for attorney’s fees, for mental anguish not accompanied by physical 

manifestation, and “make-whole” or full recovery has been denied where 

the cost of performance exceeds the value to the promisee. The courts have 

not, despite “make whole” generalizations regarding the damages 

recoverable, attempted to provide compensation for all losses. Instead, 

specific rules have been established that provide for the calculation of the 

damages recoverable in particular kinds of actions. [Citations omitted.] 

The O’Donnell rule is precisely such a specific rule in an action for the negligent 

destruction of property. 

13 This tension does not suggest that the more general rule is incorrect, only that it must 

yield to the more specific rule in the appropriate circumstances. That is the case for 

Sutter’s rule; that is, while Sutter provided an appropriate “general rule” for tort actions 

generally, O’Donnell provided an exception to that rule that has been specifically adapted 

to tort actions involving only property damage. 
18

conduct” in a negligence case but allowing the jury to consider “one of the many specific 

rules concerning particular conduct that have evolved in the application of the general 

standard of care”); see also Beech Grove, 380 Mich at 430 (“‘[C]hanging conditions may 

give rise to new rights under the law, and, also, where the reason on which existing rules 

of the common law are founded ceases, the rules may cease to have application.’”), 

quoting 15A CJS, Common Law, § 2, pp 43-44. With respect to this case, although 

Sutter articulated a general rule, O’Donnell articulated a more specific “general rule,” 

applicable in negligence actions in which there is only property damage. Accordingly, 

because this case involves only property damage, the O’Donnell rule, not the Sutter rule, 

controls.14

B. ALTERING THE COMMON LAW 

 Because the Court of Appeals determined that the “general rule” is that “in a tort 

action, the tort-feasor is liable for all injuries,”15 the Court of Appeals contended that it 

 

14 Although Sutter was decided some years after O’Donnell, the “general rules” 

articulated in these cases have each been restated repeatedly over the years without 

conflict (until this case). This history underscores that the two “general rules” here 

operate in parallel and are complementary. 

15 The Court of Appeals did not acknowledge Valentine. It addressed the O’Donnell 

rule-- by reference to Strzelecki and Baranowski-- but determined that application of that 

rule to the instant case would be inappropriate because the cases in which that rule has 

been applied “addressed the measure of damages for economic loss suffered as a result of 

the destruction of real property” and did not include “a discussion of noneconomic 

damages.” Price, 294 Mich App at 53. This ignores Wolverine (and Strzelecki’s citation 

of Wolverine), which applied the O’Donnell rule to damages for personal property. 

Moreover, in our judgment, the absence of discussion regarding noneconomic damages, 

as explained earlier in this opinion, supports, rather than undermines, our conclusion that 

noneconomic damages are not recoverable. Not only did both Strzelecki and Baranowski
19

was not altering the common law but, rather, “declin[ing] to extend” to real property the 

personal property “exception” set forth in Koester and Bernhardt.

16 Price, 294 Mich App 

at 54-55 (quotation marks and citation omitted). However, as previously mentioned, the 

Court of Appeals’ opinion constitutes the first and only Michigan case to support the 

recovery of noneconomic damages for the negligent destruction of property.17 See 2 

Michigan Law of Damages & Other Remedies (3d ed), § 19.18.18 Accordingly, contrary 

 

involve damage to houses, but one would think that decades-long restatements by the 

judiciary of this state that tort damage to property is recompensed by x + y would at some 

point logically communicate that z is not also included. 

16 Contrary to the analysis of the Court of Appeals in this case, Koester, 244 Mich App at 

176, explained that it was declining to create new tort liability: 

 In essence, plaintiff requests that we create for pet owners an 

independent cause of action for loss of companionship when a pet is 

negligently injured by a veterinarian. Although this Court is sympathetic to 

plaintiff’s position, we defer to the Legislature to create such a remedy. 

