Opinion
3:22-cv-00292-YY
11-23-2022
CURTIS BAILEY; MICHAEL BELL; STACI BRITTON; JAMES C. BROWN III; WENDEE CLEVERINGA; RICHARD DANIEL; STEPHANIE DANIEL; SUZANNE DICKSON; THOMAS HYDE; BRENNAN LANG; TAMARA LUKES; JENNIFER RUSSELL; J.R., by and through his Guardian Ad Litem, JENNIFER RUSSELL; K.R., by and through his Guardian Ad Litem, JENNIFER RUSSELL; L.R., by and through her Guardian Ad Litem, JENNIFER RUSSELL; TABITHA THURSTON; K.T., by and through her Guardian Ad Litem, TABITHA THURSTON; and Z.T., by and through his Guardian Ad Litem, TABITHA THURSTON, Plaintiffs, v. POLYGON NORTHWEST COMPANY, LLC; POLYGON NORTHWEST COMPANY; TAYLOR MORRISON NORTHWEST, LLC; and WILLIAM LYON HOMES, INC., Defendants.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU, UNITED STATES MAGISTRATE JUDGE
FINDINGS
Plaintiffs Curtis Bailey, Michael Bell, Staci Britton, James C. Brown III, Wendee Cleveringa, Richard Daniel, Stephanie Daniel, Suzanne Dickson, Thomas Hyde, Brennan Lang, Tamara Lukes, Jennifer Russell, J.R. (by and through his guardian ad litem, Jennifer Russell), K.R. (by and through his guardian ad litem, Jennifer Russell), L.R. (by and through her guardian ad litem, Jennifer Russell), Tabitha Thurston, K.T. (by and through her guardian ad litem, Tabitha Thurston), and Z.T. (by and through his guardian ad litem, Tabitha Thurston), bring this action against defendants Polygon Northwest Company, LLC, Polygon Northwest Company, Taylor Morrison Northwest, LLC, and William Lyon Homes, Inc. Plaintiffs allege three tortbased claims under Oregon law: negligence, nuisance, and negligent infliction of emotional distress. ECF 8. This court has jurisdiction pursuant to 28 U.S.C. § 1332 (diversity).
Defendants have filed a Motion to Dismiss and an alternative Motion for More Definite Statement. ECF 10. For the reasons discussed below, defendants' Motion to Dismiss should be GRANTED for all claims for emotional distress damages other than those by plaintiffs Bailey and Brown, GRANTED for all claims of negligent infliction of emotional distress other than those by plaintiffs Bailey and Brown, and GRANTED as to all of plaintiffs' private nuisance claims. All other parts of defendants' motion should be DENIED, including those involving emotional distress damages and claims for negligent infliction of emotional distress for plaintiffs Bailey and Brown, and economic damages for all remaining plaintiffs. Additionally, defendants' Motion for More Definite Statement should be DENIED.
While a motion for more definite statement is non-dispositive and therefore can be addressed in an opinion and order, because the issues are interrelated, these findings and recommendations address the motion for more definite statement as well as the motion to dismiss.
FINDINGS
I. Background Factual Allegations
In December 2018, defendants, all of whom are construction or property-related businesses, began constructing a four-story apartment building in Wilsonville, Oregon. Am. Compl. ¶¶ 1-2, ECF 8. The construction site was adjacent to a residential neighborhood in which all plaintiffs resided. Id. Plaintiffs allege that during construction, the unsecured site became a frequent source of vandalism and theft, with teenagers trespassing into the area after workers left for the day. Id. ¶ 4. Plaintiffs add that defendants were made aware of such incidents, including one that involved “the arrival of the fire department to the scene,” but allege defendants did nothing “to address the security issues raised by plaintiffs.” Id. ¶¶ 4-5.
At the hearing on the motion, plaintiffs' counsel represented that, while the fire department was previously called to the construction site, there is no indication of a prior fire at the location.
In February 2019, roughly three months after construction began, the site became the setting for “the largest fire in Wilsonville history.” Id. ¶ 3. As the fire, fueled by 200-foot flames, spread to nearby properties, neighbors “watched as their homes, belongings, priceless family heirlooms, memorabilia, and memories were engulfed in flames.” Id. Ultimately, twenty homes and at least fourteen vehicles were destroyed or damaged, and “dozens of community members” were displaced while awaiting repairs or rebuilding of their homes. While the cause of the fire has not been determined, “investigators concluded that the fire started at the construction site.” Id. Plaintiffs now bring this tort-based action against defendants seeking compensation for the physical injuries, property loss and related expenses, emotional distress, and/or property depreciation they experienced from the fire and its aftermath. Id. ¶¶ 10-25.
