Hansen v. Mountain Fuel Supply Co., 900420

• Citation: 858 P.2d 970
• Decision Date: 04 August 1993
• Docket Number: No. 900420,900420
• Parties: Tom HANSEN, an individual; Douglas A. Hilton, an individual; Mike MacKintosh, an individual; Bruce Silcox, an individual; and Russell Vickers, an individual, Plaintiffs and Appellants, v. MOUNTAIN FUEL SUPPLY COMPANY, a Utah corporation; Roger Barrus, an individual; Roger Morse, an individual; and John Does I through XXV, Defendants and Appellees. MOUNTAIN FUEL SUPPLY COMPANY; Roger Barrus, an individual; and Roger Morse, an individual, Third-Party Plaintiffs, v. CCI MECHANICAL, INC., a Utah corporation (formerly known as Climate Control, Inc.), Third-Party Defendant.
• Court: Supreme Court of Utah

Page 970

858 P.2d 970

62 USLW 2168

Tom HANSEN, an individual; Douglas A. Hilton, an

individual; Mike MacKintosh, an individual;

Bruce Silcox, an individual; and

Russell Vickers, an individual, Plaintiffs and Appellants, v. MOUNTAIN FUEL SUPPLY COMPANY, a Utah corporation; Roger

Barrus, an individual; Roger Morse, an

individual; and John Does I through

XXV, Defendants and Appellees.

MOUNTAIN FUEL SUPPLY COMPANY; Roger Barrus, an individual; and Roger Morse, an individual, Third-Party Plaintiffs, v. CCI MECHANICAL, INC., a Utah corporation (formerly known as

Climate Control, Inc.), Third-Party Defendant.

No. 900420.

Supreme Court of Utah.

Aug. 4, 1993.

James E. Morton, Ronald C. Wolthuis, Salt Lake City, for plaintiffs.

Spencer E. Austin, Gordon L. Roberts, William J. Evans, Ray G. Groussman, Charles E. Greenhawt, Salt Lake City, for defendants.

DURHAM, Justice:

Plaintiffs were exposed to asbestos while performing renovation work for Mountain Fuel. They appeal from an order of summary judgment on their claims for personal injury, negligent infliction of emotional distress, and the costs of medical monitoring granted on the ground that plaintiffs have not suffered bodily injury. We reverse the order regarding the claims for medical monitoring but affirm the rulings on personal injury and negligent infliction of emotional distress.

In reviewing a summary judgment, we consider the facts in the light most favorable to the nonmoving party. We affirm only when there is no material issue of disputed fact and the moving party is entitled to judgment as a matter of law. D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989). Further, because a challenge to a summary judgment presents only issues of law, we give no deference to the trial court's conclusions; instead, we review those conclusions for correctness. Bonham v. Morgan, 788 P.2d 497, 499 (Utah 1990) (per curiam).

Plaintiffs Hansen, Hilton, MacKintosh, Silcox, and Vickers were employees of CCI Mechanical, Inc. ("CCI"). CCI had contracted with Mountain Fuel to do renovation work in the basement of Mountain Fuel's downtown Salt Lake City office. The project included rerouting asbestos-insulated piping and equipment. As part of the project, brick insulation was removed from a breach in the basement area and piled nearby; it was later moved and stacked in an adjacent walkway. Sometime in August 1986, plaintiffs expressed concern about the composition of the insulation. A Mountain Fuel representative told the CCI foreman that the insulation was not asbestos, that all the asbestos in the area had been removed seven years earlier, and that it was a harmless substance, calcium silicate. During plaintiffs' work, the insulation was crushed and tracked through the work site. ¹ Because of some ventilation problems, the particles became airborne and the workers had to take periodic breaks to clean the dust from their noses and mouths. In November 1986, Vickers again expressed concern to defendant Roger Barrus, the safety director for Mountain Fuel, that the insulation might be asbestos. Barrus had the material tested and learned that it was 60-65 percent amosite asbestos and less than 1 percent crysotile asbestos. Mountain Fuel subsequently had the asbestos removed from the project.

Plaintiffs allege that they experienced coughing, wheezing, shortness of breath, chest tightness, headaches, and severe eye irritation as a result of their exposure. They also claim that they suffered anxiety and sleeplessness stemming from their fear of contracting serious diseases as a result of their exposure to asbestos. None of them currently suffer from any asbestos-related disease. Aside from initial examinations that revealed no illness that could be traced to their exposure, plaintiffs have had no further medical examinations, nor have they incurred any medical expenses or claimed lost wages or income as a result of their exposure.

