In this negligence action, defendant, High Pointe Oil Company, Inc., appeals as of right following a jury trial in which plaintiff, Beckie Price, was awarded $100,000 in noneconomic damages after defendant filled the basement of her home with nearly 400 gallons of fuel oil. The incident created an environmental hazard that required plaintiffs home to be razed from the site and left her displaced from a permanent home for almost two years. Defendant appeals the trial court’s orders denying its motion for summary disposition on the issue of noneconomic damages and it’s motion for judgment notwithstanding the verdict (JNOV) and remittitur. We affirm.
I. PACTS AND PROCEDURAL HISTORY
Plaintiff owned a home located in DeWitt, Michigan. She and her former husband helped to build the house, which was completed in 1975. The house was heated by an oil furnace, and the oil tank was kept in the basement. Beginning in 1995, the tank was serviced by Mooney Oil, which was later purchased by defendant. Plaintiff was on defendant’s “keep full” list. In 2006, plaintiff replaced her oil furnace with a propane furnace. She then sold the oil furnace and oil tank to a neighbor, who removed both from plaintiffs basement. Before switching to the propane furnace, plaintiff telephoned defendant and canceled its services. There were no fuel oil deliveries made to plaintiffs house between October 2006 and November 2007.
On November 17, 2007, while plaintiff was at work, defendant attempted to deliver fuel oil to her house because her name was inadvertently placed on defen
An environmental consulting company assessed the damage. Many of plaintiffs personal items located on the main floor of the home were able to be salvaged; however, most of the items in the basement were too heavily contaminated to be salvaged. Additionally, more porous items, such as mattresses and pillows, could not be salvaged because they had absorbed oil fumes. The items that could be salvaged were placed in storage, and the rest were put in a pole barn on plaintiffs property. Eventually, it was determined that the oil had leaked into the soil and that as a result of the contamination, the entire house had to be demolished. The Department of Environmental Quality notified plaintiff on April 18, 2008, that the excavation and cleanup of the soil had been completed and that no further action was required.
From November 17, 2007, to March 1, 2008, plaintiff stayed in the extra bedroom of her parents’ house, which was also being used to store a number of large antiques, although she often slept on the couch. Her parents were in Texas for all but one week of the time she lived there. From March 1, 2008, until late September 2009, plaintiff stayed in a duplex. Thereafter, she moved into a new house that she had helped to build.
Plaintiff filed suit in August 2008, alleging counts of negligence, gross negligence, negligent infliction of emotional distress, nuisance, trespass, and a private citizen’s claim under the Natural Resources and Environmental Protection Act, MCL 324.101 et seq. She requested general and compensatory damages for the economic harm caused by defendant’s conduct, as well as noneconomic damages for annoyance, inconvenience, pain, suffering, mental anguish, emotional distress, and psychological injuries caused by the destruction of her house.
Plaintiff moved for partial summary disposition under MCR 2.116(C)(9) and (10), requesting that the trial court grant summary disposition on her claims of negligence, negligent infliction of emotional distress, trespass, and nuisance. Plaintiff also argued that under the court rules she was entitled to seek noneconomic damages for emotional distress and mental anguish and exemplary damages. Defendant filed a countermotion for summary disposition under MCR 2.116(C)(8) and (10). In regard to plaintiffs request for noneconomic damages, defendant argued that noneconomic damages resulting from property damage are not compensable.
The trial court granted plaintiff summary disposition on her negligence claim and granted defendant summary disposition on plaintiffs claims of gross negligence and negligent infliction of emotional distress. The court denied both parties’ motions for summary disposition on the trespass, nuisance, and private citizen’s claims. With regard to noneconomic damages, the court stated:
[The Court]: Relating to the damages, in essence, by-dismissing the claim of negligent infliction of emotional*48 distress, I have deprived the Plaintiff of the opportunity to seek mental anguish damages secondary to property damage, and I think that’s the law ....
So, it seems to me that the request for economic losses adequate to put the Plaintiff in the position she would have occupied had the torts not been committed, is, of course, for the jury, and I’m satisfied that she can seek to recover non-economic damages as typically allowed in connection with the claim for negligence.
[Defense Counsel]: Just for clarification for me, you are allowing mental anguish damages for the negligence claim resulting to the property damage?
The Court: Yes, and that’s why I took out, in part, the claim for negligent infliction of emotional distress, because the idea of inflicting emotional distress is that the foreseeable outcome of the actor’s conduct would be to cause emotional distress, and I don’t think that a negligent defendant has to foreseeably see that as an outcome of their conduct if, in fact, it results naturally and probably from that conduct.
