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 acti on in the Clinton Circuit Co urt against High Pointe Oil Company, Inc., claiming, among other things, noneconomic damages for the mental anguish, emotional distress, and psychological injuries th at she sustained when High Pointe negligently pumped 400 gallons of fuel oil into the baseme nt of her house. The incident created an environmental hazard that requir ed the razing of the house. Befo re the jury trial, High Pointe moved for summary disposition, in part on th e 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 mo tion, concluding that noneconomic damages could be recovered in a negligence action. The jury aw arded Price $100,000 for noneconomic damages, after which High Pointe m oved for judgment notwithstanding the verdict and remittitur. The court denied the motion and High Pointe appealed. The Court of Appeals, B ECKERING , P.J., and F ORT H OOD and S TEPHENS , JJ., affirmed, concludi ng that a plaintiff may recover mental anguish damages naturally flowing from damage to or th e 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 M ARKMAN , joined by Chief Justice Y OUNG and Justices M ARY B ETH K ELLY and Z AHRA , the Supreme Court held : Michigan common law has long provided that the appropriate measure of damages in cases involving the negligent destruc tion 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 da mages recoverable in an action alleging the negligent destruction of property is that if the in jury 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 repa irs 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 recove ry of noneconomic damages for the negligent destruction of property. Further, recent Cour t of Appeals precedent has disall owed 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 th e opinion of the Court but has been prepared by the Reporter of Decision s for the convenience of the reader. Reporter of Decisions: John O. Juroszekrelevant basis that would logically justify pr ohibiting the recovery of noneconomic damages for the negligent destruction of pers onal 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 polic y 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 pres ent rule denying recovery for that distress is rational and justifiable as a matter of reasonable p ublic policy. Given the lack of any compelling argument for altering the common law, re tention of the rule was appropriate. Judgment of the Court of Appeals reversed a nd case remanded to the trial court for entry of summary disposition in High Pointe’s favor.

Justice C AVANAGH took no part in the decision of this case because of a familial relationship with counsel of record.

Justices M C C ORMACK and V IVIANO took no part in the decision of this case.

©2013 State of MichiganFILED 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 C AVANAGH , M C C ORMACK , and V IVIANO , JJ.)

M ARKMAN , J. The issue in this case is whether noneconomic damages are recoverable for the negligent destruction of real pr operty. No Michigan case has ever allowed a plaintiff to recover noneconomic damages resulting sole ly from the negligen t destruction of property, either real or person al. 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 replacemen t or repair of the pr operty. We are not persuaded of the need for change and theref ore 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. Viviano2 Accordingly, we reverse the judgment of th e 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, Mi chigan. The house was originally heated by an oil furnace located in the basement, but in 2006 plaintiff replaced the oil furnac e with a propane furnace. Plai ntiff canceled her contract with defendant oil company’ s predecessor when the propan e furnace was installed. Although the oil furnace wa s removed, the oil fill pipe remained. Somehow, in November 2007, plaintiff’s address was pl aced on defenda nt’s “keep full list.” True to the name of the list, wh ile 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 mi stake and immediately calling 9 11. Plaintiff’s house and many of her belongings were de stroyed. 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 e xpenses. It is undisputed that plaintiff was fully compensated for her economic losses. Nevertheless, plaintiff filed suit in Augus t 2008, alleging clai ms for negligence, gross negligence, negligent infliction of em otional distress, nuisance, trespass, and a private claim under the Natural Resources and Environmental Pr otection Act, MCL

324.101 et seq . However, plaintiff’s only claim to surv ive to trial was fo r the recovery of noneconomic damages for defendant’s negligent destruction of her re al property. After3 trial and over defendant’s objection, a jury fo und in favor of plain tiff in the amount of $100,000 for past nonec onomic damages. Defendant moved for judgment notwithstanding the verdict a nd remittitur, arguing that plai ntiff had failed to present sufficient proofs to support the verdict. The trial court deni ed 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 neglig ence 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 recove rable 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 what4 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 no t static. By its nature, it adapts to changing circ umstances. 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 pr evalent moral and political th eories, [and] intuitions of public policy” and that it “embodies the st ory 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 grow th and (2) its capacity to reflect the public policy of a given era. . . .