II. Legal Standard
To state a claim for relief, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). This standard “does not require ‘detailed factual allegations,'” but does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id.(quoting Twombly, 550 U.S. at 555).
A Rule 12(b)(6) motion tests whether there is a cognizable legal theory or sufficient facts to support a cognizable legal theory. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). To survive a Rule 12(b)(6) motion, “the complaint must allege ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). In evaluating a motion to dismiss, the court must accept all well-pleaded material facts alleged in the complaint as true and construe them in the light most favorable to the non-moving party. Wilson v.Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012).
III. Negligence
In their common law negligence claim, plaintiffs allege that defendants failed to: “take steps to address [] security issues,” “develop and implement an adequate fire protection program throughout all stages of construction,” adhere to regulations or best practices associated with construction site operations, and “restrict public access to the construction site.” Am. Compl. ¶¶ 5-7, ECF 8.
A. Legal Framework
Under common law, the elements of negligence required a plaintiff to prove that the “defendant owed the plaintiff a duty, that the defendant breached that duty, and that the breach was the cause-in-fact of some legally cognizable damage to the plaintiff.” Brennen v. City ofEugene, 285 Or. 401, 405 (1979). However, under Oregon's “contemporary jurisprudence, the traditional duty-breach analysis is subsumed in the concept of general foreseeability ‘unless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant's duty.'” Chapman v. Mayfield, 358 Or. 196, 205 (2015) (quoting Fazzolariv. Portland School Dist. No. 1J, 303 Or. 1, 17 (1987)) (footnote and citation omitted). Nonetheless, “causation-in-fact and the occurrence of legally cognizable harm (damage) remain as elements of any common-law negligence claim.” Id. (citing Oregon Steel Mills, Inc. v.Coopers & Lybrand, LLP, 336 Or. 329 (2004)).
B. Special Relationships and Duties Created By Regulations and Customs
Under Oregon law, the analysis of a negligence claim begins by evaluating whether “a status, relationship, or particular conduct that creates, defines or limits the defendant's duty” exists. Fazzolari, 303 Or. at 19. To be sure, the absence of a special duty, whether created through a statute (negligence per se) or a special relationship, is not fatal to a negligence claim. In the absence of such, the analysis proceeds to multiple elements, including general principles of foreseeability, causation-in-fact, and the presence of damages or legally cognizable harm. Chapman, 358 Or. at 205.
Plaintiffs concede that no special relationship exists between the parties. Opp. 7, ECF 12. However, they allege that defendants, while operating the construction site, failed to adhere to Occupational Safety and Health Administration (OSHA) fire protection regulations as well as “[b]est management practices promulgated by the Construction Fire Safety Coalition” (CFSC). Am. Compl. ¶¶ 6, 7(f)-(g), ECF 8. While the OSHA's fire protection regulations and CSFC's best management practices similarly offer guidance for the operation of a construction site, their significance to the negligence analysis differs greatly, as the former is a regulation, warranting a negligence per se analysis, while the latter is better described as a potential custom, which implicates principles of general foreseeability.
To state a claim of negligence per se under Oregon law, plaintiffs must demonstrate:
(1) [D]efendants violated a statute; (2) that plaintiff was injured as a result of that violation; (3) that plaintiff was a member of the class of persons meant to be
protected by the statute; and (4) that the injury plaintiff suffered is of a type that the statute was enacted to prevent.McAlpine v. Multnomah Cnty., 131 Or.App. 136, 144 (1994). Even assuming that plaintiff has properly alleged the first, second, and fourth elements, they cannot satisfy the third, as “Congress enacted the Occupational Safety and Health Act (OSHA) to reduce employment-related injuries and illness.” George v. Myers, 169 Or.App. 472, 480 (2000) (emphasis added). More specifically, “OSHA's [] construction standards . . . extends [the Construction Safety Act's protections for “employees on federal, federally-financed, or federally-assisted construction projects”] to employees in the private sector.” Id. at 480-81. Plaintiffs do not allege that they are construction employees, let alone ones that worked on defendants' construction site. See generally Am. Compl., ECF 8. Thus, they cannot use OSHA's fire protection regulations to sustain a negligence per se claim against defendants.
