Consider a case where a plaintiff suffers emotional distress arising from the defective construction of her dream home. Improper grading and soil compaction, both a direct result of the homebuilder’s negligence, causes standing water and ground saturation. The dampness results in significant structural damage to the home, forcing the plaintiff to move into a rental apartment until her dream home can be repaired. The repairs continue for several years subjecting the plaintiff to significant inconvenience and stress. At various times during those several years, the plaintiff is completely displaced from her home and thus unable to carry out the functions that most of us consider commonplace but integral to our daily lives. The plaintiff’s inability to entertain in her home causes her family business to suffer. When she is able to inhabit her home, her life is constantly disrupted by workers, foul and moldy odors, and ongoing construction. As a result, the plaintiff suffers deep anxiety, tension, depression and outbreaks of eczema. She also sees a therapist and takes prescription medication for her depression. Are plaintiff’s emotional distress damages recoverable in her claim against the negligent homebuilder?
There are currently no Arizona cases directly on point as to whether homeowners can recover emotional distress damages because of construction defect to their home. But such emotional distress damages may be recoverable if the emotional distress is unrelated to the pecuniary loss. In Arizona, a party may recover damages for emotional distress arising out of the tortious loss of property only when the tortious act directly harmed the plaintiff and affected or burdened a personal, as opposed to an economic or other interest belonging to the plaintiff. In the case of the plaintiff above, she may be able to recover emotional distress damages in Arizona because the homebuilder’s negligence did not only cause direct monetary loss, but also displaced the plaintiff from her home. Thus, the particular facts of this situation seem to support a finding that the tortious acts of the homebuilder directly harmed the plaintiff and affected or burdened a personal interest, thus allowing the recovery of damages for emotional distress related to the displacement from her home.
However, if the facts were that the homebuilder’s negligence caused only economic loss that put the plaintiff’s financial security at risk, causing emotional distress and various ills, emotional distress damages would likely not be recoverable.
Thus, while no Arizona case directly addresses the recovery of emotional distress damages in construction defect cases, the answer to whether emotional distress damages can be recovered is “yes,” but will depend heavily on the facts of the case. The facts are critical, as the tortious act must directly harm the plaintiff and affect or burden a personal interest for such damages to be recoverable. Emotional distress solely as a consequence of economic damages will likely not be recoverable.
