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Gavcus v. Potts

decided: December 18, 1986.


Appeal from the United States District Court for the Eastern District of Wisconsin, No. 84 C 333 - Myron L. Gordon, Judge.

Author: Fairchild

Before POSNER and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

FAIRCHILD, Senior Circuit Judge. Constance Gavcus brought an action in district court against members of the Potts family for trespass and unlawful removal of silver coins from her home.*fn1 The jury returned a special verdict finding an unauthorized removal of property and awarding Mrs. Gavcus the cost of installing new locks and an alarm, attorney's fees incurred in a prior action concerning the silver coins, and punitive damages. The district court set aside the jury's damage awards and entered judgment of Mrs. Gavcus for nominal damages of one dollar. Mrs. Gavcus appeals from that judgment.

Mr. Gavcus died in March of 1981. Lillian Potts was Mr. Gavcus' daughter by a prior marriage and was a residual beneficiary under her father's will. Lillian's family*fn2 attended his funeral and left several days afterwards after staying with Mrs. Gavcus' home the day after they left and, in her absence, removed a large quantity of silver coins valued at more than $150,000. The deputy who investigated the removal of the coins contacted Mrs. Potts, who later returned the coins to the sheriff's office. A couple of weeks later, Mrs. Gavcus hired an attorney to get the coins back for her. The attorney initiated a proceeding pursuant to § 968.20 of the Wisconsin Statutes for return of the coins.*fn3 The proceeding under § 968.20 was merged with the probate proceeding in the Circuit Court of Waupaca County, which had begun the month after Mr. Gavcus died. In the probate proceeding Mrs. Potts challenged the ownership of the coins, which Mrs. Gavcus asserted were her individual property. If the coins were jointly owned by Mr. and Mrs. Gavcus or were the property of the estate instead of being Mrs. Gavcus' individual property, we are told that Mrs. Potts' share under the will would have increased.*fn4 The circuit court determined that the coins belonged to Mrs. Gavcus individually and ordered their return pursuant to the § 968.20 motion. Mrs. Gavcus then brought the suit at bar for damages, including the attorney fees she incurred in the prior litigation.


Mrs. Gavcus did not claim any physical injury to the real property. The court did allow her to offer evidence of the cost of new locks and the burglar alarm she installed after the removal of the coins, and of the amount of attorney's fees incurred in the earlier litigation. Apparently the district court had some doubt as to the propriety of these items of damage and chose to admit the evidence and submit questions concerning those items in a special verdict, and to address the legal questions after the verdict was returned. The appeal arises from the court's determination that these items were not properly recoverable as damages. The jury had awarded by special verdict $3,126 for the cost of locks and a burglar alarm and $12,000 in attorney's fees.

Nominal compensatory damages can be awarded when no actual or substantial injury has been alleged or proved, since the law infers some damage from the unauthorized entry of land. Additionally, compensatory damages can be awarded for actual or substantial injury to realty. These latter damages are generally measured by the cost of restoring the property to its former condition or by the change in value before and after the trespass. Consequential damages can also be recovered for a trespass, since a trespasser is liable in damages for all injuries flowing from his trespass which are the natural and proximate result of it. One such compensable result of a trespass is personal injury to the owner of the land. If a trespass causes mental distress, the trespasser is liable in damages for the mental distress and any resulting illness or physical harm. 22 Am. Jur. 2d Damages § 136; 38 Am. Jur. 2d Fright, Shock, and Mental Disturbance § 30; 75 Am. Jur. 2d Trespass § 53.

The installation of locks and a burglar alarm was not a repair of physical damage, and the cost was not recoverable as compensation for injury to property. Mrs. Gavcus theory is that the trespass had caused an impairment of her sense of security and that the installation became reasonably necessary on account of that impairment.

We reject the theory, however, for two reasons. Impairment of her sense of security would amount, if anything, to a type of emotional distress. Mrs. Gavcus was not prepared to produce medical or other expert testimony on the subject. Judge Gordon ruled that lay evidence would be inadmissible, and Mrs. Gavcus has not argued the ruling was erroneous. Thus there was a failure of proof as to the nature, extent, and causation of any emotional distress, or cost of required treatment.

Second, assuming that she could have proved that the trespass caused increased nervousness, uneasiness, and worry, she cites no authority, nor was any authority found, which shows that the cost of an improvement to property intended to alleviate distress of that type would be properly allowable as damages.

Mrs. Gavcus argues, however, that Wisconsin has expanded the scope of damages for which a plaintiff may receive compensation in a trespass action, citing Prahl v. Brosamle, 98 Wis. 2d 130, 295 N.W.2d 768 (Wis. Ct. App. 1980). She argues that Prahl expands the scope of damages to include damages for nonphysical injury, and then contends that she experienced such injury because her ability to enjoy her property had been impaired. Disregarding the fact that Prahl is the decision of an intermediate court and the issue has not yet reached the Supreme Court of Wisconsin, we do not think that Prahl applies to the case at bar.

In Prahl, the defendant news reporter entered the plaintiff's property while investigating a police response to a call that young boys had been shot at from the plaintiff's property. He later broadcast an allegedly defamatory statement about the plaintiff based upon the information he obtained while on the plaintiff's property. The trial court found that the plaintiff had failed to show any damage to the premises and that the damage, if any, from the broadcast was caused by the defendant's presence on the property. The trial court concluded that any injury caused by the report was not compensable under a trespass claim.

The Wisconsin Court of Appeals noted, however, that compensatory and punitive damages have been recovered from defendants in similar trespass situations. See Belluomo v. KAKE TV & Radio, 3 Kan. App. 2d 461, 596 P.2d 832 (1979); Le Mistral, Inc. v. Columbia Broadcasting, 61 A.D.2d 491, 402 N.Y.S.2d 815 (1978). Both of the cited cases involved situations in which members of the news media entered a plaintiff's property and caused nonphysical harm. The Wisconsin Court of Appeals indicated that "extension to include non-physical harm from an intrusion of the type involved here is reasonable. To allow only nominal damages under the circumstances presented because of lack of physical harm would permit the trespasser to enjoy the benefits of his tort without fully compensating a plaintiff for his loss." Prahl, 98 Wis.2d at 153, 295 N.W.2d at 781-82. The court of appeals granted a new trial on the trespass issue, extending the type of harm that is compensable in a trespass action to nonphysical harm of the type involved in Prahl.

The court in Prahl specifically confined the type of harm that is compensable to the harm suffered as a result of an unlawful entry at the hands of a member of the news media. The facts in Prahl are easily distinguishable from the case at bar and the Wisconsin appellate court gave no indication that damages could be awarded for anything other than the type of harm involved in that case. Assuming that the theory of Prahl would be followed by the Supreme Court of ...

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