Plaintiffs also allege that defendants failed to follow the CSFC's best management practices, which “recommend construction site managers identify a perimeter to the property that is clearly marked and ensure public traffic/entrance to the site is prohibited or restricted.” Id. ¶ 6. Plaintiffs, however, provide scant information about the CSFC, leading this court to deduce that (1) the CSFC is not a governmental entity, and accordingly, (2) its best management practices are potential evidence of professional customs in the construction industry, and not laws that defendants were obligated to comply with. That distinction is significant:
The general rule, well established in [Oregon] as well as in most other jurisdictions, is that evidence of customary practice is admissible in most circumstances. We have stated that such evidence is admissible, not to establish a standard of care as a matter of law, but for consideration by the jury in determining whether the acts or omissions were negligent....[S]uch evidence is admissible because the standard of care is a community standard and the usual practice is an indication of what the community regards as proper practice.Robbins v. Steve Wilson Co., 255 Or. 4, 7 (1970) (emphasis added). Accordingly, the CSFC's best practice guidelines, if admissible, serve as evidence of industry custom, not a distinct standard of care against which defendants' conduct is assessed.
Before incorporating the CSFC's best management practices into the foreseeability analysis, this court must determine whether the practices are relevant to the claims alleged by plaintiffs. During oral argument, defendants suggested that the CSFC's recommendations were potentially aspirational and thus not necessarily reflective of well-established standards in the construction industry. While defendants' concern is understandable, especially considering that plaintiffs have offered a sparse explanation of the organization, this court must construe all well-pleaded material facts in the light most favorable to the non-moving party. Wilson, 668 F.3d at 1140. And here, plaintiffs have met the bare minimum: they described the CSFC's practices as “standard industry protocol with regard to fire prevention.” Am. Compl. ¶ 6, ECF 8. That said, as this case proceeds, it is incumbent on plaintiff to describe what exactly the CSFC is; doing so will help the court evaluate whether the organization's guidance is truly evidence of custom in the construction industry.
C. Foreseeability (Duty, Breach, and Proximate Cause)
In the absence of a special duty owed by defendants, plaintiffs' negligence claim is analyzed under general principles of foreseeability, causation-in-fact, and damages. First, a “plaintiff must establish that the defendant's conduct created a foreseeable and unreasonable risk of legally cognizable harm.” Sloan v. Providence Health System-Oregon, 364 Or. 635, 643 (2019). The concept of foreseeability is composed of two overlapping common-law negligence considerations: (1) “whether the defendant's conduct unreasonably created a foreseeable risk of harm to a protected interest of the plaintiff such that the defendant may be held liable for that conduct” (previously called “duty” and “breach”), and (2) “whether, because the risk of harm was reasonably foreseeable, the defendant may be held liable to the plaintiff for the particular harm that befell the plaintiff” (previously called “proximate cause”). Piazza v. Kellim, 360 Or. 58, 70 (2016). Importantly, “the concept of foreseeability embodies a prospective judgment about a course of events; it ‘therefore ordinarily depends on the facts of a concrete situation' and, if disputed, is a jury question.” Id. (quoting Fazzolari, 303 Or. at 4).
For the portion of their negligence claim that encompasses duty and breach, plaintiffs allege that defendants failed to act reasonably in response to a foreseeable risk of harm. Am. Compl. ¶ 8, ECF 8. Plaintiffs specifically charge defendants with failing to adopt measures that either would have restricted public access to the construction site after hours or limited the spread of fire once the blaze began. Id. ¶¶ 5-7. In response, defendants note that Oregon tort law does not impose liability for negligence in instances of general nonfeasance, nor does it generally confer upon a property owner a duty to secure premises. Mot. 12-13, ECF 10; Reply 6, ECF 14.