The parties agree that during the time plaintiff was displaced from her home, all of her economic losses, including the costs of demolition, excavation, and remediation expenses, were paid by her insurer, defendant, or defendant’s insurer. Plaintiff received $175,000 from her insurance company, which represented the fair market value of her house, approximately $10,000 for lost personal property, and $1,000 a month for rent while she lived in the duplex. Plaintiff testified at her deposition that she had not incurred any out-of-pocket costs associated with the incident.
In January 2010, the case proceeded to a jury trial on plaintiffs trespass, nuisance, and private citizen’s claims, as well as the issue of damages related to her
Plaintiff testified that she felt a great sense of loss over the destruction of her house, which held special memories for her; she was embarrassed to move into her parents’ house as an adult; she suffered from sleeplessness and an inability to concentrate because of the stress of the situation; and she took an antidepressant over the course of several months. At the close of proofs, the court instructed the jury, over defendant’s objection, that it could award plaintiff “non-economic damages, for things such as mental anguish and fright and shock, and denial of social pleasures and enjoyment in the use of the former home and embarrassment or humiliation” suffered as a result of the property damage negligently caused by defendant. The jury returned a verdict in favor of plaintiff in the amount of $100,000 for past damages and zero dollars for future damages. The court entered a judgment in plaintiffs favor. Thereafter, defendant filed a motion for a new trial, JNOX and remittitur, arguing that plaintiff had failed to present sufficient proofs to support the verdict. The court denied the motion.
Defendant now appeals as of right the trial court’s orders regarding plaintiffs recovery of noneconomic damages.
Whether a plaintiff is entitled to seek noneconomic damages for damage to or destruction of real property presents a question of law, which we review de novo. See 2000 Baum Family Trust v Babel,
Plaintiff moved for partial summary disposition under MCR 2.116(C)(9) and (10), and defendant moved for summary disposition under MCR 2.116(C)(8) and (10). The trial court did not specify which subrules it relied on in deciding the parties’ motions.
A grant or denial of summary disposition is reviewed de novo to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood,461 Mich 109 , 118;597 NW2d 817 (1999). A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. [Id.] at 119. The motion should be granted only when the claim is so legally deficient that recovery would be impossible even if all well-pleaded factual allegations were true and viewed in the light most favorable to the nonmoving party. Id. Likewise, a motion under MCR 2.116(C)(9) tests the legal sufficiency of a defense by the pleadings alone. Slater v Ann Arbor Pub Schools Bd of Ed,250 Mich App 419 , 425;648 NW2d 205 (2002). All well-pleaded factual allegations are accepted as true, and summary disposition is appropriate only “when the defendant’s pleadings are so clearly untenable that as a matter of law no factual development could possibly deny the plaintiffs right to recovery.” Id. at 425-426. A motion under MCR 2.116(0(10) tests the factual sufficiency of a claim. Maiden, [461 Mich] at 119-120. All admissible evidence submitted by the parties is reviewed in the light most favorable to the nonmoving party and summary disposition is appropriate only when the evidence fails to establish a genuine issue regarding any material fact. Id.; MCR 2.116(G)(6). [USA Cash #1, Inc v City of Saginaw,285 Mich App 262 , 265-266;776 NW2d 346 (2009).]
We review for an abuse of discretion a trial court’s decision regarding remittitur. Silberstein v Pro-Golf of America, Inc,
III. NONECONOMIC DAMAGES FOR THE DESTRUCTION OF REAL PROPERTY
Defendant argues on appeal that under current Michigan law, plaintiff is not entitled to seek noneconomic damages for mental anguish caused by the destruction of her home. Defendant first raised this argument in response to plaintiffs motion for summary disposition, and the argument presents an issue of first impression in this state. We agree with the trial court
As a general rule, noneconomic damages are recoverable in tort claims, and emotional damages include both emotional distress and mental anguish. See Phillips v Butterball Farms Co, Inc (After Second Remand),
The general rule, expressed in terms of damages, and long followed in this State, is that in a tort action, the tort-feasor is liable for all injuries resulting directly from his wrongful act, whether foreseeable or not, provided the damages are the legal and natural consequences of the wrongful act, and are such as, according to common experience and the usual course of events, might reasonably have been anticipated.