I. CURRENT INJURY

Plaintiffs first contend that their exposure to asbestos resulted in "severe coughing, respiratory distress, chest tightness, headaches, severe eye irritations and nausea" and that they should be compensated for those injuries. ² They have not presented sufficient evidence, however, to show that these symptoms were caused by their exposure at Mountain Fuel. In 1987, Hansen, Hilton, Silcox, and Vickers were examined by Dr. Battigelli at the Occupational Clinic for the Department of Family and Preventive Medicine at the University of Utah. After the examination, Dr. Battigelli concluded that plaintiffs' exposure was "limited and perhaps inconsequential" and that "[n]one of these individuals presented at our examination evidence of respiratory disorders which could be meaningfully related to that specific exposure." We have found no other evidence in the record regarding any illness or symptoms suffered by MacKintosh. Thus we have nothing more than plaintiffs' bare allegations to support their claims of harm. Such allegations are insufficient to withstand summary judgment. See Thornock v. Cook, 604 P.2d 934, 936 (Utah 1979).

Plaintiffs may, of course, bring another action if and when they do develop a serious disease as a result of their exposure. Defendants have conceded that pursuant to the discovery rule, the statute of limitations would not bar such a future claim.

II. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS ³

Defendants contend that plaintiffs cannot recover for negligent infliction of emotional distress ("NIED") because they have not demonstrated that their emotional distress resulted in illness or bodily harm. We have never squarely considered whether a plaintiff seeking recovery for NIED must demonstrate that the emotional distress has manifested itself in physical symptoms.

In Johnson v. Rogers, 763 P.2d 771 (Utah 1988), we first recognized an action for negligent infliction of emotional distress. In Johnson, the plaintiff and his eight-year-old son were waiting at a crosswalk when a truck jumped the curb, injuring the plaintiff and killing his son. The plaintiff claimed damages for the emotional distress suffered as a result of the incident. This court sustained the plaintiff's cause of action and adopted the approach set forth in section 313(2) of the Second Restatement of Torts (the "zone of danger" rule) for determining liability for the negligent infliction of emotional distress. Johnson, 763 P.2d at 785. Section 313 provides:

(1) If the actor unintentionally causes emotional distress to another, he is subject to liability to the other for resulting illness or bodily harm if the actor

(a) should have realized that his conduct involved an unreasonable risk of causing the distress, otherwise than by knowledge of the harm or peril of a third person, and

(b) from facts known to him should have realized that the distress, if it were caused, might result in illness or bodily harm.

(2) The rule stated in subsection (1) has no application to illness or bodily harm of another which is caused by emotional distress arising solely from harm or peril to a third person, unless the negligence of the actor has otherwise created an unreasonable risk of bodily harm to the other.

Restatement (Second) of Torts § 313 (1965). In Johnson, we were primarily concerned with the application of the rule outlined in subsection (2). In the instant case, plaintiffs are not seeking recovery for trauma inflicted on them because of harm or peril to one nearby; plaintiffs allege that they themselves inhaled asbestos. ⁴ See Johnson, 763 P.2d at 781-82 (opinion of Durham, J.) (discussing distinction between bystander and direct-victim NIED). Thus subsection (1), rather than subsection (2), applies to this case. Subsection (1) provides liability only for "resulting illness or bodily harm." Defendants contend that plaintiffs do not meet this requirement.

Most courts require some sort of injury or physical manifestation of distress as a prerequisite to recovery for NIED. See, e.g., Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668, 669 (1979); Brown v. Cadillac Motor Car Div., 468 So.2d 903, 904 (Fla.1985); Brown v. Matthews Mortuary, Inc., 801 P.2d 37, 42 (Idaho 1990); Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171, 178-80 (Mass.1982); Thorpe v. Department of Corrections, 133 N.H. 299, 575 A.2d 351, 353 (1990). Such a requirement provides a check on feigned disturbances, thereby ensuring the genuineness of claims. Moreover, emotional disturbance that is not severe enough to result in illness or physical consequences is likely to be in the realm of the trivial. Such a disturbance is likely to be so temporary and subjective that to attempt to compensate it would unduly burden defendants and the courts. See Restatement (Second) of Torts § 436A cmt. b (1965); Payton, 437 N.E.2d at 178-79 (citing the Restatement).

Although many courts agree that a plaintiff must establish some accompanying physical manifestation in order to recover for NIED, they differ widely regarding the nature of evidence sufficient to establish such harm. See, e.g., DeStories v. City of Phoenix, 154 Ariz. 604, 744 P.2d 705, 710 (Ct.App.1987) (defining standard for injury as "physical harm or medically identifiable effect"); Cathcart v. Keene Indus. Insulation, 324 Pa.Super. 123, 471 A.2d 493, 508 (1984) (same); Laxton v. Orkin Exterminating Co., 639 S.W.2d 431, 434 (Tenn.1982) (recognizing ingestion of frightening or noxious substance as sufficient physical injury). The language used in section 313 of the Restatement provides some guidance. Subsection (1) allows recovery for "illness or bodily harm." Restatement (Second) of Torts § 313(1) (1965) (emphasis added). The drafters' use of "or" rather than "and" shows an intention to allow a plaintiff to recover not only where bodily harm results from emotional trauma, but where "illness" results as well. "Illness" is "an unhealthy condition of body or mind." Webster's New Collegiate Dictionary 566 (1981). From this we conclude...