Young v. Abalene Pest Control Services, Inc., 81-029

• Court: Supreme Court of New Hampshire
• Citation: 444 A.2d 514,122 N.H. 287
• Docket Number: No. 81-029,81-029
• Parties: Kevin D. YOUNG et al. v. ABALENE PEST CONTROL SERVICES, INC.
• Decision Date: 02 April 1982

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444 A.2d 514 122 N.H. 287 Kevin D. YOUNG et al.
v.
ABALENE PEST CONTROL SERVICES, INC. No. 81-029. Supreme Court of New Hampshire. April 2, 1982.

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[122 N.H. 288] Diversified Legal Services P. A., Concord (Mark Rufo, Concord, on the brief and orally), for plaintiffs.

Gallagher, Callahan & Gartrell P. A., Concord (Steven J. McAuliffe, Concord, on the brief and orally), for defendant.

PER CURIAM.

Before purchasing their home in Center Barnstead, New Hampshire, the plaintiffs hired Abalene Pest Control Services, Inc. (Abalene) to inspect the premises for insects. One of Abalene's employees inspected the house and issued a certificate stating that "there was no evidence of termite or other wood destroying infestations" in the property at the time of inspection. Relying on the defendant's certification, the Youngs bought the property. They moved into the house on June 15, 1978, and, three days later, observed evidence of insect infestation. One week later, the Barnstead building inspector confirmed that the house was infested with wood-destroying carpenter ants. He estimated that the "colony of ants had been nesting in ... [the] home for several months." He noted that "Abalene Pest Control Services, Inc. made [122 N.H. 289] an inspection on May 18, 1978, and gave a negative report even though there were ... piles of sawdust in several areas."

After the plaintiffs discovered that their home was infested with carpenter ants, Nancy Young became extremely nervous and depressed and sought medical treatment. Her doctor prescribed tranquilizers. On July 29, 1978, the plaintiffs vacated their home, and, later that day, Nancy Young attempted to commit suicide by taking an overdose of tranquilizers.

The Youngs brought a three-count negligence action against Abalene in Merrimack County Superior Court in September 1979. Their first count may be interpreted as alleging both negligence and breach of contract. This appeal relates only to the second and third counts. In count 2, the plaintiffs alleged that Abalene was liable for Nancy Young's "extreme mental suffering and acute mental distress." In count 3, the Youngs sought damages for Kevin Young's loss of consortium. The Superior Court (Dalianis, J.) granted Abalene's motion to dismiss the second and third counts. The Youngs filed an interlocutory appeal from that ruling. We affirm the trial court.

The plaintiffs' second and third counts, seeking recovery for mental distress and loss of consortium, were framed as negligence actions. Whether an action is "on a contract or in tort is not controlled by the form of the action but by its substance." Dunn & Sons, Inc. v. Paragon Homes of New Eng., Inc., 110 N.H. 215, 217, 265 A.2d 5, 7 (1970); see Guerin v. N. H. Catholic Charities, 120 N.H. 501, 505, 418 A.2d 224, 227 (1980). In this case, the duty allegedly violated arose from a contractual obligation. See Dunn & Sons, Inc. v. Paragon Homes of New Eng., Inc., 110 N.H. at 217, 265 A.2d at 8. The parties entered into a contract under which Abalene was to certify whether a house was free from insects. The defendant's performance was so grossly defective that it may have amounted to no performance at all. The "purpose of the contract duty is to secure the receipt of the thing bargained for ...." Dunn & Sons, Inc. v. Paragon Homes of New Eng., Inc., 110 N.H. at 217, 265 A.2d at 8. The plaintiffs did not receive the "thing" for which they bargained. For the reasons which follow, the plaintiffs' damages are limited to those that "the defendant had reason to foresee as a probable result of its breach when the contract was made." Lawton v. Great Southwest Fire Ins. Co., 118 N.H. 607, 611, 392 A.2d 576, 579 (1978) (quoting Emery v. Caledonia Sand & Gravel Co., 117 N.H. 441, 446, 374 A.2d 929, 932 (1977)); see Zareas v. Smith, 119 N.H. 534, 538, 404 A.2d 599, 601 (1979).

Kevin Young claims that the trial court erred in dismissing[122 N.H. 290] his loss of consortium claim. We disagree. Either spouse is entitled to recover damages for loss of consortium, whether the loss is caused intentionally or negligently. RSA 507:8-a. Nothing in the record, however, indicates that Abalene either intentionally or negligently injured

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Nancy Young so as to impair her husband's right of consortium. His loss of consortium count, therefore, was properly dismissed.

The plaintiffs next assert that the trial court committed error when it dismissed Nancy Young's count that sought damages for negligent infliction of emotional distress. In Lawton v. Great Southwest Fire Ins. Co., 118 N.H. at 615, 392 A.2d at 581, this Court held that damages for mental distress "are not generally recoverable in a contract action." Nancy Young, on the facts of this case, cannot recover damages for mental suffering and emotional distress, although the plaintiffs may recover consequential damages under count one if they succeed in proving breach of the contract. See id., 392 A.2d at 582. Zareas v. Smith, 119 N.H. 534, 538, 404 A.2d 599, 601 (1979).

In this case, we hold that Nancy Young's alleged injuries were not foreseeable as a matter of law.

Accordingly, we remand for trial on count one.

Affirmed and remanded.

BATCHELDER, J., did not sit; DOUGLAS, J., dissented.

DOUGLAS, Justice, dissenting:

Because the trial court granted Abalene's motion to dismiss, we must assume that all the facts pleaded by the plaintiffs are true, and construe all inferences from those facts favorably to the plaintiffs. Morgenroth & Assoc's, Inc. v. Town of Tilton, 121 N.H. 511, 516, 431 A.2d 770, 773 (1981). "If the facts as alleged would constitute a basis for legal relief, the motion to dismiss should be denied." Royer Foundry & Mach. Co. v. N.H. Grey Iron, Inc., 118 N.H. 649, 651, 392 A.2d 145, 146 (1978).

A defendant can be held liable for negligence only if he owes the plaintiff a duty to conform his conduct to a particular standard of care. Libbey v. Hampton Water Works Co., 118 N.H. 500, 502, 389 A.2d 434, 435 (1978); Cote v. Litawa, 96 N.H. 174, 176-77, 71 A.2d 792, 794-95 (1950); Chiuchiolo v. New England &c. Tailors, 84 N.H. 329, 336-38, 150 A. 540, 544 (1930); see Hurd v. Railroad, 100 N.H. 404, 408, 129 A.2d 196, 200 (1957).

A duty is owed only to those who are foreseeably endangered by negligent conduct. See F. Harper & F. James, The Law of [122 N.H. 291] Torts § 18.2, at 1018 (1956) [hereinafter cited as Harper & James]; Comment, Duty, Foreseeability, and the Negligent Infliction of Mental Distress, 33 Maine L.Rev. 303, 319 (1981). In negligent infliction of emotional distress cases, however, duty should involve more than foreseeability. A strict foreseeability approach forecloses inquiry into other important factors such as public policy, distribution of loss, the utility of the defendant's conduct, the cost to the defendant of doing business, and deterrence of future tortious conduct. Id. at 322.

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