Brown v. Fritz

• Decision Date: 02 May 1985
• Docket Number: No. 15311,15311
• Parties: Arlene F. BROWN, Plaintiff-Respondent-Cross Appellant, v. George T. FRITZ and Phyllis M. Fritz, husband and wife, Defendants-Appellants- Cross Respondents, and Daniel Manning, Does I Through V, Inclusive, and All Other Persons Unknown and Claiming Any Right, Title, Estate, Lien or Interest In the Real Property Described In the Complaint Adverse to Plaintiff's Ownership, or Which Constitute Any Cloud of Plaintiff's Title Thereto, Defendants.
• Court: Idaho Supreme Court

Page 1371

699 P.2d 1371

108 Idaho 357

Arlene F. BROWN, Plaintiff-Respondent-Cross Appellant, v. George T. FRITZ and Phyllis M. Fritz, husband and wife, Defendants-Appellants- Cross Respondents and Daniel Manning, Does I Through V, Inclusive, and All Other Persons Unknown and Claiming Any Right, Title, Estate, Lien or Interest In the Real Property Described In the Complaint Adverse to Plaintiff's Ownership, or Which Constitute Any Cloud of Plaintiff's Title Thereto, Defendants.

No. 15311.

Supreme Court of Idaho.

May 2, 1985.

Kevin F. Trainor and John A. Doerr, Twin Falls, defendants, appellants-cross respondents.

Rand L. Peebles, Ketchum, Charles L. Hay, Cascade, for plaintiff-respondent-cross appellant.

SHEPARD, Justice.

This is an appeal from a judgment which allowed damages for the negligent infliction of emotional distress. Plaintiff-respondent Brown brought the action against the Fritzes, from whom she purchased real property, for misrepresentation of title, misrepresentation of the condition of the property, and negligent infliction of emotional distress. Daniel Manning was also joined as a defendant, in order to clear title to the property in question. Following trial by jury, title was quieted in plaintiff and she was awarded damages, both for the misrepresentation of the condition of the property prior to the sale and for negligent infliction of emotional distress. We reverse as to the only issue on appeal, that being the award of damages for negligent infliction of emotional distress.

Although many of the facts were hotly contested, since plaintiff prevailed at trial, we view the case in the light most favorable to her. Higginson v. Westergard, 100 Idaho 687, 604 P.2d 51 (1979); Matter of Estate of Webber, 97 Idaho 703, 551 P.2d 1339 (1976).

Brown was interested in buying a residence property in the vicinity of Hailey, Idaho. In the company of a realtor, she viewed the Fritz property in the Fritzes' absence. Brown and the realtor returned the following day while the Fritzes were at the residence. Defendant Fritz then displayed the property to Brown and made several representations relating to the insulation, the number of septic tanks, and the boundary lines of the property. Brown relied upon these representations and upon those made in the listing agreement, including that the lot size was 7.3 acres. Brown subsequently purchased the house for $105,000.

Following Brown's taking possession of the residence, a large number of defects became apparent, indicating to Brown that Fritz had misrepresented the condition of the property. Among the more serious defects were the faulty design and the malfunction of the sewage system, which caused raw sewage to accumulate beneath the house and which, because of the winter weather, could not be immediately remedied. Also, shortly after Brown occupied the property, defendant Manning approached her and informed her that, prior to the Brown purchase, Fritz had sold roughly two of the 7.3 acres to Manning.

There is no question but that Brown felt required to spend approximately $10,000 to repair the deficiencies of the property. There is also no question but that Brown felt compelled to dispose of the property. She sold that portion to which she could give clear title for approximately $150,000, and she signed a contract with the new purchaser to sell the two acres in dispute for $25,000, once title could be cleared.

Brown brought an action against the Fritzes and Manning for damages for fraudulent misrepresentation, for breach of contract, for negligent infliction of emotional distress, for punitive damages, and to quiet title in herself to the disputed two acres.

During trial, the district judge ruled that the plaintiff's evidence was not sufficient to warrant submission to the jury of plaintiff's claim for punitive damages. Hence, the jury was not instructed as to punitive damages and the special verdict form contained no provision for an award of punitive damages. Although plaintiff has cross-appealed on other issues, there is no assertion of error regarding this withholding of the punitive damage claim from the jury. Also at trial, plaintiff stipulated that she was making no claims against Manning for punitive damages or damages for infliction of emotional distress. Hence, the action as it related to Manning involved only the quieting of title to the property and is not on appeal.