* * *

“The common law does not consis t of definite rules which are absolute, fixed, and immuta ble like the statute law, but it is a flexible body of principles which are designed to me et, and are susceptib le of adaption to, among other things, new in stitutions, 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 indivi dual disputes are decided an d existing common-law rules are considered and sometimes adapted to curren t 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 93 6 (1993) (noting that the common law evolves through the5 “incremental process of common-law adjudica tion as a response to the facts presented”); 1

see also People v Aaron , 409 Mich 672, 727; 299 NW2d 30 4 (1980) (“Abrogation of the felony-murder rule is not a drastic move in li ght 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) (M ARKMAN , 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 proper ty caused by negligen ce 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 fo r 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 no ticeable in the short run, but inexorable when viewed in the long term.”); Davis v Moore , 772 A2d 204, 238 (D C, 2001) (Ruiz, J., dissenting) (“It cannot be forgotten that the incremental pace at which common law develops, coupled with the in creasing importance of statut ory law, ensures that cases where truly ‘new’ rules of common law are an nounced . . . will not frequently occur.”).

2 Tillson quoted O’Donnell ’s syllabus. The portion of the opinion from which the statement in the syllabu s was derived provided: As the case must go back for a ne w 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 inju ry 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 da te of the injury6 Accord William R Roach & Co v Blair , 190 Mich 11, 16-17; 155 NW 696 (1916) (approving as being in accordance with the “gen eral rule” the trial court’s articulation of damages as “‘the fair cash value at said ti me and place of said property which was destroyed by said fire, a nd 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 reduc ed value at the time. . . . [T]he difference

between the value before and after the acci dent 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 valu e of a horse after it was injured from its

and that value it would have had if th e 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 re parable, nor did de fendant make any showing as to the cost of full rest oration and repair of the house. Apparently, plaintiff tried the case on the theory that the damage was permanent and irreparable. Neverthe less, if defendant shows that the property can be repaired and restored to the conditio n it would have been in had it not been damaged by the subsiden ce, and also gives proper testimony as to the cost of the repairs, the cour t should make it clear to the jury that the question as to the permanency of th e 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-Wh ite Coal Mining Co , 229 Pa 417, 428; 78 A 1004 (1911).]7 preinjury market value); Fite v North River Ins Co , 199 Mich 467, 4 71; 165 NW 705 (1917) (indicating the primacy of mark et 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 Upholste ry Co v Ammerman , 1 Mich App 235, 242; 135 NW2d 572 (1965); Bayley Products, Inc v Amer ican 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 Lakesid e 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 th e market value of the property before and after the injury to th e property.”); 7 Michigan Civil Juri sprudence (2009 rev), § 50, p 379 (“The measure of damages for negligent inju ry to real property, if permanent and irreparable is the difference between its mark et value before and after the damage.”). Accordingly, the long-held common-law rule in Michigan is that the measure of damages8 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 appro ach to damages is employed by a number of other states, for example: (1) Alabama: “The proper measure of compensatory damage s in a tort action based on damage to real property is the diffe rence between the fair market value of the property immediately before the damage and the fair market value immediately after the damage.” Birmingham Coal & Co ke Co, Inc v Johnson , 10 So 3d 993, 998 (Ala, 2008) (citations and quotatio n marks omitted). (2) Colorado: “In cases invo lving damage to property, . . . the ordinary measure of damages is the diminution of mark et 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 in jury to the premises[.]” Royal Capital Dev, LLC v Maryland Cas Co , 291 Ga 262, 264; 728 SE 2d 234 (2012) (citation omitted). (4) Idaho: “If land is taken or the valu e 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 dama ges 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 negligen t destruction of property. 4 See also 4 Restatement Torts, 2d,

(8) Pennsylvania: “The proper measure of damages in a case wh ere the injury to the property was permanent is the market value of the prop erty 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 meas ure 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 recoverabl e 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 nonec onomic damages for the negligent destruction of pr operty, 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 ru le is that where a tortf easor’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 or dinarily recover for emotional injuries sustained solely as a result of negligently inflicted damage to the plaintiff’s property.” Dobbins v Washington S uburban 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 anothe r person, and not in cas es, such as the one before us, which pertain to emotional di stress 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 neglig ent damage to property.” Castillo , 2008 NMCA at ¶ 21; 145 NM at 210.10 § 911 comment e, p 475 (“Compensatory dama ges 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 genera l, 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, u nder 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 r ecoverable 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 rec overable absent “competent evidence of contemporaneous or c onsequential 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 1 19, 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’ cond uct 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 sole ly on negligent property damage is not compensable as a matter of law.” Likes , 962 SW2d at 497.