According to defendant, plaintiff is limited in her recovery to the difference between the market value of her house before and after the damage. Because plaintiff was paid the difference in market value, defendant argues that she has been fully compensated. Defendant relies on Strzelecki v Blaser’s Lakeside Indus of Rice Lake, Inc,
“It is the settled law of this state that the measure of damages to real property, if permanently irreparable, is the difference between its market value before and after the damage. However, if the injury is reparable, and the expense of repairs is less than the market value, the measure of damage is the cost of the repairs.” [Strzelecki,133 Mich App at 194 (citation omitted).]
Defendant further argues that recovery for emotional distress or mental anguish caused by damage to or the destruction of real property is not permitted under common law. In support of its argument, defendant cites Koester v VCA Animal Hosp,
There is no Michigan precedent that permits the recovery of damages for emotional injuries allegedly suffered as a consequence of property damage. Plaintiff requests that we allow such recovery when a pet is the property that is damaged, arguing that pets have evolved in our modern society to a status that is not consistent with their characterization as “chattel.” In essence, plaintiff requests that we create for pet owners an independent cause of action for loss of companionship when a pet is negligently injured by a veterinarian. Although this Court is sympathetic to plaintiffs position, we defer to the Legislature to create such a remedy [Id.]
In Bernhardt, the plaintiffs claims arose out of the loss of two pieces of jewelry that were of great sentimental value to her. Bernhardt,
Defendant acknowledges that both Koester and Bernhardt involved the loss or destruction of personal property, whereas, this case involves the destruction of real property. Nonetheless, defendant asserts that those holdings should be applied in this case. We disagree. As indicated, the general rule in Michigan is that noneconomic damages are recoverable in tort claims, Phillips,
Furthermore, contrary to defendant’s assertion, the law has historically distinguished between personal property and real property. For example, liability for trespass to land does not require any actual showing of damage. “ ‘Any intentional and unprivileged entry on land is a trespass without a showing of damage, since those who own land have an exclusive right to its use[.]’ ” Adkins v Thomas Solvent Co,
One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if,
(a) he dispossesses the other of the chattel, or
(b) the chattel is impaired as to its condition, quality, or value, or
(c) the possessor is deprived of the use of the chattel for a substantial time, or
(d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest. [1 Restatement Torts, 2d, § 218, p 420.]
Comment (e) to that section clarifies the distinction between real and personal property in tort law:
The interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land, is not given legal protection by an action for nominal damages for*56 harmless intermeddlings with the chattel. In order that an actor who interferes with another’s chattel may be liable, his conduct must affect some other and more important interest of the possessor. Therefore, one who intentionally intermeddles with another’s chattel is subject to liability only if his intermeddling is harmful to the possessor’s materially valuable interest in the physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest of the possessor is affected as stated in Clause (c). Sufficient legal protection of the possessor’s interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference. [Id. at 421-422.]
Similarly, our Supreme Court has held that breach of contract for the sale of real property necessarily includes the right to specific performance because land is presumed to have “a unique and peculiar value ....” In re Egbert R Smith Trust,
Authors and poets alike wax philosophical about the unique value of a home, which often provides as much, if not more, in the way of feelings of emotion and memories as it does shelter. A home’s unique and particular value has been acknowledged by our Supreme Court, and damage to or destruction of one’s
Defendant also argues that plaintiffs claim for non-economic damages is barred because she did not suffer fear of physical harm and was not present when the fuel oil was pumped into her house. Defendant relies on our Supreme Court’s holding in Daley v LaCroix,
We hold that where a definite and objective physical injury is produced as a result of emotional distress proximately caused by defendant’s negligent conduct, the plaintiff in a properly pleaded and proved action may recover in damages for such physical consequences to himself notwithstanding the absence of any physical impact upon plaintiff at the time of the mental shock.
Further, plaintiff has the burden of proof that the physical harm or illness is the natural result of the fright proximately caused by defendant’s conduct. In other words, men of ordinary experience and judgment must be able to conclude, after sufficient testimony has been given to enable them to form an intelligent opinion, that the physical harm complained of is a natural consequence of the alleged emotional disturbance which in turn is proximately caused by defendant’s conduct. [Id. at 12-14 (citations omitted).]
Contrary to defendant’s argument, the Daley Court’s holding does not require that a plaintiff suffer emotional distress as a result of fear of physical impact. Nor did the Court hold that a plaintiff must witness or contemporaneously experience the underlying wrong. Rather, all that is required under Daley is that a plaintiffs physical injury be a natural result of emotional distress proximately caused by the defendant’s negligence.
