selected portland personal injury blog
Water Losses: Pain & Suffering Damages
Fri February 19, 2010, 4:12 pm
Most states do not allow pain and suffering damages for property losses. Oregon is an exception.
In Edwards v Talent Irrigation District, 280 Or. 307, 309, 570 P.2d 1169 (1977), defendant's negligent acts caused water from their irrigation ditch to flood the plaintiff's property. The court awarded the plaintiff damages for "mental anguish" as a result of the defendant's interference with the plaintiff's use and enjoyment of his property.
The Edwards court observed:
"The testimony in this case clearly reveals that the mental anguish for which plaintiffs recovered was the direct result of their concern for the damage to their property caused by defendant's negligence and their attempts to minimize that damage. They were anguished over the loss of the use of their laundry and bath facilities and the necessity of spending hours attempting to drain their land, and for other concerns
caused by the entry of the water." 280 Or. at 310.
The "Edwards rule" allowing mental anguish damages for interference with the use and enjoyment of land was applied in McGREGOR v. BARTON SAND & GRAVEL, INC., 62 Or. App. 24 (1983).
The McGregor Court stated:
"We understand Edwards to hold that an interference with use and enjoyment can be a kind of direct and natural result of an intrusion that will permit an award of emotional distress damages. Here, there was ample evidence that plaintiffs suffered emotional distress and that the distress was attributable to defendants' interference with plaintiffs' use and enjoyment of their property."
The McGREGOR Court added that that the theory of wrongdoing (negligence, intentional, recklessness) makes no difference in whether pain and suffering damages are available. The Court reasons:
"We conclude that the Edwards rule, allowing emotional distress damages for interference with the use and enjoyment of land, is as applicable in intentional trespass actions as in negligence or nuisance actions. No reason occurs to us why the same kind of injury resulting from the same kind of act should not be compensable solely because the actor's conduct is deliberate rather than negligent." McGREGOR at 32.
Still, even the Edwards Court recognizes that emotional distress damages are not available in all instances of property damages. The Edwards Court explained:
"Although we hold in this case that emotional distress damages may be recovered in an action for nuisance, we emphasize that our holding is limited to this particular species of case. The law involving recovery for emotional distress generally is confused and perhaps in need of rethinking by the courts. We have concluded, however, that this case does not provide a proper vehicle for reconsideration of the rules governing recovery for this type of injury." 80 Or at 310, n 4.
Nonetheless, the McGregor Court rejected defense attempts to use the above quoted footnote to limit the availability of pain and suffering damages stating:
"Defendants appear to understand that footnote as in some manner limiting emotional distress damages to nuisance actions. In our view, the purposes of the Edwards footnote were only to dispel any understanding that the case decided anything beyond the immediate issue presented and to suggest that the general subject of emotional distress damages might eventually receive more extensive attention." McGREGOR at 32.
If you have an Oregon property loss claim, call Richard Rizk at (503) 645-5677. He will help you evaluate whether you may also have a claim for pain and suffering. He can also be reached at firstname.lastname@example.org.
Richard Rizk, Personal Injury Attorney, Disability Attorney, Insurance Attorney.