5 Section 313 of the Restat ement Second of Torts conc erns “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 damage s 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 be en reluctant to author ize the allowance of damages for mental anguish or disturbance allegedly caused by the defendant’s wrongful acts.”). Lending additional support to this conclu sion is the simple fact that, before the Court of Appeals’ opinion below, no case ever in the histor y of the Michigan common law has approvingly discussed the recovery of noneconomic damages for the negligent destruction of property. Ind eed, 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 othe r for resulting illness or bodily harm if the actor (a) should have realized that hi s conduct involved an unreasonable risk of causing the distress, otherwis e than by knowledge of the harm or peril of a third person, and (b) from facts known to him should ha ve realized that the distress, if it were caused, might result in illness or bodily harm. (2) The rule stated in Subsection (1) has no ap plication to illness or bodily harm of another whic h 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 instan ce when a claim involves only property damage, a defendant is not liable for uni ntended emotional distress.12 negative implication arising from limiting da mages for the neglig ent destruction or damage of property to replacement and repair costs. Put another way, despite the fact that throughout the course of our state’s hist ory, 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 emotiona l distress, there is not a single Michigan judicial decision that expressly or imp liedly supports the recovery of noneconomic damages in these circumstances. 6 Thus, supplementing the affi rmative judicial decisions that we have cited in support of the lim iting principles of the common law for the calculation of property damages is the absenc e of even a single affirmative judicial decision in support of the contrary propositi on, a proposition that one would expect to have become commonplace within the law if it ha d ever existed. Howe ver, this particular dog has been perpetually s ilent 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 ne gligence. The trial court granted the defendant’s motion for su mmary disposition, holding that “emotional

6 Indeed, O’Donnell , Baranowski , and Strzelecki all involved neg ligent 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 Michig an law and explaining that there “is no Michigan preced ent that permits the recovery of damages for emotional injuries allegedly suffered as a c onsequence of prope rty damage.” Id. at 176. Later, in Bernhardt v Ingham Regio nal Med Ctr , 249 Mich App 274; 641 NW2d 868 (2002), the plaintiff visited the defe ndant hospital to bring home her adopted, newborn son. Before washing her hands, the plaintiff removed her jewelry, which consisted of her grandmothe r’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 washbasi n 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 re trieve the jewelry, it could not be located. The plain tiff sued, and the defendant m oved for summary disposition, arguing that the plaintiff’s da mages did not exceed the $25,00 0 jurisdictional limit of the trial court. The plaintiff countered that her damages exceeded th at limit because the jewelry possessed great sentimental value. The trial court gran ted 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 th at permits the recovery of damages for emotional injuries allegedly suffer ed 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, fa ir market value is the measure of damages. Because the items have a fair market value, there is no need to14 resort to an alternative measure of da mages 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 repl aced, however, as in the case of a destroyed or lost family portrait, the owner will be co mpensated 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 valu e. Compensatory damages are not given for emotional distress caused me rely by the loss of the things, except that in unusual circumstances dama ges may be awarde d for humiliation caused by deprivation, as when one is deprived of essential elements of clothing. [ Id. at 281, quoting 4 Restatement To rts, 2d, § 911, comment e, pp 474-475 (quotati on marks omitted).]

While Koester and Bernhardt both involved neg ligent 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 so me pertinent foundation in the law, are rele vant with regard to the prop riety of awarding noneconomic

7 Koester and Bernhardt stated that there is no Mi chigan precedent permitting the recovery of noneconomic da mages 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 me rely 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 th at 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 pe rsonal 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 atta ched to their pets, 9 their heirlooms, their collections, and any numbe r of other things. But there is no legally

relevant basis that would l ogically justify prohibiting th e 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 ne gligent destruction of a house. 10 Accordingly, Koester

8 In justifying its holding, the Court of Appeals identifi ed the following differences between real and personal property: (1) trespa ss 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 in cludes the right to specific performance, id. at 56; (3) “[a]uthors and poets alike wax philosoph ical about the unique value of a home,” id. ; and (4) the destruction of a ho use causes “the stress and upheav al of displacement and the need to alternate shelter,” id. at 57. However, none of thes e differences is relevant to whether noneconomic damages should be availa ble 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 reco gnition 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, caus es actual damage; (2) specific performance remedies may be granted in cases involvi ng both personal and real property, see Richardson v Lamb , 253 Mich 659, 663; 2 35 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, defe ndant’s insurer, and plaintiff’s insurer. We do not question that there is pers onal stress attendant to the suffering of any tort, but such stress can as easily accompan y 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 associ ated 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 dama ges for her emotional attachment to a family portrait that hung on the wall in her house, she could recover for16 and Bernhardt underscore O’Donnell ’s exclusion of nonecono mic damages for negligent injury to real and personal property. Finally, we would be remi ss if we did not address Sutter v Biggs , 377 Mich 80, 86; 139 NW2d 684 (1966) (concerning a medical malp ractice claim in which the plaintiff’s ovary and fallopian tube were removed withou t her consent), which the Court of Appeals cited as providing the “general rule” for th e recovery of damages in tort actions. Sutter

