Davis v. Texaco, Inc.
Davis v. Texaco, Inc.
Opinion of the Court
This was an action against Texaco, Inc., and Tom Fornstrom to recover damages for personal injuries and intentional infliction of mental distress.
On June 15, 1977, the plaintiff, Linda Davis, stopped at the Texaco filling station in Omaha, Nebraska, operated by Fornstrom, because fluid was leaking from the engine compartment of her automobile. The attendant at the station raised the hood of the automobile and removed the radiator cap, which allowed the fluid to escape with great force from the radiator. Some of the fluid splashed onto the plaintiff, who was standing near the right front fender of the automobile, resulting in burns to her face, neck, and back.
The trial court did not submit the plaintiffs claim for damages resulting from intentional infliction of mental distress to the jury, but instructed the jury that the plaintiff might recover damages for mental distress proximately caused by the negligence of the defendants. The jury returned a verdict for the plaintiff in the amount of $500, and she has appealed. Her principal assignment of error is that the trial court erred in withdrawing her claim for mental distress from the jury.
The plaintiffs sister requested a towel or covering of some kind for the plaintiff from the station attendants. The plaintiff and her sister testified that they had to request something to cover the plaintiff two or three times before a station employee provided them with a fender cover. The evidence is in conflict as to whether the attendants knew the plaintiff had been burned. The plaintiff and her sister then attempted to use the restroom of the station and found it locked. The sister got the key from the station attendants, and the plaintiff remained in the restroom while her sister went back to the car to find the plaintiffs purse. When the sister returned to the restroom, the plaintiff suggested they go to a hospital, so the two women reentered her car. The plaintiff and her sister attempted to start the car several times without success.
A station attendant told them that the car would not start until the fender cover was returned. After the fender cover was exchanged for an old Texaco shirt, the attendant replaced the coil wire, which he had removed from the engine to prevent them from starting the engine. After the coil wire had been replaced, the engine started and the women proceeded to a hospital, where the plaintiff received emergency treatment.
Recovery for intentional infliction of mental distress will not lie unless the character of the defendant’s action is outrageous and the emotional distress inflicted upon the plaintiff is severe. In Paasch v. Brown, 193 Neb. 368, 370, 227 N.W.2d 402, 404 (1975), this court, citing Restatement (Second) of Torts § 46 (1965), stated:
Comment (d) to § 46 of the Restatement states in part at 73: “The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. ... There is no occasion for the law to intervene in every case where some one’s feelings are hurt.”
Meyer v. Nottger, 241 N.W.2d 911 (Iowa 1976), states that the conduct necessary to support such a claim “exceeds that which a reasonable person could be expected to endure.” Id. at 918.
Furthermore, the emotional distress suffered by the plaintiff must be severe. According to the Restatement, “The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered ip determining its severity.” Restatement, supra, Comment (j) at 77-78. See, also, Vicnire v. Ford Motor Credit Co., 401 A.2d 148 (Me. 1979). Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 695, 271 N.W.2d 368, 378 (1978), states that proof of an “extreme disabling emotional response” is required. Both extreme and outrageous conduct and extreme emotional distress must be proved to support the claim. Vicnire v. Ford Motor Credit Co., supra; Meyer v. Nottger, supra.
The plaintiff makes no claim for emotional distress on any day other than the day on which the incident occurred. She relies upon the perceived unresponsiveness of the station attendants to her requests for a cover
We are of the opinion that the conduct of the station attendants did not rise to the level of the extreme and outrageous conduct which is essential for conduct to be actionable for intentional infliction of emotional distress.
Although the plaintiff did suffer some embarrassment and humiliation as a result of the incident, there is no evidence of extreme mental distress in this case.
The plaintiff also contends that the instruction which allowed the plaintiff to recover damages for mental distress proximately caused by the negligence of the defendants was misleading and confusing. We have examined the instruction and have concluded that it was not erroneous when considered together with the other instructions to the jury.
The judgment of the District Court is therefore affirmed.
Affirmed.
Concurring Opinion
concurring.
I agree with the conclusion reached by the majority. The evidence indicates that the emotional distress inflicted upon the plaintiff in this unfortunate situation was not shown to be severe, and that absent such proof the plaintiff cannot recover.
The majority opinion is unclear as to whether or not it would find that there was sufficient evidence for a jury to find that the conduct was outrageous. I believe it was outrageous.
The evidence shows that a woman was burned by the negligent acts of a Texaco station employee. She was
Reference
- Full Case Name
- Linda Davis, Appellant, v. Texaco, Inc., Et Al., Appellees
- Cited By
- 27 cases
- Status
- Published