In response to the court's questions on the special verdict form, the jury found in favor of plaintiff Brown in the quiet title action and awarded her damages from Fritz on that claim in the amount of $625. The jury also found in favor of Brown on her claim against defendant Fritz of misrepresentation, and the jury set those damages at $2,100. Finally, the jury found that there had been negligent infliction of emotional distress by the Fritzes, and it awarded damages therefor in the amount of $15,000.

As earlier stated, defendants-appellants Fritzes' sole assertion of error is the award of damages for negligent infliction of emotional distress. The tort of infliction of emotional distress and the elements necessary to such a cause of action have been the subject of several recent cases before this Court, and these cases illustrate some disagreement among the Court's membership.

In Summers v. Western Idaho Potato Processing, 94 Idaho 1, 479 P.2d 292 (1970), Summers, an employee of defendant, was injured when part of her clothing became entangled in some machinery. She received workmen's compensation for that injury and then brought an action in effect for emotional distress arising from her clothing's having been torn off and her having been left nude before her fellow employees. The Court, in a cursory opinion, held that her recovery for physical injuries was barred by the workmen's compensation law and that, if she was seeking to recover for purely emotional trauma, unaccompanied by injury, there was no common law right of recovery.

In Hatfield v. Max Rouse & Sons Northwest, 100 Idaho 840, 606 P.2d 944 (1980), the Court, as then constituted, was presented with a jury award of damages for breach of contract, an additional award for emotional distress, and a still additional award of punitive damages. On appeal, the Court reversed the damage awards for both emotional distress and punitive damages. There has been criticism of the Hatfield decision, see Cheney v. Palos Verdes Inv. Corp., 104 Idaho 897, 906, 665 P.2d 661, 670 (1983) (Bistline, J., concurring); Rasmuson v. Walker Bank & Trust Co., 102 Idaho 95, 101, 625 P.2d 1098, 1104 (1981) (Bistline, J. specially concurring). It seems clear that the Hatfield opinion, insofar as the law of punitive damages is concerned, has been superseded by subsequent cases. See Cheney v. Palo Verdes Inv. Corp., 104 Idaho 897, 665 P.2d 661 (1983). Nevertheless, we deem it desirable, since only one member of the Court sat in Hatfield, to clearly adhere to or to overturn the Hatfield decision, insofar as it relates to damages for emotional distress.

Hatfield dealt with both the intentional infliction of emotional distress as a tort, and the tort of negligent infliction of emotional distress. The Court held that, even assuming that physical or constructive impact was not required for a successful suit for damages for intentional infliction of emotional distress, this tort "is generally held to lie only in the presence of outrageous intentional conduct on the part of the defendant ...," and there was no indication in Hatfield of such "level of outrageousness." 100 Idaho at 849-850, 606 P.2d at 953-954. As to the tort of negligent infliction of emotional distress, the Court noted that courts "almost universally require that the actions of the defendant cause some physical injury to the plaintiff which accompanies the emotional distress," 100 Idaho at 851, 606 P.2d at 955 (emphasis added). Citing Summers, supra, the Court held that since there was no physical injury involved, the tort of negligent infliction of emotional distress did not lie, and therefore, the Court reversed the damages award for that tort.

The Court in Hatfield also sought to distinguish actions "asserted in connection with the independent torts of negligent or intentional infliction of emotional distress," and "claims ... asserted as part of the measure of recovery for some independent wrong perpetrated on the plaintiff by the defendant, such as a breach of contract." 100 Idaho at 846, 606 P.2d at 950, (emphasis supplied). As to actions for breach of contract, the Court held, "As a matter of law, then, the award could be based on the breach of contract only if such harm were within the contemplation of the parties at the time they formed the contract, and if the breach were wanton or reckless." The Court stated that the general rule from other jurisdictions is that upon a breach of contract, damages for emotional distress may be awarded "only when the breach is wanton or reckless and where ... such damages were within the contemplation of the parties at the time they formed the contract, Hadley v. Baxendale, 9 Ex. 34, 156 Eng.Rep. 145 (1854), and where the breach of contract also causes physical injury." (Emphasis added.) The Court also quoted the Restatement of Contracts § 341 (1932), indicating the necessity "that the defendant had reason to know when the contract was made that the breach would cause mental suffering for reasons other than mere pecuniary loss." 100 Idaho at 847, 606 P.2d at 951.

The Court in Hatfield then examined the award of damages for emotional distress resulting from a breach of a contract in light of whether the contract was "commercial" or "non-commercial," and stated, "Evidence of the commercial nature of the contract may bear upon that question, but it does not absolutely decide it. The answer will always turn on the facts of the particular case." 100 Idaho at 847, 606 P.2d at 951. Evidently, the Court intended to indicate a...