But the present dispute differs significantly from the hornbook tort principles upon which defendants base their arguments. Plaintiffs have not merely claimed that defendants owed a duty to secure their construction site by virtue of owning it. The allegations here are more nuanced: according to plaintiffs, defendants (1) were aware of previous incidents of after-hours trespassing onto the site, including an incident that involved a response from the fire department, and (2) failed to follow “standard industry protocol with regard to fire prevention.” Am. Compl. ¶ 6, ECF 8. Construing these facts in plaintiffs' favor, as well as acknowledging that the events concerning trespass occurred over a short three-month period, it is not beyond the realm of possibility for a factfinder to conclude that inaction from defendants while operating the construction site unreasonably created a foreseeable risk of harm to a protected interest- specifically, the homes, possessions, and livelihoods of neighbors who lived adjacent to that site.
The second foreseeability consideration, which considers whether defendants should be held liable for the “particular harm that befell” plaintiffs, is simpler. “The concept of foreseeability refers to generalized risks of the type of incidents and injuries that occurred rather than predictability of the actual sequence of events.” Fazzolari, 303 Or. at 21. Here, it is reasonably foreseeable that an unsecured construction site that allegedly (1) was, at the time of the fire, effectively a wooden tinder box, (2) had a history of trespass, including at least one incident that led to a response from the fire department, and (3) was noncompliant with standard fire prevention protocol, could lead to the ignition of an inferno that consumed dozens of neighboring properties. And while defendants claim it is not foreseeable that the absence of a security camera or entry sign would cause “the largest fire in Watsonville history,” see Mot. 13, ECF 10, “foresight does not demand the precise mechanical imagination of a Rube Goldberg nor a paranoid view of the universe.” Fazzolari, 303 Or. at 21-22. At this early pleading stage, plaintiffs have pleaded enough to demonstrate that an allegedly unsecured site, full of wood, with a history of trespass, could become a significant fire hazard to nearby properties. Put differently, “[i]t cannot be said that this setting . . . is so uncommon that a jury could not reasonably describe as foreseeable the risk of harm” that it posed to plaintiffs' properties. Stewart v. JeffersonPlywood Co., 255 Or. 603, 610 (1970).
D. But-For Causation
Plaintiffs “must also establish ‘causation' by proving that, but for the defendant's negligence, [they] would not have suffered harm.” Haas v. Est. of Carter, 316 Or.App. 75, 82 (2021), review allowed, 369 Or. 675 (2022). Causation “ordinarily refers to ‘causation-in-fact' or ‘but-for' causation.” Hammel v. McCulloch, 296 Or.App. 843, 851, rev. den., 365 Or. 502 (2019). The problem, as defendants have noted, is that investigators have not yet determined the cause of the fire. Mot. 11, ECF 10. That missing aspect prevents plaintiffs from pleading, with certainty, what caused the blaze, and relatedly, whether defendants' alleged negligence was a but-for cause of the inferno. But the court also recognizes that plaintiffs, without the benefit of discovery, are somewhat in the dark: they can theorize what happened based on their own experiences and third-party reporting, but cannot proffer a thorough explanation of what exactly happened with precise confidence.
Given these considerations, the court endeavors to examine what plaintiffs have alleged and determine whether plaintiffs plausibly allege that defendants' alleged negligence was a but-for cause of the fire. Plaintiffs claim that defendants failed to “take steps to address security issues,” and offer “fencing, gates, nighttime security protocol, [or a] surveillance system” as examples of potential steps that could “mitigate the foreseeable risk” of criminal activity. Am. Compl. ¶ 5, ECF 8. They also allege that defendants failed to follow “standard industry protocol with regard to fire prevention,” including the CFSC's recommendation that “construction site managers identify a perimeter to the property . . . and ensure public traffic/entrance to the site is prohibited or restricted.” Id. ¶ 6. When presented with these allegations, a reasonable juror could make out plaintiffs' primary theory of causation: that defendants failed to secure the construction site in the evenings, allowing someone to enter the perimeter and, either intentionally or accidentally, ignite a fire that was rapidly fueled by the unfinished, wood-cladded structure.
To be sure, plaintiffs also advance other theories, such as an argument that the lack of firefighting equipment on the construction site contributed to the blaze's spread. See Am. Compl. ¶ 7(f), ECF 8.
