Sullivan v. O’Connor Brief
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Identification of the case
o Sullivan v. O’Connor
o 1973
o Massachusetts Supreme Court
o Dr. James O’Connor, the defendant, put forward an exception to the damages awarded
to Alice Sullivan, the plaintiff, resulting in the previous ruling.
 The exception states that he should not have to beyond restitution (the direct
monetary costs of repeat surgeries, medication, and other medical costs) and
questions the accuracy of the judge’s instructions to the jury on how to estimate
the proper amount of damages that should be awarded
o The plaintiff also put forward an exception wanting compensation for the difference in
value between the nose delivered and the one promised
Procedural history
o Went through trial court as chosen by Ms. O’Connor and resulted in $13,500 of damages
awarded to the plaintiff
o The plaintiff sued on two counts
 1.) the plaintiff alleges that she entered into a contract with the defendant
promising that the surgeon would “fix” her nose
 It instead “disfigured’ her and caused damage to her mind and body
 2.) there was malpractice due to negligence of the surgery
Facts
o Sullivan was an entertainer who went under the knife to reduce the size of the nose in
order to “enhance her beauty”
 She underwent too many surgeries that worsened the situation
o She did not lose employment because of the surgery
o The judge told the jury that she was entitled to out of pocket expenses along with other
damages that resulted from her disfigurement including “effects on her conscious” such
as pain and suffering
 This is also supposed to focus on the third (extraneous) surgery that resulted
from the surgeon attempting to “fix” his error on her nose
o The defendant put forward an exception which stated that the judge had made an error
in telling the jury to award damages beyond out of pocket expenses ($622.65)
o The plaintiff put forward her own exception stating that the judge should have taken
into consideration the difference in value between the nose as promised and the nose
that was delivered but this was later waived
Issue
o Did the judge err in telling the jury to take into account pain and suffering for awarding
damages? (narrow)
o Can damages include non-monetary losses such as pain and suffering resulting from a
breach in contract? (broad)
Holding
o
o
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Dicta
o
o
Rule
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No, the judge acted appropriately by awarding the plaintiff beyond just recovery
(narrow)
 As such The defendant’s exceptions should be overruled
Yes, so long as the defend could foresee the consequences of a breach of contract
(broad)
The measure to which damages are awarded are based on outing the plaintiff in a the
same position he was just before the two parties entered the agreement
It isn’t an expectancy nor a restitution measure
The amount of damages that a plaintiff is entitled is intended to put the plaintiff in the
same position as if the contract was performed as promised
 Restatement: Contracts Section 329 and comment (a) Sections 347 and 384
 Hawkins v. McGee
o Pain and suffering is can only be compensated if they are foreseeable consequences of a
breach of contract by the defendant
 Restatement: Contracts, section 341
 If plaintiff was put through more pain that he would have had to endure if the
surgeon delivered, then compensation for that is part of the damages.
 Hawkins
Reasoning
o The court argues that the suffering and pain underwent by Ms. Sullivan was certainly
conceivable by the defendant before the surgery had he failed to deliver what was
promised (in other words more surgery). The treatment failed therefore that suffering
was “wasted”. As such, he should be required to pay beyond the recovery of out-ofpocket expenses which includes exacerbating her condition and the pain and suffering
resulting from a third surgery. This payment is meant to put the plaintiff in the same
position before the contract was enacted. Because the plaintiff waived her exception,
there is no argument as to whether “expectancy” should be taken into account for
damages.
Disposition
o Defendant’s exceptions overruled
o Plaintiff’s exceptions waived