Opinion
No. 38325
Decided January 27, 1967.
Negligence — Explosives — Mere fright or shock resulting to persons or animals — No liability, when — Physical injury resulting without impact — Liability — Pheasants injuring themselves by reaction to fright.
1. No liability exists for acts of negligence causing mere fright or shock, unaccompamed by direct contemporaneous physical impact and mjury, even though subsequent illness or harm results, where the negligent acts complained of are neither wilful nor malicious.
2. Where fright to persons or animals is caused by negligence in the use of high explosives and contemporaneous therewith, physical injuries result without impact to either persons or animals, recovery may be had for such physical injuries if such person or animals injure themselves in sudden reaction to such fright.
3. Recovery may be had for physical injuries to pheasants being raised for sale as a result of fright caused by the negligent use of high explosives on property adjacent to that on which the flock was kept, if such pheasants immediately injure themselves by sudden reaction to such fright.
Mr. Danny D. Johnson, for plaintiff.
Messrs. Smith, Renner, Hanhart Miller, for defendant.
The plaintiff in this action claims she is engaged in the business of raising pheasants for sale, doing business under the name of the Pleasant Valley Pheasant Farm.
In her amended petition she alleges that the defendant, Red Malcuit, Inc., was the contractor on the construction of Interstate 77 near the plaintiff's place of business in Tuscarawas County. That during the summer of 1965 through January 1966, the defendant, while engaged in the road construction of Interstate 77 and in close proximity to the land owned by the plaintiff, exploded large quantities of explosives producing earth tremors and loud shot-like noises which caused the pheasant birds which the plaintiff was raising to go crashing into their fences in which they were penned thereby causing injury and death.
She seeks to recover damages from the defendant for the death of 643 cock pheasants and 24 hen pheasants claiming that the death of said birds was the direct and proximate result of the defendant's blasting operations.
The defendant has filed a demurrer to the plaintiff's amended petition claiming that said petition does not state a cause of action.
It is apparent from the plaintiff's amended petition that this action is based on fright or shock unaccompanied by direct contemporaneous physical injury. No negligence is alleged against the defendant.
The law of Ohio is that although the use of high-power explosives in making excavations is a lawful method of accomplishing that purpose, nevertheless where it is done in such proximity to adjoining property that regardless of the care used the natural, necessary or probable result of the force of the explosion will be to break the surface of the ground, destroy the buildings and produce a concussion of the atmosphere, the force of which will invade the adjoining premises, injuring the buildings thereon, it renders the persons making use of such explosives liable for the damage proximately and naturally resulting therefrom, irrespective of the question of negligence or want of skill in the blasting operations. (23 Ohio Jurisprudence 2d, page 311, Section 24.)
This pronouncement of the courts of Ohio as to the use of high explosives where negligence is not involved is based on the theory that the results constitute a trespass on real estate. In the instant case no trespass is claimed in the petition either directly or by concussion of the atmosphere, and this pronouncement would not be applicable to the facts alleged in the petition.
The defendant challenges the plaintiff's right to recovery on the ground that injury occasioned by fright alone apart from physical injury, is not actionable. In support of this contention, the defendant has placed reliance on Miller v. Railroad, 78 Ohio St. 309, 85 N.E. 499, in which it is held that "no liability exists for acts of negligence causing mere fright or shock, unaccompanied by contemporaneous physical injury, even though subsequent illness results, where the negligent acts complained of are neither wilful nor malicious."
In Davis v. Railway, 135 Ohio St. 401, 21 N.E.2d 169, the Supreme Court of Ohio held that "in a personal injury action involving ordinary negligence no liability exists for fright and its consequences when such fright is unaccompanied by contemporaneous physical injury."
In respect to a claim for damages to a person who alleges that he suffered injuries as a direct and proximate result from the operation of mental or emotional stresses, most courts originally held that no damages could be recovered unless there was coincident in time and place with the alleged occurrence producing the mental or emotional stress some physical impact which was caused by the defendant's negligence.
Many courts in recent decisions have overruled and discredited the impact rule in fright and shock cases. One of the leading pronouncements in this regard may be found in Battalla v. State, 10 N.Y.2d 237, 219 N. Y. Supp. 2d 34. In that case the court held that there may be recovery for injuries, physical or mental, incurred by fright negligently induced. But Ohio has not specifically done so.
However in Lewis v. Woodland, 101 Ohio App. 442, 140 N.E.2d 322, recovery was allowed for a back injury alleged to have resulted when the plaintiff gave a startled jump after the defendant, as a practical joke, had dropped a lifelike rubber lizard in the plaintiff's lap. The court held that if the defendant's conduct was negligent in that it violated a duty designed to protect another from fright or other emotional disturbance which the defendant should recognize as involving an unreasonable risk of bodily harm, the fact that the harm resulted solely through the internal operation of fright or other emotional disturbance, does not protect the defendant from liability.
It should be noted that recovery was allowed in this case on the ground that the defendant's action constituted "negligence" and seems to be somewhat of a modification of the earlier Ohio impact rule. However the act of negligence complained of in this case was wilful and therefore is in accord with the pronouncement in Miller v. Railroad, supra.
It would appear that in Ohio today it is the law in ordinary cases of negligence that there can be no recovery for acts of negligence causing mere fright or shock unaccompanied by direct contemporaneous physical injury but in cases where fright is caused by the negligence of the defendant and contemporaneous therewith physical injury is sustained resulting from immediate sudden reaction to the fright, recovery may be had.
We know of no reason why the same rule should not apply to animals and human beings for injuries occasioned by fright.
In Madson v. East Jordan Irrigation Co., 101 Utah 552, 125 P.2d 794, noise of an explosion by blasting, caused the female mink to become frightened and they ate their young. Recovery was denied because there was no allegation or proof of negligence to establish causation between the explosion and final damage.
In Thompson v. Green Mountain Power Co., 120 Vt. 478, 144 A.2d 786, the court held that in an action to recover damage to poultry as a result of fright caused by defendant's explosion of dynamite on property adjacent to that on which the flock was kept, recovery could be had if the defendant was negligent in the use of such explosives. This action was permitted on the ground that the plaintiff had no notice or knowledge of impending explosions. There were several explosions within a few days to excavate for two pole settings and as a result of fright two hens out of a flock of 300 were smothered and the remainder lost weight and went into premature moult, and daily egg production declined from 250 to 50.
The court ruled that the defendant might be negligent if it failed to give adequate and timely warning to persons who might be within the range of the blasts so that they could take steps to protect their property. In this case most of the injuries were not immediate but in the instant action all damage is claimed to have occurred as an immediate reaction to blasting due to fright.
In the instant case the defendant is not charged with any negligence in the use of the explosives claimed. The demurrer must therefore be sustained.
Demurrer sustained.