That theory is plausible, and crucially, has not been disproved by the information known so far. Defendants have confirmed that there was no electricity flowing at the construction site, effectively eliminating an electrical fire as a potential source of the blaze. Mot. 12, ECF 10. Neither party has alleged the occurrence of any natural occurrences that could have started the fire, such as excessively hot weather or a lightning strike. And during oral argument, defendants' counsel confirmed that while investigators have not determined the cause of the blaze, they have concluded that it began within the construction site. These critical facts suggest that the fire was ignited by someone while inside the construction site, lending significant credence to plaintiffs' theory that defendants' negligence in leaving the site unsecured after work hours were a but-for cause that allowed a trespasser to enter and somehow set the area ablaze.
Defendants claim that this particular theory of causation is problematic because Oregon courts consistently reject situations “where a plaintiff seeks to hold a defendant property liable on the sole allegation that a fire began on the defendant's property.” Mot. 12, ECF 10 (citing Metropolitan Prop. & Cas. v. Harper, 168 Or.App. 358 (2000)). To be sure, the court agrees with the Harper quotation that defendants proffered: “fires commonly occur where due care has been exercised as well as where due care was wanting.” Id. at 373. But crucially, the Harper court applied this principle to reject the plaintiff's suggested application of res ipsa loquitur, “a rule of circumstantial evidence that permits a jury to infer both negligence and causation if the harm that occurs is ‘of a kind that which more probably than not would not have occurred in the absence of negligence on the part of the defendant.'” Id. at 372-73. Plaintiffs here do not seek any application of res ipsa loquitur; they have instead alleged specific theories of negligence against defendants.
Moreover, another element of Harper-the case's procedural posture-seemingly bolsters the disposition of defendants' motion in plaintiffs' favor. The Harper trial court made its decisions regarding foreseeability and causation at the summary judgment and trial stages of the case, well after the parties had engaged in substantial amounts of discovery. See generally id. (mentioning the testimony of experts at trial, deposition excerpts and related affidavits, and the occurrence of inspections at the site). In contrast, the parties here are still at the pleading stage, with discovery temporarily stayed to resolve this motion. See Minutes, ECF 18. It may very well be that after the completion of discovery, there will be no additional information that confirms the source of the fire (thus muddling any theory of causation that plaintiffs may allege). But at this moment, plaintiffs have sufficiently demonstrated causation through a lens of “facial plausibility”-“when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663 (citing Twombly, 550 U.S. at 556).
E. Damages
Lastly, plaintiffs must demonstrate that they are entitled to damages for their negligence claims. It is here where a significant portion of plaintiffs' claims run into trouble, as all of them, with the exceptions of plaintiffs Bailey and Brown, seek recovery for emotional damages without alleging physical injury. Compare Am. Compl. ¶¶ 9-10, 12, 14-25 (plaintiffs alleging injuries that include “severe emotional and mental pain and distress,” “post-traumatic stress disorder,” “property loss and related expenses,” and “property depreciation”) with Am. Compl. ¶¶ 11, 13 (plaintiffs Bailey and Brown alleging injuries including hyperhidrosis, hypertension, mediastinum damage, pneumonia, and damage to their circulatory and respiratory systems).
This distinction is significant because Oregon courts adhere to the physical impact rule, which, with three exceptions (“Hammond exceptions”), requires a physical injury to support emotional distress damages. Paul v. Providence Health Sys.-Oregon, 351 Or. 587, 597 (2012) (citing Hammond v. Cent. Lane Commc'ns Ctr., 312 Or. 17, 22-23 (1991)) (noting that Oregon courts consistently reject “claims for emotional distress damages caused by a defendant's negligence, in the absence of any physical injury.”). Thus, while plaintiffs Bailey and Brown have alleged a physical injury, the others (“remaining plaintiffs”) must qualify for an exception to the physical impact rule to recover for their emotional distress damages. Paul, 351 Or. 587.
Plaintiffs acknowledge the physical impact rule, and allege that the remaining plaintiffs qualify for the third Hammond exception: “where the defendant's conduct infringed on some legally protected interest apart from causing the claimed distress, even when that conduct was only negligent.” Opp. 14-15, ECF 12; Hammond, 312 Or. at 23. Specifically, the remaining plaintiffs claim that they have a “legally protected interest in private nuisance, or a right to use and enjoy their land,” which defendants allegedly infringed upon via negligent actions or omissions that led to a destructive fire. Opp. 17, ECF 12.
