Plaintiff brought this action against defendant, operator of a towing company, for trespass to her automobile. Defеndant moved for summary judgment, which the trial court granted. Plaintiff appeals. Her sole assignment of error is that the trial court еrred in granting the motion.
The complaint alleged:
"I.
"The defendant is an individual and operates a towing service under the assumed business name of Allen’s Towing Sеrvice * * *.
"II
"On the 6th day of May, 1975, plaintiff was the owner of the following described motor vehicle:
1966 Chevelle Malibou Station Wagon
Oregon License Tag No.: MELTON
Registered Owner: Jeanette L. Melton
which she parked in the 4800 block on S. E. Division Street, Portland, Oregon.
"in.
"On the 6th day of May, 1975, without the authority, knowledge, or consent of plaintiff, the defendant took pоssession of said motor vehicle and towed it away to her general damage in the sum of $500.00.
"IV.
"Immediately prior to the seizurе and towing of plaintiff’s motor vehicle, defendant had received a request from the Portland Police Department tо tow away a motor vehicle also parked in the 4800 block on S. E. Division Street, Portland, Oregon, described as follows:
1970 Hardtop Chevrolet, 4 Door Sedan
Oregon License Tag No.: EER-878
Registered Owner: Leonard W. and Wilma L. Beardsley
"V.
"In taking рossession of and towing away the motor vehicle of plaintiff, defendant acted with a wanton and reckless disregard оf the rights of plaintiff in these respects:
*734 "A. He failed and neglected to check the year and model of plaintiffs motоr vehicle against the vehicle he was requested to tow away by the Portland Police Department.
"B. He failed and neglected to check the license tag number of plaintiff’s motor vehicle against that of the motor vehicle that he had been requested to tow away.
"C. He failed and neglected to check the ownership of plaintiff’s motor vehicle against the ownership of the motor vehicle he had been requested to tow away.
"* * * * (and demanded punitive damages)
Defendant’s motion for summary judgmеnt is supported by plaintiff’s statements in her deposition taken by defendant which, in part, is as follows:
"Q Exactly what was the damage on the car?
"A At the time that it was towed?
"Q Yes.
"A To my knowledge, nothing, becаuse as I said, I never had it checked. I simply did not have time.
"Q Do you know if your car has been damaged in any way?
"A I have never had it checked. There wasn’t any particular reason to.
"Q The $500 damage that you are claiming does not relate to the damage to the car, is that correct?
"A That’s correct.
"Q The $500 damage alleged relates to what then?
"A To my suffering and humiliation and anxiety at the moment that it happened.
"Q Humiliation, anxiety, anything else?
"A Frustration, nervousness, with the strain that I was under at the time for оne of the few times in my life I was almost hysterical. I just didn’t need this type of a mistake.”
In support of her contention that the trial court erred in granting summary judgment for defendant, plaintiff argues that "in every trespass case, plaintiff is entitled to at least nominal damages” and "where a basis of liability exists, recovery may be had for mental suffering.”
*735 The defendant contends that "plaintiff’s сomplaint was not predicated upon the allowance of nominal damages” and "no recovery can bе had for trespass to chattels unless some actual damage is caused.” Defendant further relies on the general stаtement in Prosser, Law of Torts 328, § 54 (4th ed 1971):
"Where the defendant’s negligence causes only mental disturbance, without accomрanying physical injury or physical consequences, or any other independent basis for tort liability, there is still general agreement that in the ordinary case there can be no recovery. * * *”
As revealed by the trial court file, this case cаme before the trial judge on plaintiffs fourth complaint. It is apparent from the pleadings that plaintiff was not demanding nominal damages. It is also clear from the plaintiff’s deposition, relied on by defendant to support his motion for summary judgment, thаt plaintiff was not demanding $500 for damages to her automobile. Plaintiff stated that the damages prayed for were for her "suffering and humiliation and anxiety.”
This was the record before the trial judge at the time he entered summary judgment in favor of the defendаnt. Plaintiff filed no opposing affidavits to defendant’s motion.for summary judgment that would support her position now urged before this сourt. 1
In the recent case of
Gleason v. International Multifoods Corp.,
"Because of plaintiffs’ failure to either submit affidavits opposing the affidavits supporting defendant’s motion for summary judgment or to show why they were unable to do so, the trial court did not err in allowing defendants’ motion for summary judgment unless a *736 summary judgment would not have been appropriate’ within the meaining of ORS 18.105(4), even under the facts as stated in defendants’ affidavits.” (Emphasis added.)
Notwithstanding the above, plaintiff now contends that even under the facts as stated in plaintiff’s deposition, submitted in support of defendant’s motion for summary judgment, she is entitled to go to trial to recover "for mental suffering and anguish unaccompanied by physical injury or loss of рroperty.” 2
It is true that this court has departed from the rigid rule of no redress for damages for mental disturbance without acсompanying physical injury or physical consequences, as stated in
Adams v. Brosius,
The record before the trial court shows that none of these unusuаl or special circumstances were present, and the court did not err in granting defendant’s motion for summary judgment.
Affirmed.
Notes
ORS 18.105(4) provides:
"* * * When a mоtion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere аllegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue as to any material fact for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”
"Wediscern no essential difference between this negligence case invоlving summary judgment for a defendant and that in which a defendant is granted a judgment of involuntary nonsuit when plaintiff has rested upon trial. * * *” Uihlein v. Albertson’s, Inc.,282 Or 631 ,580 P2d 1014 (1978).
See Hinish v. Meier & Frank Co.,
For general discussion of "The Interest in Freedom From Emotional Distress,” see Restatement (Second) of Torts § 46, and the Illustrations and Comments thereto.