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Salyer v. 396 Investment Co.5/17/2005
ional tort. (Smith, supra, 214 Cal.App.3d at p. 287.) The court rejected that proposition, and held that "`regardless of whether the occupant of land has sustained physical injury, he may recover damages for the discomfort and annoyance of himself and the members of his family and for mental suffering occasioned by fear for the safety of himself and his family when such discomfort or suffering has been proximately caused by a trespass or a nuisance. [Citations.]' [Citations.]" (Id. at pp. 287-288.)
Anaheim argues that Smith, supra, 214 Cal.App.3d 266 was wrongly decided. According to Anaheim, emotional distress damages for nuisance or trespass are available only in two types of cases - first, where the annoyance results from intentional conduct, and second, where the nature of the damage caused by the nuisance is discomfort and annoyance. Anaheim therefore distinguishes this case, where the nuisance itself (the reservoir seepage) did not cause discomfort and annoyance, but the nuisance was created by secondary effects (e.g., the slope failure), from situations where the nuisance, for example, was the dirt and noise caused by aircraft flying overhead.
This argument fails to hold up upon serious examination. Just because the only published cases address emotional distress damages for these two types of nuisance, which are probably the most common, it does not follow that emotional distress damages are precluded in other types of nuisance cases. Anaheim does not cite to any nuisance case where emotional distress damages were precluded. "Indeed, precedent in the law of nuisance and trespass establishes quite clearly that emotional distress without physical injury is compensable. [Citations.]" (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 986, fn.10.)
Moreover, the distinctions Anaheim argues are illogical. With respect to "intentional conduct" being a predicate for nuisance, Anaheim fails to distinguish between intent to cause a nuisance and intent to do the act that caused the nuisance. In Sturges v. Charles L. Harney, Inc. (1958) 165 Cal.App.2d 306 (Sturges), one of the cases Anaheim cites for this proposition, the conduct alleged was performing work on a slope adjacent to the plaintiffs' properties. The jury awarded compensatory and punitive damages, including an award for emotional distress, and the appellate court affirmed. (Id. at pp. 310-311, 326.) Similarly, in Acadia, California, Ltd. v. Herbert (1960) 54 Cal.2d 328, punitive damages were upheld after the defendant's actions interrupted an essential water supply. (Id. at pp. 337-338.)
Anaheim infers from the awards of punitive damages in these two cases that situations where punitive damages are appropriate create an exception to the general rule precluding emotional distress damages in nuisance cases. In Sturges, supra, 165 Cal.App.2d 306, however, the appellate court approved a jury instruction which stated: "In order to support an award of punitive or exemplary damages against the defendant, it is not incumbent upon any plaintiff to establish that the defendant acted with the actual intent of injuring such plaintiff." (Id. at p. 320.) Thus, Sturges does not stand for the proposition that only a nuisance created with the intent to harm the plaintiff supports an award for emotional distress damages; intent to do the act that caused the nuisance is sufficient.
Moreover, as indicated by the very availability of punitive damages, nuisance and trespass are torts. (See Acadia, California, Ltd. v. Herbert, supra, 54 Cal.2d at pp. 336-337.) As the court in Erlich, supra, 21 Cal.4th 543 pointed out, the measure of damages in a tort case is "`the amount which will compensate for all the detr
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