The other Hammond exceptions require either an intent to inflict severe emotional distress or an intent to “do the painful act with knowledge that it will cause grave distress, when the defendant's position in relation to the plaintiff involves some responsibility aside from the tort itself.” 312 Or. at 23. Neither are applicable to plaintiff's negligence claim, as intentional conduct cannot support a negligence claim.
It is true that a private nuisance can serve as an independent basis of liability upon which “recovery of damages for mental distress absent physical injury is allowed.” Meyer v. 4-DInsulation Co., Inc., 60 Or.App. 70, 73 (1982); see also id. at 74 (listing “private nuisance” as a type of injury under which Oregon courts have allowed recovery for emotional damages). But the injury alleged by the remaining plaintiffs is not quite one in private nuisance. At face value, “a private nuisance is anything done to the hurt, annoyance, or detriment of the lands or hereditaments of another, and not amounting to a trespass.” State ex rel. Rudd v. Ringold, 102 Or. 401, 404-05 (1921) (emphasis added). A critical limitation of the tort is that the injury is not necessarily “to the land itself but to the personal comfort of dwellers on the land.” Amphitheaters, Inc. v. Portland Meadows, 184 Or. 336, 349 (1948) (emphasis added). And in a similar vein, a private nuisance under Oregon law is generally an issue that can be abated or otherwise enjoined. O.R.S. § 105.505 (allowing a plaintiff who prevails in a private nuisance action to “obtain an order allowing a warrant to issue to the sheriff to abate the nuisance”).
The injury alleged by the remaining plaintiffs shares little, if any, of these qualities. First, the alleged nuisance they suffered-the loss of their respective homes, and the associated interference with their enjoyment of said property-stems from one in trespass, where unwanted flames leapt from defendants' construction site onto plaintiffs' properties. Second, while there is no doubt that the remaining plaintiffs are deprived of the use and enjoyment of their properties, that fact stems from the destruction of the homes themselves. And third, even if the plaintiffs hypothetically prevailed on such a claim, the issuance of a warrant to abate any nuisance would be worthless, as there remains no action left to abate; the properties were destroyed from a onetime occurrence for which defendants are allegedly responsible.
That third point-that the source of the remaining plaintiffs' emotional distress is a single occurrence of property damage-segues nicely into the other issue: that damages for emotional distress are not recoverable in an action alleging only damage to property via negligence. In Meyer, a plaintiff sought damages for mental distress (with no physical injury) against a defendant whose “negligence in installing insulation in direct contact with the fluepipe of a woodstove” led to real property damage. 60 Or.App. at 72. The trial court dismissed the action; on appeal, the plaintiff argued that “damages for mental distress are recoverable for negligent damage to any property as long as (1) there is an independent basis of liability and (2) the damages are the ‘common and predictable' result of the type of conduct involved.” id. at 73.
The Court of Appeals disagreed, writing:
It is difficult to imagine a circumstance in which damage to any property does not directly, naturally and predictably result in some emotional upset. Unless some other line is drawn, as we believe there must be as a policy matter, neither the quality of a defendant's conduct nor the predictability of distress as a result of property damage alone or together form a basis for an award of compensatory damages for emotional distress. Rather, it is the kind of interest invaded that, as a policy matter, is believed to be of sufficient importance to merit protection from emotional impact, that is critical.
...
The broad implications of the rule urged by plaintiff are that damages for mental distress become possible whenever property is damaged, whether intentionally or negligently. It is entirely common and predictable, for example, that a person will be disturbed and upset when someone negligently breaks the headlight of his or her cherished automobile or causes a softball to crash through a picture window. We do not yet live, however, in an “eggshell society” in which every harm to property interests gives rise to a right of action for mental distress. As Justice Peterson said in his dissent in Mooney, “A certain amount of emotional distress and anxiety is an unavoidable part of living in our complex society.” Some emotional upset is still left uncompensated.Id. at 74-75, 79 (emphasis in original, citation omitted). The similarity between the facts in Meyer and those alleged by plaintiffs-negligent conduct that led to a fire, property damage, and emotional damages sought despite the absence of physical injury-militates a similar result: a dismissal of claims that seek mental distress without physical injury. id. at 80 (“We conclude that the trial court did not err in striking the allegations of mental distress.”).
