TAYLOR v. DELAWARE COUNTY SOLID WASTE TRUST

TAYLOR v. DELAWARE COUNTY SOLID WASTE TRUST
2021 OK CIV APP 48
Case Number: 118354
Decided: 03/22/2021
Mandate Issued: 12/01/2021
DIVISION I
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION I

SAM TAYLOR, Plaintiff/Appellee,
v.
DELAWARE COUNTY SOLID WASTE TRUST AUTHORITY, a public trust organized under the laws of the State of Oklahoma, Defendant/Appellant.

APPEAL FROM THE DISTRICT COURT OF
DELAWARE COUNTY, OKLAHOMA

HONORABLE DAVE CRUTCHFIELD, JUDGE

REVERSED IN PART AND REMANDED

Bryce Harp, HARP LAW GROUP, PLLC, Grove, Oklahoma, and
Darren R. Cook, DARREN R. COOK, P.C., Grove, Oklahoma, for Plaintiff/Appellee,

Thomas A. LeBlanc, Jessica L. Foutch, Matthew B. Free, BEST & SHARP, Tulsa, Oklahoma, for Defendant/Appellant.

Bay Mitchell, Judge:

¶1 Defendant/Appellant Delaware County Solid Waste Trust Authority (SWTA) seeks review of the trial court's journal entry of judgment, entered upon jury verdicts awarding Plaintiff/Appellee Sam Taylor $25,000 for negligent injury to property and $100,000 for nuisance. Because Taylor did not present a prima facie case for nuisance recovery, we find the trial court should have granted SWTA's motions for directed verdict. We reverse that portion of the judgment and remand.

¶2 Taylor sued SWTA after one of SWTA's trash disposal trucks got entangled with a power line on Taylor's property as it approached his dumpster for a pickup. Taylor sought recovery for his property damage under the Governmental Tort Claims Act, contending the truck driver negligently raised the lift arm too early and/or drove the truck with the arm raised. Taylor also claimed the incident constituted a breach of the parties' rental agreement. He further alleged he suffered inconvenience, annoyance, discomfort, and emotional distress under a nuisance cause of action. SWTA denied liability, claiming the lines had been allowed to sag too low. It also argued SWTA could not recover for breach of contract or nuisance as a matter of law.

¶3 After Taylor dismissed his breach of contract claim, the claims for negligence and nuisance proceeded to jury trial on September 3 and 4, 2019. Taylor testified he was on another part of his property when SWTA's general manager called and told him the power lines by his shop and scale house had been pulled down. Taylor could see from where he was located that his 100-foot radio tower had been pulled down. When he arrived at the scene, he saw the arm of the truck was wrapped and tangled in wire and the driver was inside the vehicle, unsure if the lines were still energized. Taylor called his neighbor, a lineman, who ensured the breaker was off and helped cut and untangle the lines from the truck.

¶4 The truck traveled at least thirty feet before stopping, and the collision broke the power pole; pulled the electrical systems out of Taylor's grain bins, scale house, shop, a barn, and a corral; and damaged the roof on the barn, the security system to the scale house and shop, a three-phase converter, and radios on the scale house. As noted, it also destroyed a 100-foot radio tower Taylor used for communicating with others. The area was without power for approximately two weeks. Refrigerated medications inside the scale house spoiled. Taylor submitted estimates and invoices for the costs of repairing or replacing the damage totaling $32,122.81.

¶5 Taylor testified he suffered mental distress as a result of dealing with the property damage and subsequent litigation. He said he feared his family members might have been electrocuted. He stated the property damage was annoying, inconvenient, and discomforting. He complained about SWTA's failure to pay him for the property damage, claiming they promised to do so. He also expressed dismay at the length of time it took to reach a jury trial. He testified "this whole process . . . just having to go to depositions, making sure somebody is covering for me" had affected him and that he would not wish this on anyone.

¶6 At the close of Taylor's evidence, SWTA moved for a directed verdict on the nuisance claim. SWTA argued a nuisance theory was not appropriate because the case only involves personal property damage. It argued nuisance requires real property damage and typically arises out of an adjacent or continuous landowner's use of their own property, neither of which are implicated here. It further claimed allowing the nuisance theory to proceed would undermine the damage cap placed on property claims under the Governmental Tort Claims Act. Finally, SWTA contended nuisance requires substantial damages, annoyance, or inconvenience.

