French v. Ralph E. Moore, Inc.

• Decision Date: 07 April 1983
• Docket Number: No. 82-246,82-246
• Citation: 661 P.2d 844,40 St.Rep. 481,203 Mont. 327
• Parties: John B. FRENCH and Ruth French, Plaintiff and Respondent, v. RALPH E. MOORE, INC., d/b/a Interstate Texaco Service Station, Defendant and Appellant.
• Court: Montana Supreme Court

Page 844

661 P.2d 844

203 Mont. 327

John B. FRENCH and Ruth French, Plaintiff and Respondent, v. RALPH E. MOORE, INC., d/b/a Interstate Texaco Service

Station, Defendant and Appellant.

No. 82-246.

Supreme Court of Montana.

Submitted Dec. 16, 1982.

Decided April 7, 1983.

Berg, Coil, Stokes & Tollefsen, Gig A. Tollefsen argued, Bozeman, for defendant and appellant.

Goetz, Madden & Dunn, James H. Goetz argued, Bozeman, for plaintiff and respondent.

SHEA, Justice.

The defendant, Ralph E. Moore, Inc. d/b/a Interstate Texaco Service, appeals a judgment entered on a jury verdict in Park County District Court. The action was a suit for damages arising out of injury to real property caused by gasoline contamination or pollution of the plaintiffs' restaurant and family home. The suit was based on nuisance, trespass, and negligence theories. The jury awarded $58,500 to John and Ruth French for diminution of value of the property, for loss of use of the property, and for income lost through closure of the restaurant. The jury also awarded $40,000 to John French and $150,000 to Ruth French for pain, discomfort, fears, anxiety, annoyance, inconvenience and other mental, physical and emotional distress suffered by the plaintiffs as a result of the invading gasoline vapors. Interstate Texaco appeals only from the $40,000 and $150,000 awards. Interstate Texaco contends the jury was given an improper instruction and further that the jury verdict was excessive and rendered under the influence of passion or prejudice. We affirm.

On January 14, 1981, strong odors of gasoline were detected in the basement of a Livingston restaurant owned and operated by John and Ruth French. The family home is located on the same lot behind the restaurant and the Frenches live there with their two daughters. Livingston fire officials investigated the odor and immediately ordered the closure of the restaurant because of the danger posed by the strong concentration of gasoline fumes. The presence of gasoline fumes has continued at the restaurant and family residence since January 14, 1981, and the restaurant has remained closed on order of the Livingston fire officials.

The contamination suit was based on trespass to real property, negligence, and nuisance. The Frenches sought damages for business losses such as loss of income caused by closure of the business, loss of use of the property caused by the gasoline fumes, and diminution of value of the property caused by the presence of gasoline fumes. In addition, they sought damages for pain, discomfort, fears, anxiety, annoyance, inconvenience and other mental, physical and emotional distress suffered as a result of the invading gasoline fumes. Before trial Interstate Texaco moved to strike this last claim for damages on the ground it was not permitted by Montana law. The motion was denied. The claim is asserted again in this appeal.

Gasoline fumes, at various levels of concentration, were present in the restaurant and home during 1981 and 1982 to the time of trial. From the time of the restaurant closure on January 14, 1981 to the time of trial in March 1982, the restaurant and home were tested for gasoline fume concentration. Livingston fire officials used a device called a Bacharach Sniffer (sniffer)--which detects gasoline hydrocarbons in the atmosphere in parts per million (ppm). The readings commonly established a hydrocarbon presence at levels dangerous to human health.

Dr. Samuel Rogers, a biochemist at Montana State University, testified that the sniffer readings at the French property indicated a clear "human health hazard." Based on learned treatises in the field, he testified that it is not safe, from a physiological standpoint, to enter a room for even a brief period of time which has gasoline concentrations of 2,000 ppm. He also testified that benzene, a constituent of gasoline, is a known carcinogen (cancer-causing agent) and a leukemogen (an agent that causes leukemia). He characterized benzene as genetically toxic.