17 It is also worth noting that none of the cases cited by the Court of Appeals in this case 

involved only property damage. Indeed, with the exception of Daley v LaCroix, 384 

Mich 4; 179 NW2d 390 (1970), none of the cases cited by the Court of Appeals involved 

property damage at all. Sutter, 377 Mich at 83-84, and McClain v Univ of Mich Bd of 

Regents, 256 Mich App 492, 493-494; 665 NW2d 484 (2003), both involved claims for 

bodily injury resulting from medical malpractice. Phillips v Butterball Farms Co, Inc 

(After Second Remand), 448 Mich 239, 241-242; 531 NW2d 144 (1995), involved a 

claim for emotional distress resulting from a retaliatory discharge, and Daley, 384 Mich 

at 13, involved a claim for emotional distress resulting from fright. Moreover, Stevens v 

City of Flint, unpublished opinion per curiam of the Court of Appeals, issued December 

20, 2007 (Docket No. 272329), and Bielat v South Macomb Disposal Auth, unpublished 

opinion per curiam of the Court of Appeals, issued November 9, 2004 (Docket No. 

249147)-- the unpublished opinions the Court of Appeals cited as persuasive authority-- 

both involved trespass-nuisance claims. 

18 The treatise cites the Court of Appeals’ decision as the only exception to the O’Donnell

rule: 
20

to the Court of Appeals’ own characterization and for the reasons discussed in part III(A) 

of this opinion, the Court of Appeals’ holding represents an alteration of the common 

law. With that understanding, we address whether the common law should be altered. 

 “This Court is the principal steward of Michigan’s common law,” Henry v Dow 

Chem Co, 473 Mich 63, 83; 701 NW2d 684 (2005), and it is “axiomatic that our courts 

have the constitutional authority to change the common law in the proper case,” North 

Ottawa Community Hosp v Kieft, 457 Mich 394, 403 n 9; 578 NW2d 267 (1998). This 

authority is traceable to Const 1963, art 3, § 7, which states, “The common law and the 

statute laws now in force, not repugnant to this constitution, shall remain in force until 

they expire by their own limitations, or are changed, amended or repealed.” Thus, as this 

Court has explained, “the common-law rule remains the law until modified by this Court 

or by the Legislature.” Longstreth v Gensel, 423 Mich 675, 686; 377 NW2d 804 (1985). 

However, this Court has also explained that alteration of the common law should be 

approached cautiously with the fullest consideration of public policy and should not 

occur through sudden departure from longstanding legal rules. Henry, 473 Mich at 83 

(“[O]ur common-law jurisprudence has been guided by a number of prudential principles. 

See Young, A judicial traditionalist confronts the common law, 8 Texas Rev L & Pol 

299, 305-310 (2004). Among them has been our attempt to ‘avoid capricious departures 

 

 Note that the Michigan Court of Appeals has held that a plaintiff 

may seek recovery for noneconomic damages in a negligence action for 

mental anguish naturally flowing from the damage to or destruction of real 

property. [2 Michigan Law of Damages & Other Remedies (3d ed), 

§ 19-18, citing Price, 294 Mich App 42.] 
21

from bedrock legal rules as such tectonic shifts might produce unforeseen and 

undesirable consequences,’ id. at 307 . . . .”); see also Woodman, 486 Mich at 231 

(opinion by YOUNG, J.) (“[M]odifications [of the common law] should be made with the 

utmost caution because it is difficult for the judiciary to assess the competing interests 

that may be at stake and the societal trade-offs relevant to one modification of the 

common law versus another in relation to the existing rule.”); id. at 268 (MARKMAN, J., 

concurring in part and dissenting in part) (explaining that the common law develops 

incrementally); North Ottawa, 457 Mich at 403 n 9 (providing that common law should 

only be changed “in the proper case”).19 As this emphasis on incrementalism suggests, 

when it comes to alteration of the common law, the traditional rule must prevail absent 

compelling reasons for change. This approach ensures continuity and stability in the law. 