¶7 The trial court denied the motion, finding a nuisance theory was appropriate because improvements and appurtenances to real property were involved. The court also cited Truelock v. Del City, 1998 OK 64, 967 P.2d 1183, as support for allowing a nuisance claim to proceed under the Governmental Tort Claims Act. Finally, the court found Taylor had presented sufficient evidence to present the issue to the jury and ruled that whether "substantial" evidence was presented to award damages for nuisance was a question for the jury. Following the presentation of its evidence, SWTA renewed its motion for directed verdict, which the court also denied. The jury returned verdicts for Taylor in the amount of $25,000 for negligent injury to property and $100,000 for nuisance. SWTA appeals.

¶8 In reviewing a judgment on a jury verdict, the judgment will be affirmed if there is any competent evidence to support the verdict. Grumman Credit Corp. v. Rivair Flying Service, Inc., 1992 OK 133, ¶10, 845 P.2d 182. "Though this standard of review is difficult for an appellant to overcome, it comes into play only when the matter at hand was appropriately submitted to the jury in the first place. The question of whether the evidence was sufficient to have been submitted to a jury, raised by a motion for directed verdict, presents a legal issue for our consideration." Guthrie v. Indep. School Dist. No. 1-30 of Adair County, 1998 OK CIV APP 47, 59, 958 P.2d 802.

¶9 Accordingly, we review de novo the trial court's denial of SWTA's motion for directed verdict. See Computer Publications, Inc. v. Welton, 2002 OK 50, ¶ 6, 49 P.3d 732. De novo review means this Court has "plenary, independent and non-deferential authority to reexamine the trial court's legal rulings." Polymer Fabricating, Inc. v. Employers Workers' Compensation Ass'n., 1998 OK 113, n.8, 980 P.2d 109. A motion for directed verdict should be granted if the party opposing the motion has failed to demonstrate a prima facie case for recovery. See Gillham v. Lake Country Raceway, 2001 OK 41, ¶7, 24 P.3d 858.

¶10 This case is subject to Oklahoma's Governmental Tort Claims Act (the Act), 51 O.S. 2011 §§151--172. The Act limits liability of the state and its political subdivisions to $25,000 "for any claim or to any claimant who has more than one claim for loss of property arising out of a single act, accident, or occurrence[.]" Id., §154(A)(1). The Act also, however, allows an award of up to $125,000 "to any claimant for a claim for any other loss arising out of a single act, accident, or occurrence." Id., §154(A)(2). In Truelock, the Court held that nuisance damages, including such things as inconvenience, annoyance and discomfort, are recoverable under the Act, but limited by §154(A)(2) to $100,000 (now $125,000).

Tytenicz, Eylar, Kiser, Slape, and Lowe, make inescapable the conclusion that the cause of action for inconvenience, annoyance, and discomfort is one for personal injury and is separate and distinct than the cause of action for damages to property, although the right to both may arise in a suit for nuisance. We hold, therefore, that a claim for inconvenience, annoyance, and discomfort under §154 of the Governmental Tort Claims Act is governed by the $100,000.00 limitation for "other loss" rather than by the $25,000.00 limitation for "loss of property."

Id., 1998 OK 64, ¶14 (citing Oklahoma City v. Tytenicz, 1935 OK 433, 43 P.2d 747; Oklahoma City v. Eylar, 1936 OK 614, 61 P.2d 649; City of Holdenville v. Kiser, 1937 OK 29, 64 P.2d 1223; Town of Braggs v. Slape, 1952 OK 396, 250 P.2d 214; and City of Cordell v. Lowe, 1963 OK 265, 389 P.2d 103). Truelock, however, was undisputedly a nuisance case, involving the frequent flooding of a home and Del City's inability or refusal to properly maintain its easement.

¶11 SWTA disputes whether Taylor presented a prima facie case for nuisance entitling him to recovery under §154(A)(2), claiming Taylor improperly recast his theory of liability to avoid the $25,000 damages cap. A "private nuisance" is "a nontrespassory invasion of another's interest in the private use and enjoyment of land." Nichols v. Mid-Continent Pipe Line Co., 1996 OK 118, ¶11 & n.15, 933 P.2d 272 (citing the Restatement (Second) of Torts §821D).

