Baker v. Shymkiv

Locher, J. This case presents one issue: whether the trial court erred by instructing the jury that only foreseeable damages could result in liability. Appellants, the Shymkivs, contend that the trial court properly charged the jury on foreseeability. We disagree. Initially, we note that appellants argue against affirmance in this case because “* * * it appears that the Court of Appeals was attempting to carve out an exception to the long standing rule in Ohio that there can be no recovery for mental duress, fright, shock, etc., without a contemporaneous physical injury. * * *” (Citations omitted.) Regardless of whether one accepts appellants’ characterization of the decision by the court of appeals, Schultz v. Barberton Glass Co. (1983), 4 Ohio St. 3d 131, overruling Miller v. Baltimore & Ohio S.W. RR. Co. (1908), 78 Ohio St. 309, and its progeny, eliminates the requirement of contemporaneous physical injury in actions for the negligent infliction of serious emotional distress. Our holding in Schultz notwithstanding, this court presaged today’s decision while the contemporaneous physical injury rule was still in effect: “* * * In the absence of a contemporaneous physical injury, damages attributable to [153] mental distress are usually recoverable only if the wrongdoer’s act is a malicious or outrageous invasion of a personal right. See Miller v. Baltimore & Ohio Southwestern Rd. Co., supra; Housh v. Peth (1956), 165 Ohio St. 35 [59 O.O. 60], 133 N.E. 2d 340. In such a factual situation, the courts are confronted with an innocent victim and an intentional wrongdoer, and hence it is not surprising that the interest of the victim in obtaining full compensation is placed above the interest of the wrongdoer in protecting himself against potentially speculative damage awards.” Columbus Finance v. Howard (1975), 42 Ohio St. 2d 178, 185 [71 O.O.2d 174]. Intentional trespassers are within that class of less-favored wrongdoers.1 For example, under the Restatement of Torts 2d, intentional conduct is an element of trespass: “One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other or causes a thing or a third person to do so * * (Emphasis added.) Restatement of Torts 2d 277, Section 158. The Restatement also articulates the scope of liability for a trespass in Section 162, which states: “A trespass on land subjects the trespasser to liability for physical harm to the possessor of the land at the time of the trespass, or to the land or to his things, or to members of his household or to their things, caused by any act done, activity carried on, or condition created by the trespasser, irrespective of whether his conduct is such as would subject him to liability were he not a trespasser.” Id., at pages 291-292. Comment/to Section 162 of the Restatement explains the intended effect of that provision: “/ Peculiar position of trespasser. This Section states the peculiar liability to which a trespasser is subject for bodily harm caused to the possessor of land or the members of his family by the conduct of a trespasser while upon the land, .irrespective of whether his conduct if it occurred elsewhere would subject him to liability to them. * * * Thus, one who trespasses upon the land of another incurs the risk of becoming liable for any bodily harm which is cause [sic] to the possessor of the land or to members of his household by any conduct of the trespasser during the continuance of his trespass, no matter how otherwise innocent such conduct may be.” Id., at page 293. Accordingly, we hold that damages caused by an intentional trespasser need not be foreseeable to be compensable. We affirm the judgment of the court of appeals. Judgment affirmed. Celebrezze, C.J., W. Brown, Sweeney, C. Brown and J. P. Cele-' brezze, JJ., concur. [154] Holmes, J., concurs separately. Footnotes [1] We make no decision in this case, however, as to the liability of a “Good Samaritan” who intentionally trespasses upon another’s land.