Daily Development for Friday, June 15, 2001

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

NUISANCE; DAMAGES; LOST RENTAL VALUE: When an adjacent property owner altered the grade of its property so that large amounts of water drained onto the neighboring homeowner's property, damages recoverable include not only actual damages and emotional distress, but the diminution of the rental value of the home, although the home was occupied at all times by the damaged owner.

Pryor v. Willoughby, 36 S.W.3d 829 (Tenn. App. 2000).

Appellants' home was located adjacent to a lot purchased by appellees, who then constructed a new home on the lot. In the course of construction, the lot was regraded, causing substantial quantities of water to flow onto appellant's lot, essentially ruining their septic system and causing sewage to routinely back up into the home, leading to numerous difficulties for appellants.

After appellees refused to take any action to address this situation, other than making a claim against their homeowner's policy, this case was brought. Appellants successfully pled that appellees' actions constituted an actionable nuisance and trespass against the homeowners' adjacent property. The trial court awarded actual damages and a sum for appellant's emotional distress. Appellants then sought to modify their award to include lost rental value for the diminution in the value of their property as a rental unit.

The Court of Appeals noted that the case was one of first impression in Tennessee. It held for appellants and permitted diminution in rental value during the period of the nuisance. The court noted that a party that has been subjected to a nuisance may be entitled to several types of damages. These damages may include the cost of restoring the plaintiff's property to its condition prior to the creation of the nuisance, person damages such as inconvenience and emotional distress, and injury to the use and enjoyment of her property. Such damages are not mutually exclusive.

The fact that appellants lived in the property at all times did not disqualify them from such rental value damages; instead the lost rental value claim was upheld as a measure of their loss of use and enjoyment of the property during the period of the temporary nuisance. The Court of Appeals found that the sewage problems in effect reduced the rental value of the home to a de minimus amount, and awarded appellants full monthly rental value of their home for the duration of their difficulties.

Comment: While it may be true that some of the emotional distress damages resulted from the trials and tribulations of dealing with the problem, it would seem that a significant part of those damages would result from the fact that the plaintiffs were living in a home that was less habitable then it should have been due to the sewage problem. Isn't there some overlap between the emotional distress damages resulting from this problem and the rental value measure of damages?

As the court awarded 100% of the rental value, we should hypothesize that these damages are the equivalent of giving the plaintiff her home in perfect condition. Shouldn't we, therefore, measure the emotional distress component of the damages on the assumption that the sewage problem was not affecting the plaintiff's home, but some other property owned by the plaintiff? Plaintiff may have endured emotional distress because the problem just did not go away, but this would likely be only a small component of the emotional distress endured by plaintiff.

The court says very little about the overlap between the rental value and the emotional distress damages. It simply cites cases in California and Iowa as precedent supporting its conclusion that rental value can be obtained in nuisance cases.

In the Iowa case, although some dicta in the case may suggest that rental value and "inconvenience" damages can both be collected, in fact the plaintiff did not request rental value damages at all, and in any event the court reduced the verdict as excessive. The California case, almost 50 years old, does indicate that rental value as well as damages for inconvenience and emotional distress can be recovered, but in that case the diminution in rental value was only partial. Further, the case is focused entirely upon whether rental value damages are available at all, and does not discuss whether might be an overlap between the two measures of damage.

In sum, the authority also does not discuss the question of overlap. Shouldn't someone address this issue?

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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