The term "nuisance" signifies in law such a use of property or such a course of conduct irrespective of actual trespass against others, or of malicious or actual criminal intent, which transgresses the just restrictions upon use or conduct which the proximity of other persons or property imposes. It is a class of wrongs which arises from an unreasonable, unwarranted, or unlawful use by a person or entity of property lawfully possessed, but which works an obstruction or injury to the right of another.

Briscoe v. Harper Oil Co., 1985 OK 43, ¶9, 702 P.2d 33. The Restatement (Second) of Torts provides at §822 in comment k (1979):

It is also important to remember that for negligent or reckless conduct to be actionable as a private nuisance, the risk involved must be the risk of the invasion of an interest in the use and enjoyment of land. Conduct that is negligent or reckless because it creates an unreasonable risk of some other kind of harm may not be determinative of the liability involved in this Section.

¶12 We agree with SWTA. Taylor's cause of action resulted from the single-event alleged negligence of SWTA's employee causing repairable personal property damage for which Taylor sought recovery. Those damages are limited to $25,000 under the Act.

In finding a cell phone tower was not a nuisance to an adjoining property owner, our Supreme Court held, "Our jurisprudence demands evidence of substantial interference with the use and enjoyment of property." Laubenstein v. Bode Tower, L.L.C., 2016 OK 118, ¶12, 392 P.3d 706. See also Kenyon v. Edmundson, 1920 OK 351, ¶6, 193 P. 739 (noting an alleged nuisance must "substantially interfere with the ordinary comforts of human existence."). Unlike Truelock, this is not a case where Taylor's home or farm was made uninhabitable by constant flooding and sewage overflows. Truelock, ¶¶1-2, 28. Rather, SWTA entered the property upon Taylor's request and inadvertently collided with the power line, causing damage to Taylor's personal property. No doubt Taylor was inconvenienced to have lost power to part of his property during the two weeks while it was being restored, but such facts do not constitute a substantial interference with his interest in the land.

¶13 Further, the allegation of personal injury is not enough to establish a claim for nuisance here. Taylor's testimony relayed his "inconvenience, annoyance, and discomfort" about the damage to his personal property and from the resulting litigation, not from a loss of use or enjoyment of his land. His home and farm were unaffected, and the amount of time he was without power was not beyond what a reasonable person would be expected to endure in a personal property damage case such as this. Frustration related to property damage repair and replacement is generally not recoverable. See McMeakin v. Roofing and Sheet Metal Supply Co. of Tulsa, 1990 OK CIV APP 101, ¶7, 807 P.2d 288 ("Neither party has cited an Oklahoma decision, and we are not aware of any, which has allowed recovery of emotional distress injuries in a negligent injury to property case.").

¶14 We disagree with Taylor's contention that the case was properly submitted to the jury because he satisfied the elements of "statutory nuisance" under 50 O.S. 2011 §1.1 Section 1 merely "defines the generic term 'nuisance' -- not nuisance per se, nuisance per accidens, public or private nuisance." State ex rel. Fallis v. Mike Kelly Const. Co., 1981 OK 158, ¶4, 638 P.2d 455. Accordingly, whether Taylor presented sufficient evidence to satisfy §1 is not dispositive. Private nuisance requires a substantial interference with the use and enjoyment of real property, and §1 does not abrogate that principal. See Nichols, ¶8.

¶15 The above principles establish that Taylor could not meet the requisite elements of nuisance against SWTA. We find the trial court erred as a matter of law in denying SWTA's motions for a directed verdict and submitting the case to the jury. We therefore reverse the $100,000 nuisance judgment in favor of Taylor and direct the trial court to enter judgment in favor of SWTA on that claim. Because we reverse the judgment on this ground, we need not reach SWTA's additional claims of error.

¶16 REVERSED IN PART AND REMANDED.

GOREE, P.J., and PRINCE, J., concur.

FOOTNOTES

1 Section 1 provides:

A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:

First. Annoys, injures or endangers the comfort, repose, health, or safety of others; or

Second. Offends decency; or

Third. Unlawfully interferes with, obstructs or tends to obstruct, or renders dangerous for passage, any lake or navigable river, stream, canal or basin, or any public park, square, street or highway; or

Fourth. In any way renders other persons insecure in life, or in the use of property, provided, this section shall not apply to preexisting agricultural activities.