 With the foregoing principles in mind, we respectfully decline to alter the 

common-law rule that the appropriate measure of damages for negligently damaged 

property is the cost of replacement or repair. We are not oblivious to the reality that 

 

19 Similarly, Koester, 244 Mich App at 176-177, explained: 

 There are several factors that must be considered before expanding 

or creating tort liability, including, but not limited to, legislative and 

judicial policies. In this case, there is no statutory, judicial, or other 

persuasive authority that compels or permits this Court to take the drastic 

action proposed by plaintiff. Case law on this issue from sister states is not 

consistent, persuasive, or sufficient precedent. We refuse to create a 

remedy where there is no legal structure in which to give it support. 

However, plaintiff and others are free to urge the Legislature to visit this 

issue in light of public policy considerations, including societal 

sentiment . . . . 
22

destruction of property or property damage will often engender considerable mental 

distress, and we are quite prepared to believe that the particular circumstances of the 

instant case were sufficient to have caused exactly such distress. However, we are 

persuaded that the present rule is a rational one and justifiable as a matter of reasonable 

public policy. We recognize that might also be true of alternative rules that could be 

constructed by this Court. In the final analysis, however, the venerability of the present 

rule and the lack of any compelling argument that would suggest its objectionableness in 

light of changing social and economic circumstances weigh, in our judgment, in favor of 

its retention. Because we believe the rule to be sound, if change is going to come, it must 

come by legislative alteration.20 A number of factors persuade us that the longstanding 

 

20 Although this Court is vested with the power to alter the common law, as already 

explained, such alteration should not be undertaken lightly. As counseled in People v 

Kevorkian, 447 Mich 436, 482 n 60; 527 NW2d 714 (1994) (opinion by CAVANAGH,

C.J., and BRICKLEY and GRIFFIN, JJ.), quoting Justice Cardozo’s The Nature of the 

Judicial Process: 

 The judge, even when he is free, is still not wholly free. He is not to 

innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of 

his own ideal of beauty or of goodness. He is to draw his inspiration from 

consecrated principles. He is not to yield to spasmodic sentiment, to vague 

and unregulated benevolence. He is to exercise a discretion informed by 

tradition, methodized by analogy, disciplined by system, and subordinated 

to the primordial necessity of order in the social life. Wide enough in all 

conscience is the field of discretion that remains. [Quotation marks and 

citations omitted.] 

Thus, this Court does not alter the common law at its unchecked discretion, much less at 

its whim. Rather, we are bound to tradition and stability and continuity. By virtue of its 

overtly political and representative nature, the Legislature is bound by different 

considerations. The barriers standing before this Court’s alteration of the common law 

are significantly higher than those facing the Legislature. 
23

character of the present rule is not simply a function of serendipity or of judicial inertia, 

but is reflective of the fact that the rule serves legitimate purposes and values within our 

legal system. 

 First, one of the most fundamental principles of our economic system is that the 

market sets the price of property. This is so even though every individual values property 

differently as a function of his or her own particular preferences. Inherent in this 

principle is that any property an individual owns is presumably valued by that individual

at or above its market rate. Otherwise, he or she presumably would not have purchased 

the property or continue to own it. Just as an individual typically does not pay for this 

surplus value, the law does not necessarily compensate that individual where that surplus 

value has been lost.21 

 Second, economic damages, unlike noneconomic damages, are easily verifiable, 

quantifiable, and measurable. Thus, when measured only in terms of economic damages, 

the value of property is easily ascertainable. Employing market prices in calculating 

compensation for property damage eliminates the need to engage in subjective 

determinations of property value and enables the legal system to undertake commonplace 

and precise determinations of value. This explains why, at least where the plaintiff has 

not sustained physical injury, the cost of the property’s replacement or repair has been the 

traditional standard for making a plaintiff “whole” under the law. See Valentine v Gen 

 

21 Concomitantly, even if an individual values his or her property below the market rate, 

the law does not reduce his or her tort damages by that amount. 
24

American Credit, Inc, 420 Mich 256, 261; 362 NW2d 628 (1984); Bernhardt, 249 Mich 

App at 279. This is so despite the fact that nearly every case involves some measure of 

emotional harm-- if only from the stress of litigation-- to victimized parties. 