Plaintiffs' citations to Macca v. Gen. Telephone Co. of N.W., 262 Or. 414 (1972), and Edwards v. Talent Irrigation District, 280 Or. 307, 309 (1977), are unavailing. The plaintiffs in Edwards sought economic and emotional distress damages resulting from the entry of water onto their property from the defendant's irrigation ditch. In upholding recovery for the plaintiff, the
Edwards court wrote:
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.Id. at 310 (emphasis added). The situation in Edwards is readily distinguishable from the instant case in a critical way: it was the emotional toll, created by pervasive, repeated, or continuously negligent actions, that allowed the plaintiff to obtain emotional distress damages. Here, while the anguish that the remaining plaintiffs feel over the loss of their homes is certainly significant, it does not stem from multiple, consistent actions that when accumulated together disrupt their enjoyment of the property.
Similarly, in Macca, a plaintiff was subjected to repeated phone calls because a telephone company incorrectly labeled her number as the after-hours number for a flower shop. 262 Or. at 415-16. The Oregon Supreme Court affirmed a judgment that awarded emotional damages to the plaintiff despite the absence of a physical injury. In doing so, it wrote:
We conclude that the erroneous listing of plaintiffs telephone number and the numerous telephone calls to plaintiff resulted in an invasion of plaintiffs right to enjoy her property without unreasonable interference. As such it is governed by the law relating to a private nuisance, and plaintiff is entitled to recover for mental distress resulting from defendant's negligent act.Id. at 418. Importantly, the alleged nuisance inMacca shares the three qualities of private nuisance identified above: it led to the “hurt, annoyance, or detriment of the lands . . . of another,” but did not amount to a trespass; it was not an injury “to the land itself but to the personal comfort of dwellers on the land,” and it had the potential for abatement if the pervasive calls continued. Ringold, 102 Or. at 404-05; Amphitheaters, Inc., 184 Or. at 349 (emphasis added). And the Meyer court's analysis under a similar set of facts is particularly insightful here: “Macca thus turned on the fact that the invasion was an ongoing interference with the use and enjoyment of the plaintiffs' residence. In contrast, plaintiff here alleges no such ongoing interference, but merely property damage to a house.” 60 Or.App. at 75-76 (emphasis added). And given the near-identical circumstances between the Macca plaintiff and the plaintiffs here, a similar result is warranted: dismissal of plaintiffs' claims for emotional distress damages that lack physical injury.
To be clear, this does not mean that all of the remaining plaintiffs' negligence claims must be dismissed: they may still recover for economic damages, as they have pled sufficient injury to their respective properties. See, e.g., Hale v. Groce, 304 Or. 281, 284 (1987) (“One ordinarily is not liable for negligently causing a stranger's purely economic loss without injuring his person or property.”) And the negligence claims of plaintiffs Brown and Bailey survive in full, as they are eligible to recover not only for damages associated with physical injury, but also emotional distress damages and economic losses. But plaintiffs' claims that they are entitled to emotional distress damages absent physical injury must be dismissed because they do not qualify for a Hammond exception.
IV. Private Nuisance
Plaintiffs also allege a private nuisance claim against defendants. The thrust of their argument is:
Defendant[s] “created a substantial interference to [their] use and enjoyment of the property by failing to secure their active construction site . . . which in turn resulted in the fire starting and spreading to such extent that it caused severe harm to plaintiffs. ...
Defendant[s'] activity as set forth above [] caused the interference with Plaintiffs use and enjoyment of land.Am. Compl. ¶¶ 61, 65, ECF 8.
“A private nuisance is an unreasonable non-trespassory interference with another's private use and enjoyment of land.” Mark v. State Dep't of Fish & Wildlife, 158 Or.App. 355, 360 (1999). But as discussed above, plaintiffs' injury is not exactly one in private nuisance, as nuisances generally do not involve trespass, are capable of abatement or enjoinment, and complain of an injury to the personal comfort of dwellers on the land, not an injury to the land itself. See ante at 14. Thus, plaintiffs have failed to allege a plausible claim for private nuisance.
As a hypothetical, there could be a cognizable claim for private nuisance if plaintiffs had asserted that the unsecured and open nature of the construction site allowed individuals to pervasively trespass the site and disrupt the livelihoods of neighbors; such actions would be non-trespassory, capable of abatement, and primarily feature injury to the comfort of plaintiffs, not necessarily injury to their property.