stated: The general rule, expressed in te rms 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, acco rding to common experience and the usual course of events, might reasona bly 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 ru le,” it is a “general ru le” 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 wa ll itself. The Court of Appeal s’ distinctions between real and personal property ar e 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 was17 specific “general rule” of O’Donnell

. 12 The development of the common law frequen tly 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 de livered lumber had not been kiln-dried); Woodyard , 335 Mich 352 (whether the defendant wa s 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 in to a written contract removed the plaintiff’s claim from the statute of frauds).

12 Valentine v Gen Am erican Credit, Inc , 420 Mich 256, 261; 362 NW2d 628 (1984), explained that emotional harm attendant to economic loss is insu fficient to warrant noneconomic damages even where a plaintiff would not be made whole absent such damages : The denial of mental distress dama ges, 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 lo sses suffered. Recovery is denied for attorney’s fees, for mental an guish not accompanied by physical manifestation, and “make-whole” or full recovery has been denied where the cost of performance ex ceeds the value to the promisee. The courts have not, despite “make whole” generali zations regarding the damages recoverable, attempted to provide co mpensation for all losses. Instead, specific rules have been established th at provide for the calculation of the damages recoverable in particular ki nds 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 incorre ct, only that it must yield to the more specific rule in the appropr iate circumstances. That is the case for Sutter ’s rule; that is, while Sutter provided an appropriate “gen eral rule” for tort actions generally, O’Donnell provided an exception to that rule that has been specifically adapted to tort actions involving on ly property damage.18 conduct” in a negligence case but allowing the jury to consider “one of the many specific rules concerning particular co nduct that have evolved in th e 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, Comm on Law, § 2, pp 43-44. With respect to this case, although

Sutter articulated a general rule, O’Donnell articulated a more spec ific “general rule,” applicable in negligence actions in which th ere 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 th at 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 unders cores that the two “g eneral 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 cas es in which that rule has been applied “addressed the measure of damages for economic loss suffered as a result of the destruction of real prop erty” 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, th e absence of discussion rega rding noneconomic damages, as explained earlier in this opinion, supports, rather than undermines, our conclusion that noneconomic damages are not rec overable. Not only did both Strzelecki and Baranowski19 was not altering the common law but, rather, “dec lin[ing] to extend” to real property the personal property “excep tion” 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 fi rst and only Michigan case to support the recovery of noneconomic damages for th e negligent destruction of property. 17 See 2 Michigan Law of Damages & Othe r Remedies (3d ed), § 19.18. 18 Accordingly, contrary

involve damage to houses, but one would th ink that decades-long restatements by the judiciary of this state that to rt damage to property is reco mpensed by x + y would at some point logically communicate that z is not also included.

16 Contrary to the analysis of th e 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 th at we create for pet owners an independent cause of action for loss of companionship when a pet is negligently injured by a ve terinarian. Although this Court is sympathetic to plaintiff’s position, we defer to the Le gislature to create such a remedy.

17 It is also worth noting that none of the cas es cited by the Court of Appeals in this case involved only proper ty 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), bo th involved claims for bodily injury resulting fro m medical malpractice. Phillips v Butterball Farms Co, Inc (After Second Remand) , 448 Mich 239, 241-242; 531 NW 2d 144 (1995), involved a claim for emotional distress resulti ng from a retaliatory discharge, and Daley , 384 Mich at 13, involved a claim for emotional di stress 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 Appeal s, issued November 9, 2004 (Docket No. 249147)-- the unpublished opinion s the Court of Appeals cite d as persuasive authority-- both involved trespass- nuisance claims.

