Laxton v. Orkin Exterminating Co., Inc.

• Decision Date: 13 September 1982
• Citation: 639 S.W.2d 431
• Parties: Robert LAXTON, et ux., Teresa Laxton, Individually and as Next Friend of Both Laxton and Kimberly Laxton, Appellants, v. ORKIN EXTERMINATING COMPANY, INCORPORATED, Appellee.
• Court: Tennessee Supreme Court

Page 431

639 S.W.2d 431

Robert LAXTON, et ux., Teresa Laxton, Individually and as Next Friend of Both Laxton and Kimberly Laxton, Appellants, v. ORKIN EXTERMINATING COMPANY, INCORPORATED, Appellee.

Supreme Court of Tennessee,

at Nashville.

Sept. 13, 1982.

Tommy E. Doyle, Maurine A. Carroll, Townsend & Doyle, Linden, for appellants.

Edward C. Blank, II, N. Houston Parks, Columbia, for appellee.

OPINION

COOPER, Justice.

This is an action to recover damages for mental anguish, personal injury and property damages resulting from the alleged negligence of defendant in contaminating plaintiffs' water supply with the toxic chemical, chlordane. The trial court directed a verdict for plaintiffs on the issue of negligence, and submitted the issues of causation and damages to the jury. The jury resolved these issues in favor of the plaintiffs, and returned verdicts of $6,000.00 in favor of each plaintiff "for injury, mental pain and suffering (mental anguish)," and a verdict of $6,721.00 in favor of the plaintiffs jointly for property damage and for out-of-pocket expenses.

The Court of Appeals affirmed the judgment for property damages and out-of-pocket expenses, but reversed the judgment for mental anguish. In doing so, the court relied primarily upon Memphis St. Ry. Co. v. Bernstein, 137 Tenn. 637, 194 S.W. 902 (1917), which stands for the principle that there can be no recovery for shock or fright unless it manifests itself in physical injury or physical pain.

We granted the application for permission to appeal to review the action of the Court of Appeals in setting aside the judgment awarding plaintiffs damages for mental anguish.

The facts are not in material dispute. The record shows that plaintiffs live in the rural area of Perry county. At the time of the events that give rise to this action, the water supply to plaintiffs' house was a "spring" located some fifteen to twenty feet in front of their house and near the driveway.

On November 1, 1977, a representative of the defendant company inspected plaintiffs' house and recommended the house be treated for subterranean termites. Plaintiffs then entered into a contract with the defendant, paying $372.00 for the service.

On November 2nd or 3rd, defendant's serviceman sprayed the ground surrounding plaintiffs' house with the chemicals, chlordane and heptachlor. It was raining at the time and the odor from the chemicals was so strong that defendant's employee suggested to the plaintiffs that they spend the night away from home. They did so. When they returned the next day, they found their water had a foul smell and taste.

Plaintiffs contacted the environmentalist for the Perry County Health Department, who suggested plaintiffs call the defendant and also call the State Department of Water Control and inform them of the condition of the water supply.

Plaintiffs followed the advice of the environmentalist and were told by a representative of the defendant that any water contamination that might be due to the chemicals used in the termite treatment would be temporary, that the chemicals used would soon crystallize and would no longer be water soluble.

In response to plaintiffs' call to it, a representative of the State Department of Water Quality Control came to plaintiffs' home and took water samples from the "spring." The analysis of the samples showed the water to be contaminated by chlordane and heptachlor, the chemicals used by the defendant in treating plaintiffs' home for termites. Plaintiffs were notified of the contamination, but not the offending chemicals, and were told to cease using the water for any purpose.

The State Department of Water Quality Control continued to test the water from the "spring" weekly to determine its potability. Each test, in its turn, showed the chemical contamination to be less. The analysis of the water reported on December 9, 1977, showed the level of the contaminating chemicals to be within safe limits. The department so notified the plaintiffs and told them they could use the water from the "spring" with safety.

In the period when the tests were being conducted, plaintiffs did not use the water, except that Mrs. Laxton washed a few loads of clothes and Mr. Laxton took one or two showers and drank a glass of water.

In the months following the tests, plaintiffs used the water from the spring for normal household purposes. On several occasions, when it had been raining, Mrs. Larkin thought she could detect an odor from the water and that the water had a strange taste. The odor and taste proved to be of short duration and she thought little, if anything, of them.

Following an extremely heavy rain, on August 22, 1978, Mrs. Laxton noticed a strong and foul smell coming from the water and it had a distasteful taste. The State Water Quality Control Department was again notified and tests were done. The tests showed the level of chlordane in the water to be in excess of safe limits, and the Laxtons were advised not to use the water for any purpose and that it would be to their benefit to obtain a new water source.

It was at this time that the Laxtons learned that the contaminating chemical was chlordane and that it was a very toxic substance. It was at this time that the Laxtons became worried about their health and that of their children. Mrs. Laxton testified that she became very worried, since they had been using the water for about nine months--that everything she read about chlordane "just tore [her] to pieces." The record further shows that Mrs. Laxton would call her husband at work, and cry and express concern about the future health of her children. In fact, it would be safe to say from the evidence that the more Mrs. Laxton learned of chlordane and its properties, the more the Laxtons worried about their health and the health of their children and possible future health complications.

The mental anxiety of the Laxtons did not evidence itself in any physical way. Neither was it severe enough to require medical treatment.

In September, 1978, Mrs. Laxton noticed a general malaise in her children. The children appeared listless but were not apparently ill. The Laxtons took the children to the family physician, who, knowing the history of the water contamination and the properties of chlordane, took blood samples from the plaintiffs and the children for examination by pathologists. Test results dated September 22, 1978, showed no abnormalities, but indicated that the Laxtons had had a mild sub-acute reaction to a viral infection. In light of the test results and the fact that the Laxtons had changed to a new water source and were no longer being exposed to chlordane, Dr. Turner advised the Laxtons that there was no necessity for them to have more extensive blood tests made.

The courts of this state, and courts generally, have denied plaintiffs damages where the defendant's negligence causes mental disturbance, without accompanying physical injury or physical consequences, or without other independent basis for tort liability. See Medlin v. Allied Investment Co., 217 Tenn. 469, ...