V. Negligent Infliction of Emotional Distress
Lastly, plaintiffs allege that defendants' actions and omissions constituted negligent infliction of emotional distress (NIED). Plaintiffs specifically argue that defendants inflicted emotional distress by forcing them “from their homes, which were adjacent to the [construction site], to witness and feel the severity of the explosion and the heat of the fire that destroyed their property and caused them severe emotional distress.” Am. Compl. ¶ 68, ECF 8.
At the outset, defendants concede for purposes of their motion that if plaintiffs Brown and Bell “had sufficiently alleged facts to support foreseeability and causation of [their] injuries, these allege injuries would be sufficient to survive dismissal” of the NIED claims. Mot. 17, ECF 10. As discussed above, plaintiffs have met their burden of pleading facts sufficient to establish foreseeability and causation, and thus, plaintiffs Brown and Bell's NIED claims survive. However, the remaining plaintiffs' NIED claims fail for the same reason that emotional distress damages are unavailable for a negligence claim absent physical injury. Hammond, 312 Or. 17, 22 (1991). And as discussed above, the remaining plaintiffs do not qualify for the third Hammond exception because their overall injuries do not qualify as a private nuisance. See ante at 14.
In addition to the three Hammond exceptions, Oregon courts have also recognized a limited “bystander rule” exception that allows parties to potentially recover for NIED despite not suffering physical injury. The bystander rule has four elements: (1) “the bystander must witness a sudden, serious physical injury to a third person negligent caused by the defendant,” (2) “the plaintiff must have suffered serious emotional distress,” (3) “the plaintiff must have perceived the events that caused injury to the third person as they occurred,” and (4) “the physically injured person [must] be a close family member of the plaintiff.” Philibert v. Kluser, 360 Or. 698, 71516 (2016). Even if the remaining plaintiffs have sufficient pled the first two elements, however, they have not demonstrated either the third or the fourth. Specifically, the thrust of plaintiffs' NIED claim is that they “witness[ed] and fe[lt] the severity of the explosion and the heat of the fire that destroyed their property”; there are no allegations that any of them witnessed injuries inflicted on plaintiffs Brown, Bell, or anyone else. Am. Compl. ¶ 68, ECF 8 (emphasis added). Moreover, the remaining plaintiffs do not assert that they are relatives of plaintiffs Brown, Bell, or anyone else whose injury they may have witnessed-and “witnessing the injury of a stranger or acquaintance, while likely distressing, is not sufficient to recover” under a theory of NIED. Philibert, 360 Or. at 714. Thus, the remaining plaintiffs' NIED claims must be dismissed.
VI. Motion for More Definite Statement
Defendants ask that if any part of their Motion to Dismiss is denied, plaintiff should be ordered, pursuant to Rule 12(e), to provide a more definite statement “on any remaining Claims regarding the alleged causation and damages.” Mot. 1, ECF 10. They specifically request that plaintiffs provide facts regarding (1) how their respective properties were damaged or experienced diminution in value, and (2) their “alleged theory of recovery of noneconomic damages.” id. at 28-29.
“A Rule 12(e) motion for more definite statement is disfavored and is proper only if the complaint is so indefinite that the defendant cannot ascertain the nature of the claim being asserted, meaning the complaint is so vague that the defendant cannot begin to frame a response.” Martin v. City of Portland, No. 3:19-CV-1647-SI, 2020 WL 363391, at *2 (D. Or. Jan. 21, 2020) (citation omitted). “Rule 12(e) is designed to strike at unintelligibility, rather than want of detail.” Id. (citation omitted). Moreover, “when the detail sought is available through discovery, the motion should be denied.” Id. Because the detail that defendants seek can be ascertained through discovery, ordering plaintiffs to provide a more definite statement is unwarranted.
RECOMMENDATIONS
Defendants' Motion to Dismiss (ECF 10) should be GRANTED for all claims for emotional distress damages other than those asserted by plaintiffs Bailey and Brown, GRANTED for all claims of negligent infliction of emotional distress other than those asserted by plaintiffs Bailey and Brown, and GRANTED as to all plaintiffs' private nuisance claims. All other parts of defendants' Motion should be DENIED, including those involving the emotional distress damages and claims for negligent infliction of emotional distress for plaintiffs Bailey and Brown, and economic damages for all remaining plaintiffs. Defendants' Motion for More Definite Statement should also be DENIED.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Tuesday, September 06, 2022. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.