18 The treatise cites the Court of Appeal s’ decision as the only exception to the O’Donnell rule:20 to the Court of Appeal s’ own characterization and for th e reasons discussed in part III(A) of this opinion, the Court of Appeals’ hol ding 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 chan ge 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, no t repugnant to this constitution, shall remain in force until they expire by their own limitations, or are chan ged, amended or repeal ed.” Thus, as this Court has explained, “t he common-law rule remains the la w until modified by this Court or by the Legislature.” Longstreth v Gensel , 423 Mich 675, 686; 3 77 NW2d 804 (1985). However, this Court has also explained that alteration of the common law should be approached cautiously with th e fullest consideration of public policy a nd should not occur through sudden departure fr om longstanding legal rules. Henry , 473 Mich at 83 (“[O]ur common-law jurisprudence has been gui ded 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 tectoni c shifts might produce unforeseen and undesirable consequences,’ id . at 307 . . . .”); see also Woodman , 486 Mich at 231 (opinion by Y OUNG , J.) (“[M]odifications [of the common law] should be made with the

utmost caution because it is di fficult for the judiciary to a ssess the competing interests that may be at stake and the societal trad e-offs relevant to one modification of the

common law versus another in re lation to the existing rule.”); id. at 268 (M ARKMAN , 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 traditiona l rule must prevail absent compelling reasons for change. This approach ensures continui ty and stability in the law. With the foregoing princi ples in mind, we respectfu lly decline to alter the common-law rule that the appropriate meas ure of damages for negligently damaged property is the cost of replacement or repai r. We are not oblivious to the reality that

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

There are several factors that mu st be considered before expanding or creating tort liability, including, but not limited to, legislative and judicial policies. In this case, ther e is no statutory, judicial, or other persuasive authority that compels or pe rmits this Court to take the drastic action proposed by plaintiff. Case law on this issue from sister states is not consistent, persuasive, or sufficient pr ecedent. 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 th at might also be true of a lternative rules that could be constructed by this Court. In the final anal ysis, 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 circumst ances weigh, in our ju dgment, 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 persua de 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, 4 82 n 60; 527 NW2d 714 (1994) (opinion by C AVANAGH , C.J., and B RICKLEY and G RIFFIN , 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 kni ght-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw hi s inspiration from consecrated principles. He is not to yield to spas modic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, discip lined 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 alte r the common law at its unchec ked discretion, much less at its whim. Rather, we are boun d to tradition and stability and co ntinuity. 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 se rves legitimate purposes and values within our legal system. First, one of the most fundamental princi ples of our economic system is that the market sets the price of property. This is so even though every indi vidual values property differently as a function of hi s or her own particular pref erences. 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 presum ably would not have purchased the property or continue to ow n it. Just as an individual typically does not pay for this surplus value, the law does not necessarily compensate that in dividual where that surplus

value has been lost. 21 Second, economic damages, unlike nonec onomic damages, are easily verifiable, quantifiable, and measurable. Thus, when m easured only in terms of economic damages, the value of property is easily ascertainable. Employing market prices in calculating compensation for property damage eliminat es the need to engage in subjective determinations of property value and enable s the legal system to undertake commonplace and precise determinations of value. This e xplains why, at least where the plaintiff has not sustained physical injury, th e cost of the property’s repl acement or repair has been the traditional standard for making a plai ntiff “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 inta ngible 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 Co urt of Appeals’ rule, there would be as many levels of compensation as there are plain tiffs because no two plaintiffs would likely react to the damage or destruction of their pr operties in exactly the sa me fashion. Indeed, both objective and subjec tive disparities would result. Ob jective disparities would arise because, even if noneconomic harms were preci sely quantifiable, id entical injuries to identical properties could lead to severe me ntal distress for one person, while causing only minor annoyance for a nother. Subjective dispar ities 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 pr esumably compound w ith each step in this chain of conjecture. Fourth, the present rule affords some reas onable level of certainty to businesses regarding the potential scope of their liabilit y for accidents caused to property resulting25 from their negligen t 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 whet her 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 to ward those emotional attachments. Insurers would have a similarly difficult time calculating the exte nt 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 (20 06) (“When wild-card noneconomic damages are added to the equati on, 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 th e 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 beca use there is some reasonable basis for the rule and that no compelling reas ons 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 ba lance the benefits of the current rule with what that body might co me to view as its shortcomings. 22

22 Having reached this conclusi on, we need not address defe ndant’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 pr operty. No Michigan case has ever allowed a plaintiff to recover noneconomic damages resulting sole ly from the negligen t destruction of property, either real or person al. 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 alte r it. Accordingly, we reverse the judgment of the Court of Appeals and rema nd this case to the tria l court for entry of summary disposition in defendant’s favor.

Stephen J. Markman Robert P. Young, Jr. Mary Beth Kelly Brian K. Zahra

C AVANAGH , J., took no part in the decision of this case because of a familial relationship with counsel of record.

M C C ORMACK and V IVIANO , JJ., took no part in th e decision of this case.