Fournell v. Usher Pest Control Co.

• Decision Date: 08 May 1981
• Docket Number: No. 43200,43200
• Citation: 305 N.W.2d 605,208 Neb. 684
• Parties: Susan FOURNELL, Appellant, v. USHER PEST CONTROL CO., a corporation, Appellee. David FOURNELL et al., Appellants, v. USHER PEST CONTROL CO., a corporation, Appellee.
• Court: Nebraska Supreme Court

Page 605

305 N.W.2d 605

208 Neb. 684

Susan FOURNELL, Appellant, v. USHER PEST CONTROL CO., a corporation, Appellee.

David FOURNELL et al., Appellants, v. USHER PEST CONTROL CO., a corporation, Appellee.

No. 43200.

Supreme Court of Nebraska.

May 8, 1981.

Syllabus by the Court

1. Damages: Negligence. If an actor's conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another and it results in such emotional disturbance alone without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance.

2. Damages: Negligence. Under the circumstances here, conduct involving the failure of the defendant to discover termite damage to plaintiffs' house did not create an unreasonable risk of causing bodily harm as a matter of law.

Richard D. Sievers of Marti, Dalton, Bruckner, O'Gara & Keating, P. C., Lincoln, for appellants.

Donald R. Witt of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellee.

Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, BRODKEY, WHITE, and HASTINGS, JJ., and COLWELL, District Judge.

McCOWN, Justice.

This is an action for damages for mental or emotional disturbance resulting from alleged negligence of the defendant in connection with a termite inspection of plaintiffs' home. The District Court sustained defendant's motion for summary judgment and plaintiffs have appealed.

In February 1978 the plaintiffs, a young couple with two small children, were in the process of purchasing a new home. As a part of an offer to purchase the house plaintiffs requested a termite inspection and requested that it be done by the defendant. The defendant made the termite inspection and a written report was prepared and delivered. The report stated that there was termite tubing in two described areas and gave an estimated cost of treatment. The plaintiffs interpreted the report to mean that there was evidence of termite activity at one time but that there was no damage present and that defendant recommended treatment. Plaintiffs then employed Mid-State Pest Control, which treated the house for termites. The sale was then closed and plaintiffs moved into the house on March 28, 1978.

In May or June 1978 plaintiff Susan Fournell, in tearing up carpet in the living room, discovered extensive termite damage in the flooring. Plaintiffs called Mid-State and later the defendant, and defendant found active termites in the house and recommended that the house be treated. Plaintiffs then removed the siding and discovered termite activity running all the way to the roof, involving mud sills, plates, windows, doors, casings, and siding. A structural engineer examined the house and estimated the extent and cost of the necessary repairs. Work began in the latter part of June and plaintiffs did much of it themselves.

On July 3, 1978, Susan Fournell consulted a physician because she was constantly crying, could not sleep, and was deeply depressed. On July 19, 1978, she was hospitalized under the care of a psychiatrist who treated her for reactive depression. She was discharged from the hospital on August 6, 1978. She was again hospitalized on September 13, 1978, and discharged on September 21, 1978. She was again hospitalized on October 10, 1978, and discharged on October 18, 1978, as still depressed but no longer actively suicidal. She has continued to be treated by psychiatrists since October of 1978 and the evidence is that her mental and emotional disturbance was caused by the discovery of the termite infestation and damage to her home.

Plaintiffs brought separate actions against the defendant involving Susan's claim for damages for emotional disturbance and David's claim for medical expenses incident to that claim, and a cause of action for property damage. Mid-State Pest Control was joined as a third-party defendant. After the taking and filing of various depositions and answers to interrogatories, the defendant filed motions for summary judgment as to all the causes of action. The District Court overruled defendant's motion for summary judgment with respect to plaintiffs' claim for property damage, and that cause of action remains pending in the District Court.

The District Court found from the evidence adduced that two elements essential to a recovery under Nebraska law for the negligent infliction of emotional trauma were not present: (1) That physical injury resulted from the emotional trauma; and (2) That defendant's negligence placed the injured party, Susan Fournell, in fear of peril for her own safety. The court therefore found that there was no genuine issue as to any material fact and that defendant was entitled to judgment as a matter of law, and dismissed plaintiffs' remaining petitions. This appeal followed.