 Third, limiting damages to the economic value of the damaged or destroyed 

property limits disparities in damage awards from case to case. Disparities in recovery 

are inherent in legal matters in which the value of what is in dispute is neither tangible 

nor objectively determined, but rather intangible and subjectively determined. Whereas 

under the present rule, all plaintiffs suffering an identical harm to their properties are 

compensated on a uniform basis, under the Court of Appeals’ rule, there would be as 

many levels of compensation as there are plaintiffs because no two plaintiffs would likely 

react to the damage or destruction of their properties in exactly the same fashion. Indeed, 

both objective and subjective disparities would result. Objective disparities would arise 

because, even if noneconomic harms were precisely quantifiable, identical injuries to 

identical properties could lead to severe mental distress for one person, while causing 

only minor annoyance for another. Subjective disparities would arise because 

noneconomic harms cannot be precisely quantified, so we must normally rely on juries to 

determine (1) whether noneconomic harms were caused, (2) the extent of such harms, 

and (3) the monetary value of such harms. The disparity in assessing damages by 

different fact-finders would presumably compound with each step in this chain of 

conjecture. 

 Fourth, the present rule affords some reasonable level of certainty to businesses 

regarding the potential scope of their liability for accidents caused to property resulting 
25

from their negligent conduct. As explained earlier in this opinion, under the Court of 

Appeals’ rule, those businesses that come into regular contact with real property-- 

contractors, repairmen, and fuel suppliers, for example-- would be exposed to the 

uncertainty of not knowing whether their exposure to tort liability will be defined by a 

plaintiff who has an unusual emotional attachment to the property or by a jury that has an 

unusually sympathetic opinion toward those emotional attachments. Insurers would have 

a similarly difficult time calculating the extent of the risks against which they are 

insuring. Schwartz & Laird, Non-economic damages in pet litigation: The serious need 

to preserve a rational rule, 33 Pepp L R 227, 261 (2006) (“When wild-card noneconomic damages are added to the equation, however, actuaries cannot accurately 

predict the likely costs of lawsuits.”), citing Huss, Valuation in veterinary malpractice, 

35 Loy U Chi L J 479, 532 (2004). 

 Once again, it is not our view that the common-law rule in Michigan cannot be 

improved, or that it represents the best of all possible rules, only that the rule is a 

reasonable one and has survived for as long as it has because there is some reasonable 

basis for the rule and that no compelling reasons for replacing it have been set forth by 

either the Court of Appeals or plaintiff. We therefore leave it to the Legislature, if it 

chooses to do so at some future time, to more carefully balance the benefits of the current 

rule with what that body might come to view as its shortcomings.22

 

22 Having reached this conclusion, we need not address defendant’s additional claims on 

appeal. 
26

IV. CONCLUSION 

 The issue in this case is whether noneconomic damages are recoverable for the 

negligent destruction of real property. No Michigan case has ever allowed a plaintiff to 

recover noneconomic damages resulting solely from the negligent destruction of 

property, either real or personal. Rather, the common law of this state has long provided 

that the appropriate measure of damages in cases involving the negligent destruction of 

property is simply the cost of replacement or repair of the negligently destroyed property. 

We continue today to adhere to this rule and decline to alter it. Accordingly, we reverse 

the judgment of the Court of Appeals and remand this case to the trial court for entry of 

summary disposition in defendant’s favor. 

 Stephen J. Markman 

 Robert P. Young, Jr. 

 Mary Beth Kelly 

 Brian K. Zahra 

 CAVANAGH, J., took no part in the decision of this case because of a familial 

relationship with counsel of record. 

MCCORMACK and VIVIANO, JJ., took no part in the decision of this case.