…Which is why, oftentimes, I will see a quite bloggable story but not get around to blogging it. By the time I do have a spare moment to sit down and pen (er, keyboard) a blog post about the story, the story’s expiration date will often be up, leaving me no choice but to pass the story over. (This blog is cutting-edge, people!).
But fortunately, a recent post by Walter Olson at Overlawyered.com gives me a chance to circle back around to one story that I intended to blog about but never did (until now): the weeks-old saga of a $43,000 lawsuit brought against a wedding photographer by the (now) divorced groom, which seeks to force the photographer to recreate the wedding.
The story was originally published several weeks ago by The New York Times.
The story sparked outrage on many legal blogs because the groom’s claim for “specific performance” (i.e., having the photographer recreate the wedding so that satisfactory pictures could be taken) seemed so disingenuous. After all, why would the (now divorced) groom want pictures of what is presumably a bad memory? The lawsuit seemed like the ultimate frivolous/shakedown lawsuit.
Other blogs picked up on a different angle to the story: the groom is the son of Shepard M. Remis, a partner in the Boston office of the national law firm Goodwin Procter, LLP.
A number of blog posts focused on the absurdity of seeking $43,000 in damages when the original contract called for the photographer to be paid only several thousand dollars for his taking the pictures.
Even the judge in the case, in ruling on a motion, said that the damages plaintiff sought are way too high.
What I didn’t see any bloggers saying is that, theoretically, the plaintiff could collect far more in damages than the contract price for the photography. There’s actually a quite famous contract case right on point. The case, Mieske v. Bartell Drug Co., is from Washington state. In Mieske, a woman paid a drug store to splice together a bunch of her home movies onto a single reel. The drug store, however, wound up losing the film.
Mieske filed suit. The question presented to the Washington Supreme Court was: What should the measure of Mieske’s damages be? Are damages limited to the amount that she paid the drug store to splice together the film? Or do proper damages include the emotional value that the film had for Mieske?
The Washington Supreme Court carved out a middle ground. The Court held that Mieske could recover more than the contract price in damages; in other words, Mieske could recover more than the several dollars she paid the drug store to splice together the film.
But a jury was not to value the film simply by the subjective value that Mieske put on it either. To the extent that Mieske was an overly sentimental person, the jury should not compensate her oversentimentality.
What the jury should do, the Supreme Court ruled, is compensate Mieske for the amount that a typical person would place on the emotional loss of the film.
The Mieske case, and others like it, mean that our divorced and disgruntled groom can (theoretically) recover far more than the contract price of the wedding photos.
And such a rule makes sense. Mieske’s loss was much greater than the several dollars spent on film development. And if your wedding photographer screwed up all the pictures of your wedding, the lost value to you would be much greater than the fee you paid the photographer.
In a post yesterday at Overlawyered.com, Walter Olson reported on another situation where emotional damages surpass contract cost: the loss of a pet. Texas’ Supreme Court recently overruled a 12o-year old case saying that pet owners can only recover the purchase price of their pet when someone kills it. The new rule in Texas allows for pet owners to recover emotional distress.
The legal rules found in the Mieske case and the new Texas case make a great deal of sense. But unfortunately, as the recent wedding photography lawsuit shows, they are susceptible to abuse.
And there’s not really much that a judge can do to stop lawsuits like the groom’s. A judge can’t say that the photographs obviously have no emotional value to the groom because the groom is now divorced; that’s something for a jury to decide, not a judge. And from what I’ve read, if this case ever goes to trial, it will result in a defense verdict.
Unfortunately in the meantime, the photographer will have to shell out to pay a lawyer to defend the case.