Defendant argues that even if plaintiff could recover noneconomic damages stemming from the destruction of her real property, she would be required, under Daley, to show that her mental anguish manifested itself physically. Defendant’s reasoning blurs the line
recovery for emotional distress differs from recovery for mental anguish, and various specific nonpecuniary, personal damages beyond the ambit of emotional distress are available to a plaintiff who can establish proof of such damages. Patek, McLain, Granzotto & Stockmeyer, 1 Michigan Law of Damages and Other Remedies (ICLE), § 2.15, p 2-15 and § 2.17, p 2-16. These include: physical pain and suffering; mental anguish; fright and shock; denial of social pleasure and enjoyment; embarrassment, humiliation, or mortification; or other appropriate damages. Id.-, see also SJI2d 50.02 and comment. [McClain,256 Mich App at 498-499 .]
Therefore, to the extent that plaintiff sought recovery for mental anguish, she was not required to show that it manifested itself physically.
IV PLAINTIFF’S EVIDENCE OF NONECONOMIC DAMAGES
Defendant next argues that even if it was permissible for plaintiff to seek mental anguish damages in this case, she failed to present sufficient evidence of her claim for damages; thus, the trial court erred by denying defendant’s motions for summary disposition and JNOV
Defendant asserts that it was entitled to summary disposition on the issue of noneconomic damages and JNOV because plaintiff “failed to sustain her burden of proving . . . that a definite and objective physical injury [was] produced as a result of emotional distress proximately caused by defendant’s negligent conduct.” As indicated, however, it is unnecessary to demonstrate a
In its denial of defendant’s motion for summary disposition on the issue of noneconomic damages, the trial court specifically stated that plaintiff was permitted to seek damages for mental anguish. The court also made the general statement that plaintiff could “seek to recover non-economic damages as typically allowed in connection with [a] claim for negligence.” Our review of a trial court’s decision on a motion for summary disposition is limited to the evidence that had been presented to the court at the time the motion was decided. Innovative Adult Foster Care, Inc v Ragin,
Additionally, we find that the trial court did not err by denying defendant’s motion for JNOV Viewing the evidence presented at trial in the light most favorable to plaintiff, there was sufficient evidence of noneconomic damages to present the issue to the jury. See Heaton v Benton Constr Co,
Q. Becky, when you witnessed this happening at the time, what were you feeling emotionally?
A. I think mostly it was the fact that it was gone, that there just wasn’t any coming back at this point, you know, to your house. The home I brought my kids to is gone; all of the hard work was for naught, and I really just didn’t know what I was going to do at that point.
Q. Were you still living at your parents’ home?
A. Yes; yes, I was.
Q, Did it become necessary for you to seek the help of your doctor?
A. I did; I did, yes.
Q. Tell us about that, please.
A. Fairly shortly after it happened, I--obviously, you are very upset and everything, but it was-it was just hard to sleep. I was having trouble focusing on, you know, at work and at home, and I knew I needed to focus as much as I could, because I knew I was going to have decisions to make and I was just having a hard time with all of it.
Q. Who did you see?
A I went to my doctor.
Q. Okay. And when you met with her, did you share with her the troubles you were having?
A I did, I did.
Q. And did she counsel you?
*64 A. Well, she — yes, she did. She recommended-and she recommended a medication that might help me kind of — an anti-depressant to help maybe get through the rough times.
Q. She put you on Paxil, did she not?
A. She did.
Q. And did you have refills for that, as well?
A. I did, I did. There was I think two; there was two initially, and then when I went back with her, maybe two months later, I had a regular physical, and we talked about it again, and I was given a couple of more refills.
Q. How did that work out?
A. Well, first of all, it’s rather embarrassing to be 50-some years old and have to move back in with Mom and Dad.
My parents are collectors of certain antiques, and it’s very crowded; it’s very crowded. The extra bedroom had— the extra bedroom I was using had like six china cabinets, a dresser, and I don’t know, a couple of sewing machines in it and it was just-it was too close; it wasn’t mine; it wasn’t my home. I had been on my own for 30-some years. It just wasn’t mine.
Q. The new house, if you will, is it the same as the old home you had?
A. No.
Q. Why not?
A. I guess it just doesn’t have the personality to it. It doesn’t have your kids’ memories to it. It doesn’t have the appreciation of what you go through and do. So much of it seems to have a different type of a quality, characteristics, value to it. It’s just more of a home when you do it all yourself. It just was home.
