COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72397 HENRY STECHLER : : Plaintiff-Appellant : JOURNAL ENTRY : v. : AND : PETER HOMYK : OPINION : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 16, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Cuyahoga County Common Pleas Court, Case No. CV-308930 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: Plaintiff-Appellant: Defendant-Appellee: ROBERT S. BELOVICH MARTIN T. FRANEY 5638 Ridge Road Gravens & Franey Co., L.P.A. Parma, Ohio 44129 1240 Standard Building 1370 Ontario Street JULIA RYAN SULLIVAN Cleveland, Ohio 44113 Sullivan & Sullivan Ltd. 1300 Bank One Centre 600 Superior Avenue E. Cleveland, Ohio 44114 O'DONNELL, P.J.: Henry Stechler appeals from a decision of the common pleas court granting summary judgment in favor of Peter Homyk in connection with Stechler's claim that Homyk negligently left the -2- water running, which overflowed into Stechler's apartment and caused him to suffer a nervous breakdown. Because Ohio does not recognize a claim for negligent infliction of emotional distress resulting from property damage, we affirm the judgment of the trial court. On May 20, 1995, around midnight, Stechler discovered water leaking through the kitchen ceiling of his apartment. He later learned that Homyk, who occupied the apartment directly above him, had inadvertently left water running and caused the flooding condition in Stechler's apartment. As a result of the water leaking into his apartment, Stechler became distressed over the following five days when apartment maintenance personnel failed to repair the damage. Thereafter, he admitted himself to the Veterans Administration Hospital for psychiatric treatment, where he remained for sixteen days. About a year later, Stechler filed a complaint against Homyk, alleging that Homyk's negligence caused him to suffer a nervous breakdown and to incur property damage to his apartment. In response, Homyk filed a motion for summary judgment, alleging that Stechler failed to state a claim for relief because Ohio does not recognize a claim of negligent infliction of emotional distress caused by witnessing the injury or destruction of property. Stechler opposed this motion, asserting that he had not filed a claim for negligent infliction of emotional distress, but rather a claim for creation of a mental illness arising from Homyk's negligence. To facilitate the court's consideration of the -3- summary judgment motion, the parties stipulated to the facts and articulated the issue for resolution concerned whether Homyk's negligence caused Stechler's injuries. After consideration, the court granted summary judgment to Homyk. Stechler now appeals, raising one assignment of error for our review which states: THE TRIAL COURT ERRED IN GRANTING DEFENDANT, PETER HOMYK'S, MOTION FOR SUMMARY JUDGMENT. Stechler contends the trial court erred when it granted summary judgment to Homyk, claiming he properly asserted a claim for development of an adjustment disorder requiring hospitalization as a consequence of Homyk's negligence. Homyk urges the trial court did not err when it granted him summary judgment, because he asserts that Ohio does not permit recovery for serious emotional distress caused by witnessing destruction of one's property. The issue then presented for our review is whether the trial court erred when it granted summary judgment to Homyk. Civ.R. 56(C) sets forth the standard of review for cases involving summary judgment: * * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one -4- conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. This court reviews the trial court's grant of summary judgment de novo. See Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704; Abbott v. Parma (1996), 112 Ohio App.3d 570. Further, since the material facts are not disputed, our concern is whether Homyk is entitled to judgment as a matter of law on Stechler's claim. In his complaint, Stechler alleges that the flooding of his apartment upset him and caused him to suffer a nervous breakdown. In Strawser v. Wright (1992), 80 Ohio App.3d 751, the court considered Strawser's claim for negligent infliction of emotional distress resulting from the death of her Yorkshire terrier puppy as a result of the seller's alleged negligence in failing to immunize the puppy against Parvo. In reluctantly affirming the dismissal of the complaint, the court stated in relevant part at 755: Ohio law simply does not permit recovery for serious emotional distress which is caused when one witnesses the negligent injury or destruction of one's property. Further, in Williams v. Warren Gen. Hosp. (1996), 115 Ohio App.3d 87, the court considered Williams' claim that she suffered emotional distress while undergoing a CT scan and while engaging in consultations regarding her need for chemotherapy, because her physician negligently misdiagnosed her as having cancer. In affirming the summary judgment grant to that physician, the court stated in relevant part at 89-90: It has long been established that a plaintiff -5- may recover for emotional distress caused by the negligence of another * * *. Today, plaintiffs may be compensated for emotional distress despite the lack of a contemporaneous physical injury * * *. However, such emotional distress unaccompanied by physical injury must be severe and debilitating. * * * Further, where the plaintiff has not sustained a contemporaneous physical injury to recover for severe emotional distress, the plaintiff must demonstrate that he or she was in fear of physical consequences to his [or her] own person. * * * This fear of physical consequences must derive from a real and existing physical peril * * *. * * * the Supreme Court of Ohio has held that a plaintiff cannot recover for emotional distress where the distress is caused by the plaintiff's fear of a nonexistent physical peril. Having reviewed these and other cases, we have concluded that the trial court correctly granted summary judgment to Homyk, because Ohio simply does not permit recovery for negligent infliction of emotional distress caused by witnessing the destruction of one's property. Our analysis reveals that the claims advanced by Stechler, including his statement in his affidavit that he fell and hit his head on a cabinet, do not present justiciable claims. See Strawser, supra; Williams; supra. Because no genuine issues of material fact are in dispute and Homyk is entitled to judgment as a matter of law, we affirm the trial court's judgment. Judgment affirmed. It is ordered that appellee recover of appellant costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, J., CONCURS; DIANE KARPINSKI, J., CONCURS IN JUDGMENT ONLY (See Concurring Opinion) TERRENCE O'DONNELL PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(a). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72397 HENRY STECHLER : : -7- : Plaintiff-Appellant : : CONCURRING v. : : OPINION PETER HOMYK : : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: APRIL 16, 1998 KARPINSKI, J., CONCURRING IN JUDGMENT ONLY: I respectfully concur in judgment only. The trial court properly granted summary judgment because plaintiff failed to .