The fire department readings during 1981 and 1982 indicated health-endangering concentrations of hydrocarbons. On January 14, 1981, when the restaurant was closed, the sniffer readings in the French home were 15-20 ppm, considerably above the safety standards set by the Federal Occupational Safety and Health Administration. On the same day, however, the sniffer readings in the basement of the restaurant had readings ranging from 8,000 to 9,000 ppm and 900 ppm at the top of the basement stairs of the restaurant. The sniffer readings in 1982 were comparable to those in 1981, and those readings ranged at times from 0 to 9,600 ppm. The levels of gasoline hydrocarbons routinely exceeded 2,000 ppm on the French property.

From the first time he took sniffer readings in the basement of the French home, and at various intervals thereafter, Fire Marshall Warren Case, told the Frenches that it was not a good idea to stay in the home because of the health and safety hazards. Fire Marshall Case also testified that while conducting the sniffer readings he got lightheaded and dizzy. The gasoline smell stayed on his clothes after he left the building and, after he had left the building other people had remarked about the smell of gasoline on his clothes. The Livingston Fire Chief, Bob Hampson, testified that after leaving the French premises and returning to the fire station about 14 or 15 blocks away, he could still taste the gas.

The closure of the restaurant caused other problems for the Frenches. Although the restaurant was not their only source of income, the uncontradicted testimony is that they did not have the finances to move from the family home to another place. The Frenches had also invested a good portion of their life savings in the home and business, and because of the gasoline vapors, they stood to lose both. At the time of the restaurant closure, a loan of $105,000 was still owed to financial institutions. Before the restaurant closure, John French always made his payments on a regular basis. However, they could not make the February, March and April 1981 payments and finally the Frenches obtained a suspension of the monthly payments owed until the closure problem was resolved. Nonetheless, interest on this $105,000 loan continued to accrue at the rate of over $55 per day. The business problems alone caused the Frenches a great deal of stress and mental anguish.

The uncontradicted testimony of the Frenches established that despite the warnings from the fire department officials not to stay in the house because of the high hydrocarbon readings, they could not afford to move anywhere else and that no one had offered to help them move pending a resolution of the gasoline fume problems.

The gasoline fumes caused physical, mental, and emotional problems for the Frenches. Although John French testified that the only symptoms he had were dizziness at times, which would be alleviated by simply getting out of the house, other members of the family were not so fortunate.

Ruth French testified that after the onset of the gasoline fumes, she developed a duodenal ulcer and that the continuing stress caused because of the gasoline fumes problem caused her ulcer to flare up. The gasoline fumes affected her more than any member of the family. The fumes got into her sinuses, caused headaches, and she would in turn become nauseous. Often she was forced to vomit. One of the Frenches' daughters complained of headaches and dizziness, and her eyes watered to such an extent that she was always putting a solution in them to alleviate the problem. The other daughter is mentally retarded, and although she had complained of no problems for most of the time, about one month before trial, she began complaining of headaches and dizziness.

The strong smell of gasoline, particularly in the basement, often prevented the family from using the basement, which includes a family room, a bathroom, a bedroom, and a laundry room. Fire department officials warned them not to use the clothes dryer for fear of causing an explosion. The Frenches were forced with solving a problem beyond their control. They took efforts, at the suggestion of the fire department, to eliminate the gasoline fumes from their home, but the problems continued.

The case was tried on theories that Interstate Texaco negligently installed the gas tanks at the service station and so caused the gasoline leaks leading to the contamination of the French property, that in permitting the gas to leak from its tanks, Interstate Texaco caused and permitted a nuisance to exist, and that the invading gasoline fumes constituted trespass to the French property. In instructing the jury on the measure of recovery, one instruction stated in part that the jury could award damages for "... pain, discomfort, fears, anxiety, annoyance, inconvenience, and other mental, physical, and emotional distress." With the exception of the element of pain, Interstate Texaco objected to this instruction on the ground that the pleadings did not permit recovery for these factors of damage and that the evidence did not support recovery for these factors of damage. The objection was overruled.

After trial, Interstate Texaco moved for a new trial on the same ground. The motion was denied. Throughout the trial court and appellate proceedings, Interstate Texaco has ignored the fact that the case was submitted to the jury on the theories of nuisance and trespass as well as negligence. Based on its underlying and erroneous assumption that the case was tried only on a negligence theory, or that the jury returned its verdict based only on a negligence theory, Interstate Texaco complains now that the instruction setting forth the damages recoverable, was in error.

As we have stated, the underlying action here is a suit for damages arising out of injury to real property caused by gasoline contamination or pollution of the Frenches' restaurant building and...