Towns v. Anderson

• Decision Date: 19 May 1977
• Docket Number: No. 76-698,76-698
• Citation: 567 P.2d 814,39 Colo.App. 332
• Parties: Timothy W. TOWNS, Tawnya E. Towns, by and through their mother and next friend, Nancy E. Towns, personally, and Mark F. Towns, Plaintiffs-Appellants, v. Delbert M. ANDERSON, d/b/a Anderson Plumbing & Heating Company, and Greeley Gas Company, a Colorado Corporation, Defendants-Appellees. . II
• Court: Colorado Court of Appeals

Page 814

567 P.2d 814

39 Colo.App. 332

Timothy W. TOWNS, Tawnya E. Towns, by and through their mother and next friend, Nancy E. Towns personally, and Mark F. Towns Plaintiffs-Appellants, v. Delbert M. ANDERSON, d/b/a Anderson Plumbing & Heating Company, and Greeley Gas Company, a Colorado Corporation, Defendants-Appellees.

No. 76-698.

Colorado Court of Appeals, Div. II.

May 19, 1977.

Rehearing Denied June 9, 1977.

Certiorari Granted Aug. 8, 1977.

David L. Kofoed, P.C., Roger T. Castle, Denver, for plaintiffs-appellants.

Yegge, Hall & Evans, Edward H. Widmann, Denver, for defendant-appellee Delbert M. Anderson d/b/a Anderson Plumbing & Heating Co.

Zarlengo, Mott & Zarlengo, Craig C. Eley, Denver, for defendant-appellee Greeley Gas Co.

ENOCH, Judge.

Plaintiff Timothy W. Towns appeals the dismissal of his negligence claim against defendants, Delbert M. Anderson and Greeley Gas Co. We affirm.

Plaintiff's claim arose from a gas explosion which occurred as a result of defendants' negligence. Plaintiff, who was eleven at the time, had been inside his house with his sister when he smelled gas, and decided to go outside. Plaintiff had just stepped from the front porch of the house when the gas exploded. Plaintiff saw and heard the explosion and ensuing fire which destroyed the house, and he also heard the screams of his sister who was still inside the house at the time and who did suffer some physical injury. Plaintiff received no direct physical injuries, such as cuts, bruises, broken limbs, or burns.

The trial court recognized that there was sufficient evidence to support a finding that plaintiff did suffer mental and psychological injuries which manifested themselves in physical problems, such as nightmares and nervousness, but dismissed plaintiff's claim on the grounds that in a negligence action recovery cannot be had for injuries arising from mental fright, unless such mental fright arises in connection with the infliction of physical injuries or physical impact. It is from this ruling that plaintiff appeals.

Plaintiff claims that this is an issue of first impression in Colorado. We disagree.

The case of Hall v. Jackson, 24 Colo.App. 225, 134 P. 151, early set out the law in Colorado on recovery for mental suffering which is not occasioned by a physical injury or impact. The court in Hall was specifically deciding the case where negligent breach of contract caused plaintiff severe mental anguish, but the case exhaustively examines the law on recovery for mental anguish other than that occasioned by physical injury, and concludes that:

It may be said with safety that at common law no action could be maintained to recover for mental suffering in the absence of bodily injury occasioning such suffering.

Hall recognized several exceptions to this rule, but concluded that either a physical injury must occasion the mental suffering or there must be wilfull, wanton, insulting, or malicious conduct by a defendant before damages for mental suffering can be recovered.

Numerous other Colorado cases have recognized that recovery for mental suffering alone may be had only when defendant's acts are intentional, wilfull, wanton, or malicious. See Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753; McCreery v. Miller's Groceteria Co., 99 Colo. 499, 64 P.2d 803; Fitzsimmons v. Olinger Mortuary Association, 91 Colo. 544, 17 P.2d 535; Sager v. Sisters of Mercy, 81 Colo. 498, 256 P. 8; Bleecker v. Colorado & Southern R.R., 50 Colo. 140, 114 P. 481. These cases include both actions in tort and actions for breach of contract.

However, where the conduct alleged or shown is only negligent, recovery for emotional distress generally has not been allowed, either in tort or for breach of contract. See Valley Development Co. v. Weeks, 147 Colo. 591, 364 P.2d 730; Blackwell v. Del Bosco, 35 Colo.App. 399, 536 P.2d 838; McNeill v. Allen, 35 Colo.App. 317, 534 P.2d 813; Hall v. Jackson, supra. But see Westesen v. Olathe State Bank, 78 Colo. 217, 240 P. 689.

In Valley Development Co. v. Weeks, supra, the court, after citing numerous situations where recovery for mental suffering was allowed, relied on Hall as grounds for denying recovery for emotional suffering caused by defendant's tortious negligent damage of plaintiff's real property.

In view of the conclusion of Hall v. Jackson, supra, that recovery cannot generally be had in the absence of physical impact, and in view of the fact that negligent infliction of severe emotional distress was not among the numerous exceptions to the general rule denying recovery which were stated in Valley Development Co. v. Weeks, supra, we must conclude that physical injury or impact is a necessary element under Colorado law for recovery of damages for mental suffering and anguish caused by a defendant's simple negligence, even when such suffering manifests itself in physical symptoms.

Judgment affirmed.

SILVERSTEIN, C. J., concurs.

RULAND, J., dissents.

RULAND, Judge, dissenting.

I respectfully dissent.

While I recognize that the "impact" requirement appears to have been adopted in this jurisdiction, see Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753 (1970), I do not believe it was intended to be an absolute prerequisite to recovery in all cases. See, e. g., Westesen v. Olathe State Bank, 78 Colo. 217, 240 P. 689 (1925).

Historically, the impact requirement for recovery of damages resulting from emotional distress was based upon two primary considerations. First, emotional injuries were deemed speculative and difficult to either prove or disprove; thus, the impact requirement was considered as a test of credibility for a claim of emotional distress. Secondly, it was believed that elimination of the impact...