Emergent partner and real estate litigator Johnny J. Yeh closely follows developments in the California appellate courts. Below, he discusses a recent decision clarifying the availability of emotional distress damages in nuisance actions. To stay up to date with this and other Emergent news, contact us.
Most real estate litigators are well aware that, in addition to any diminution in value to real property that a nuisance may cause, a plaintiff can also recover damages for the discomfort and annoyance occasioned by a nuisance. More specifically, those damages reflect a recovery "that would reasonably compensate [the plaintiff] for the annoyance and discomfort caused by the injury to [the plaintiff's] peaceful enjoyment of the property that [the plaintiff] occupied."
While the availability of discomfort and annoyance damages are well-established in the law, there was until recently more ambiguity as to whether plaintiffs could recover emotional distress damages arising in connection with the nuisance. Certain cases maintained that emotional distress damages were simply not allowed. Other cases reached a similar conclusion, holding that emotional distress damages "as a personal injury, are not available in an action on a private nuisance." In contrast, other cases suggested that emotional distress damages are, in fact, available in a nuisance action.
In early 2017, the landscape for nuisance-related damages received significant clarification with the issuance of the decision in Hensley v. San Diego Gas & Electric Co. In Hensley, plaintiffs William and Linda Hensley sued the defendant after their property suffered severe fire damage, alleging, among other claims, causes of action for nuisance and trespass. In the course of the litigation, a dispute arose as to whether Mr. Hensley, who had not been physically present on the property at the time of the fire, could recover for his emotional distress as a component of his discomfort and annoyance damages. Such damages included harm arising from stress, worry, the aggravation of Mr. Hensley's suffering as a result of Crohn's disease, lost income, and medical expenses.
At the trial level, the defendant moved to exclude evidence of Mr. Hensley's emotional distress damages, and the trial court granted the motion, stating that such damages "fell within the rubric of 'general' emotional distress damages, which under [an earlier decision] could not be categorized as the 'distinct' and 'more minimal' annoyance and discomfort damages recoverable for nuisance and trespass." The parties later entered into a stipulated judgment providing that plaintiffs would take nothing from defendant and contemplating that plaintiffs would appeal the judgment.
On appeal, the Court of Appeals for the Fourth District confirmed that "once a cause of action for trespass or nuisance is established, a landowner may recover for annoyance and discomfort, including emotional distress or mental anguish, proximately caused by the trespass or nuisance." The Hensley court further held that the rule of law applies "even where the trespass or nuisance involves solely property damage." It also concluded that the amount of such damages were "'left to the sound judgment and discretion of the trier of facts without necessity of specific evidence as to such amount.'"
Hensley's decision is interesting for several reasons. First and foremost, it appears to settle conclusively whether emotional distress damages are recoverable in a nuisance action as a component of discomfort and annoyance damages. The holding opens the door for an additional set of damages for a plaintiff who has suffered more than the loss of enjoyment of his or her property. In addition, the decision also indicates that the plaintiff need not be present on the property at the time of the invasion, which further expands those instances in which a plaintiff can seek emotional distress damages for nuisance claims.
In a separate and somewhat more esoteric vein, the Hensley decision also expands the time frame in which plaintiffs can seek to recover emotional distress damages. More specifically, since the emotional distress damages are tied up in a cause of action relating to the injury to property and are not considered personal injuries, Hensley allows the recovery of emotional distress damages under the three-year statute of limitations that govern nuisance actions (so long as their has been an invasion of a protectable property right that forms the basis for the emotional distress damages), as opposed to the two-year statute of limitations that would govern a garden-variety intentional infliction of emotional distress claim.