McMeakin v. Roofing & Sheet Metal Supply Co. of Tulsa

HANSEN, Judge,

concurring in part and dissenting in part:

I concur in that part of the majority opinion reversing and remanding the contract claim to the trial court, but do not join in affirming summary judgment as to Mr. McMeakin’s negligence claim. I would additionally reverse and remand the negligence claim for consideration by the jury.

As reflected in the majority opinion, the trial court granted summary judgment based upon the conclusion that Mr. McMea-kin could not recover, as a matter of law, for “mental disturbance” caused by distress at witnessing harm to his property, rather than another person, (emphasis is trial court’s) The majority determined the trial court’s rationale not to be decisive, but found foreseeability was absent, and affirmed summary judgment as to the negligence claim on that basis. I agree with neither the trial court’s finding, nor the majority’s.

Whether one can recover for personal injuries resulting from emotional distress/mental anguish, caused by witnessing harm to that person’s property, has not been directly decided in Oklahoma. Upon proper proof, recovery should be allowed.

Appellants contend a majority of states allow recovery to a person who suffers emotional distress due to destruction of his real property. While I do not find that contention to be well established, it is clear a number of states do allow recovery. I feel that position is more enlightened. Louisiana appears to be the leader of those recognizing such right, e.g. Elston v. Valley Electric Membership Corp., 381 So.2d 554 (La.App.1980) (damage to home from power surge caused by negligently placed transformer); Emond v. Tyler Bldg, and Constr. Co. 438 So.2d 681 (La.App.1983) (extensive damage to home resulted when foundation failed) and Bode v. Pan American World Airways, Inc., 786 F.2d 669 (5th Cir.1986) (homeowners witnessed plane crash and destruction of home in ensuing fire). Also recognizing a separate right of recovery for mental anguish are Edwards v. Talent Irrigation District, 280 Or. 307 , 570 P.2d 1169 (1977) (property damaged by water from irrigation system); French v. Ralph E. Moore, Inc., 203 Mont. 327 , 661 P.2d 844 (1983) (home made uninhabitable by leaking gasoline from negligently installed tanks) and Weld County Bd. of County Commissioners v. Slovek, 723 P.2d 1309 (Colo.1986) (damage to land by water overflowing from gravel pits). In the latter cited case, at p. 1318, the Colorado Supreme Court, while noting a requirement for reasonable and competent evidence, stated the better approach:

.. the goal remains the compensation of the injured landowner for any and all losses that result from the conduct for which the defendant is liable, including ... physical illness.

*292 Oklahoma has clearly broadened the circumstances under which one may recover for mental anguish. More specifically, in Ellington v. Coca Cola Bottling Co. of Tulsa, 717 P.2d 109 (Okla.1986), which was cited by all parties and the majority, the Supreme Court expressly recognized the right of recovery where mental anguish inflicts physical suffering, as well as where physical suffering causes mental anguish. In support of its holding in Ellington , the Supreme Court, at p. Ill, discussed Belt v. St. Louis-San Francisco Ry. Co., 195 F.2d 241 (10th Cir.1952), which found that a majority of courts compensated for bodily injuries produced by mental disturbances, without physical impact, and in such cases the right to recover is dependent upon the “nature of the results rather than the nature of the tortious conduct”.

The trial court’s finding that no jurisdiction would allow recovery where mental distress results from witnessing destruction of property is erroneous. Under the proper proof, recovery should be allowed.

I do concur with the majority that the keys to Mr. McMeakin’s recovery are proximate cause and foreseeability. That is, was his heart attack the proximate result of Appellees’ negligence, and was the heart attack a foreseeable consequence of Appel-lees’ conduct? Ordinarily, both proximate cause and foreseeability are questions of fact for the jury. Atherton v. Devine, 602 P.2d 634, 637 (Okla.1979). Only in rare circumstances should these questions be removed from consideration by a jury.

The majority apparently relies upon an exception to that rule where the events are so “unusual and extraordinary ... as to merit recognition as unforeseeable in law”. Minor v. Zidell Trust, 618 P.2d 392 (Okla. 1980). I do not find the facts in this case so exceptional as to justify that result.

The special status of a homeowner has long been recognized under the law, and distinguished from other forms of property ownership. There is expert medical evidence that Mr. McMeakin’s heart attack resulted from stress precipitated by witnessing destruction of his home, and further evidence that the consequential rebuilding process caused additional stress and strain. I will not hold, as a matter of law, that the facts here are so unusual and extraordinary as to make the result unforeseeable, nor can I say “only one reasonable conclusion can be drawn from the facts”. Atherton v. Devine, 602 P.2d at 637 .

Material facts are in controversy. The trial court’s grant of summary judgment on the negligence claim is error.