In the present case there are many genuine issues of fact, including the facts necessary to determine whether either the defendant or the third-party defendant was negligent and whether the plaintiff Susan Fournell suffered severe emotional disturbance with resulting physical disability. However, unless we were to recognize the right of a plaintiff to recover under the circumstances here, none of the facts are material because even if the factfinder resolved every factual dispute in favor of the plaintiff, as we are required to assume would be done, she still would have failed to state a cause of action for negligent infliction of emotional trauma.

Traditionally, recovery for the negligent infliction of emotional trauma was viewed with disfavor by the courts, and the older cases generally rested on broad statements that there was no duty to refrain from the negligent infliction of mental distress. See Spade v. Lynn & Boston Railroad, 172 Mass. 488, 52 N.E. 747 (1899). Modern cases have developed various rules circumscribing defendant's liability in such cases. Basically, such rules rest on policy considerations and there have been few modern cases in Nebraska upon which to base a formulation of current policy.

In the case of Owens v. Childrens Memorial Hospital, Omaha, Nebraska, 347 F.Supp. 663 (D.Neb.1972), the federal district court interpreted the position of this court at that time and determined that even though Nebraska had abrogated the "impact" rule there was still a requirement that some type of physical injury result from the negligently inflicted suffering and that recovery for emotional disturbance must be limited by at least requiring the plaintiff to have been within the "zone of danger or actually put in fear for his own safety." That interpretation was correct.

Restatement (Second) of Torts § 436 A (1965) provides: "If the actor's conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance."

In the case at bar, when the termite damage was discovered by the plaintiffs no physical injury resulted to anyone, nor was Susan Fournell placed in fear of bodily harm to herself or anyone else. The plaintiffs' claim for damages here rests on mental and emotional disturbance and distress alone.

It should be noted also that under the Restatement rules relative to liability for the negligent infliction of emotional distress or disturbance, §§ 313, 436, and 436A, liability is predicated on conduct deemed negligent because it involves an unreasonable risk of causing bodily harm to a person, not damage to property. On the evidence in this case it is evident that conduct involving the failure of the defendant to discover termite damage to plaintiffs' house did not create an unreasonable risk of causing bodily harm to Susan Fournell as a matter of law.

Plaintiffs assert that the case of Rasmussen v. Benson, 135 Neb. 232, 280 N.W. 890 (1938), fully supports plaintiffs' position in the case at bar. We disagree. Rasmussen is distinguishable on the basis pointed out in the Owens case. It is also apparent that the court in Rasmussen regarded the defendant's conduct in disposing of a poison label and selling bran with a tremendous amount of arsenic in it at a public sale without warning or labeling of any sort as creating such an unreasonable risk of harm to persons as to be reckless and wanton to such a degree that it approached intentional injury. In any event, the case at bar is no current version of Rasmussen.

Policy considerations primarily determine whether a particular plaintiff is entitled to redress for a particular wrong or that a defendant is entitled to restrictions limiting liability. Be that as it may, the law must also recognize that not every human loss arising out of another's conduct constitutes a legal injury for which compensation will be available. See Prosser, Law of Torts 1 (4th ed. 1971).

The judgment of the District Court was correct and is affirmed.

AFFIRMED.

KRIVOSHA, Chief Justice, dissenting.

I find that I must respectfully dissent from the majority in this case.

At the outset, I think it important to keep in mind that only a limited question is before us. Simply stated, it is whether the defendant is entitled to a summary judgment because, as a matter of law, Mrs. Fournell has failed to state a cause of action and failed to raise a genuine issue of fact. In contrast, we have in essence decided this case as if a demurrer had been filed by the defendant. It could very well be that, upon trial, Mrs. Fournell would be unable to prove the essential elements of her claim or the jury would be unwilling to find in her favor. That is not the issue before us. The sole and only issue before us is whether Mrs. Fournell is entitled to have her day in court.

The matter of granting summary judgment is not to be lightly taken and is never to be a substitute for trial. In Ingersoll v. Montgomery Ward & Co., Inc., 171 Neb. 297, 300, 106 N.W.2d 197, 199 (1960), we ...