V DEFENDANT’S MOTION FOR REMITTITUR
Defendant finally argues that the trial court abused its discretion by denying its motion for remittitur. Again, we disagree.
Remittitur is provided for under MCR 2.611(E)(1), which states:
If the court finds that the only error in the trial is the inadequacy or excessiveness of the verdict, it may deny a motion for new trial on condition that within 14 days the nonmoving party consent in writing to the entry of judgment in an amount found by the court to be the lowest (if the verdict was inadequate) or highest (if the verdict was excessive) amount the evidence will support.
Defendant argues that the amount of noneconomic damages awarded plaintiff did not fall within the limits of what reasonable minds would deem just compensation for the mental anguish she suffered and, therefore, that the verdict must have been the product of sympathy. But defendant has not alleged that there was misconduct at trial, that the jury was improperly instructed, or that the jury allowed sympathy to sway its decision. The trial court instructed the jury that economic damages were not at issue and that in considering the issue of noneconomic damages, its decision must not be influenced by sympathy, bias, or prejudice. Juries
Defendant attempts to minimize the emotional damage suffered by plaintiff, stating that the only evidence she presented in support of her claim for noneconomic damages was her own “testimony, without elaboration, that she was ‘upset’ and ‘embarrassed’ as a result of the destruction of her home and that her family doctor prescribed an antidepressant for ‘possible’ depression that had apparently resolved a month later.” Contrary to defendant’s assertion, however, plaintiff described in detail how she suffered emotionally and mentally after losing her home. She lost the home that she had helped to build, where she made memories with her children, and where she intended to continue living indefinitely. As a result of that loss and the stress of relocating, she suffered embarrassment while living in her parents’ house, sleeplessness, and inability to focus, as well as fear, anxiety, and depressed moods, for which she took an antidepressant medication over the course of several months.
It is difficult to determine what amount of damages would justly compensate plaintiff for her suffering. In Paulitch v Detroit Edison Co,
The testimony indicated that defendants’ actions left plaintiff sad and depressed and that she is still dealing with her problems today. She is behind in paying her bills and suffers from a medical problem that she believes stems from her work situation. The evidence to support these results is found in the harassment and discrimination inflicted upon her for a lengthy period of time, despite her complaints to [a manager]. Under these circumstances, we do not believe the award was excessive, nor do we believe, giving deference to the trial court that personally observed the witnesses and heard the testimony, that the trial court abused its discretion in denying defendants’ motion for remittitur. [Id. at 436 (citations omitted).]
Admittedly, both Howard and Paulitch involved discrimination actions and are not completely analogous to this case, which is a negligence action involving property damage. Defendant points to a Louisiana Supreme Court case, Williams v City of Baton Rouge, 731 So 2d 240, 252 (La, 1999), in which the court “reviewed cases awarding damages for mental anguish when property has been damaged” and found that the awards ranged “from $35,000 to $100.” The highest amount of damages the court awarded to an individual plaintiff in that case was $35,000. Id. We note, however, that in Will
Although it may be difficult to determine what amount of noneconomic damages would justly compensate plaintiff, and an award of $100,000 may seem high in comparison to some other awards in cases involving property damage, “[t]he law does not provide any exact standard or yardstick for measuring damages of this type.” Howard v Burton,
Affirmed.
Notes
At trial, defendant moved for a directed verdict on plaintiffs private citizen’s claim. The trial court took the matter under advisement and later granted defendant’s motion.
Random, House Webster’s College Dictionary (2001) defines “chattel” as “a movable article of personal property” and “any tangible property other than land and buildings.” Merriam-Webster’s Collegiate Dictionary
See, as persuasive authority, Stevens v City of Flint, unpublished opinion per curiam of the Court of Appeals, issued December 20, 2007 (Docket No. 272329), and Bielat u South Macomb Disposal Auth, unpublished opinion per curiam of the Court of Appeals, issued November 9, 2004 (Docket No. 249147).
Defendant argues that it was entitled to summary disposition of plaintiffs claim for noneconomic damages under the alternative theories of trespass and nuisance. We need not address this argument, however, as plaintiff withdrew her trespass and nuisance claims before trial.
Defendant cursorily stated in its brief on appeal that the trial court also erred by denying its motion for a new trial. Because defendant failed to present any legal analysis in support of its statement, we decline to address the issue.