Reversal of NIED claim in the absence of substantial evidence

Courts have historically required plaintiffs to satisfy the injury requirement of the tort of negligent infliction of emotional distress (NIED) in one of the two ways. Firstly, the impact requirement obligates plaintiff to show some sort of physical injury, however slight as an incident to their emotional distress. Most courts have abandoned this requirement though it is still followed in a few states. Second, the physical manifestation requirement, i.e., the modern alternative to the impact requirement which merely requires plaintiff to show that the claimed emotional distress has in some way manifested itself as an observable physical symptom.

As opposed to this, plaintiff failed to establish both these elements in Wilson v. Southern California Edison Co., B249714, 2015 Cal. App. LEXIS 119, wherein the gas company found stray voltage on Wilson’s gas meter the year after she moved into the house, and again two years later. Stray current is the unavoidable byproduct of grounding an electrical system.

Edison paid for certain measures taken by the gas company, which virtually eliminated the voltage on the meter. After Wilson remodeled her master bathroom (four years after she moved into the house), she began to feel low levels of electricity in her shower because the shower had metal pipes and the drain was connected to the ground, which allowed the stray electricity to flow when someone touched the shower while in contact with the drain. Edison offered to replace all or a portion of the metal pipes with plastic, which would eliminate the voltage in her shower, but Wilson, refused the offer and insisted that Edison eliminate all stray voltage on her property. She subsequently filed the instant lawsuit, and the trial court awarded her $1,050,000 in compensatory damages and $3 million in punitive damages based upon her allegation that Edison failed to properly supervise, secure, operate, maintain, or control the electrical substation next door to Wilson’s house allowing uncontrolled stray electrical currents to enter the home.

This judgment was however, overturned by the Court of Appeal of California, Second Appellate District, Division Four. In determining whether the seriousness of the harm Wilson suffered outweighed the public benefit of Edison’s conduct, the court considered the following factors:

a)    The extent of the harm, meaning how much the condition Edison caused (that is, stray voltage) interfered with Wilson’s use or enjoyment of her property, and how long that interference lasted.

b)    The character of the harm, that is, whether the harm involved a loss from the destruction or impairment of physical things she was using, or personal discomfort or annoyance.

c)    The value society placed on the type of use or enjoyment invaded; in this case the property was used as a residence. The greater the social value of the particular types of use or enjoyment of land that was invaded, the greater the gravity of harm from the invasion.

d)    The suitability of the type of use or enjoyment invaded to the character of the locality. The character of a locality was based upon the primary kind of activity at that location, such as residential, industrial, or other activity.

e)    The extent of the burden (such as expense and inconvenience) on Wilson to avoid the harm.

f)    The value society placed on the primary purpose of the conduct that caused the interference. The primary purpose of the    conduct meant Edison’s main objective for engaging in the conduct. How much social value a particular purpose had depended upon how much its achievement generally advanced or protected the public good.

g)    The suitability of the conduct that caused the interference to the character of the locality. The suitability of the conduct depended upon its compatibility to the primary activities carried on in the locality.

h)    The practicability or impracticality of preventing or avoiding the invasion.

The above findings produced no substantial evidence that an Edison managing agent authorized or ratified any alleged malicious, oppressive, or fraudulent conduct, and no physical injuries was sustained by Wilson which could further lead to survival of her claim.

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