NEW ORLEANS (Legal Newsline) - Four people who witnessed a loud explosion at a nearby refinery that sent flames shooting 55 feet into the air didn’t prove the “genuine and serious mental distress” necessary to win damages under Louisiana law, the state’s highest court ruled.
The decision by the Louisiana Supreme Court stopped short of the bright-line rule requested by Valero Refining preventing people who observe an accident but suffer no physical injuries from winning money for the experience. And several judges, while agreeing with the outcome, expressed concern that the majority had cited “public policy” considerations to craft their own standard for emotional damages claims instead of hewing to stricter language in the Louisiana Civil Code.
Brittany Spencer, Chloe LaFrance, Kevreion Raines, and Rosemary Gagliano were among multiple residents who sued Valero after an April 10, 2020, explosion in the hydrocracker unit at Valero’s Mereaux refinery. They claimed they were sleeping at their home 2,000 feet from the refinery when they were awakened by a loud bang and vibrations. Spencer said she went to her window and saw flames in the sky and later had trouble sleeping. Raines said she was helping to change the trach tube for her mother, a ventilator-dependent ALS patient, and also was fearful after the accident, as were the other plaintiffs.
There was no evidence dangerous chemicals were released. A justice of the peace dismissed the cases of Spencer, LaFrance and Raines and awarded Gagliano $850 in damages and costs. They all appealed to a district court, which awarded Spencer $1,250, Raines $2,500 and Gagliano $1,750. Valero lost at the Fourth Circuit Court of Appeal and appealed to the Louisiana Supreme Court.
In a Jan. 27 decision, the high court ruled that none of the plaintiffs had met the standard for winning emotional damages where there were no claims of physical injury. Unlike other states where courts enforce judge-made common law, Louisiana courts are supposed to follow the Napoleonic Code written and revised by legislators.
Emotional distress damages are allowed under Article 2315(A) of the Code, the Supreme Court observed, which says: “Every act whatever of man that causes damages to another obliges him by whose fault it happened to repair it.” To prevent spurious claims, however, courts must examine each case carefully, the court went on.
Plaintiffs don’t have to supply proof they were treated for their distress or medical records, the court ruled. They have to present “sufficient evidence of the nature and extent of the mental anguish suffered,” although it doesn’t have to be “severe and debilitating,” as with bystander injuries, which are covered under another section of the Civil Code.
Allowing the verdicts to stand in this case wouldn’t lead to “an unmanageable flow of litigation,” the court found, because there were “a finite number of plaintiffs arising out of a discrete accident.” But in this case none of the plaintiffs put forth evidence of anything more than “generalized fear and anxiety,” not the “especial likelihood of genuine and serious mental distress” required.
In a concurrence, Justice John Weimer agreed the plaintiffs had no case, but said the majority shouldn’t have cited “policy considerations” in its decision since Section 2315.6 of the Civil Code spells out what the law is. Passed after the Louisiana Supreme Court allowed mental distress damages for bystanders in 1990, that section says “emotional distress must be severe, debilitating, and foreseeable.”
The majority’s approach “will only frustrate the objective we all agree upon—guaranteeing these claims are not spurious,” the judge wrote. “Our definition should be narrowly tailored to restrict recovery to exceptional cases, as the legislature did.”
Justice Jay B. McCallum also concurred, with reservations about how the majority crafted its own rule instead of relaying on language in the Civil Code.
“The words of a literary critic may be instructive in understanding the meaning of a poem, but they do not constitute the original work itself,” he wrote. “Likewise, our opinions do not constitute the law, but reflect only our attempt to apply the existing, written law to the facts of a case.”
In support of its decision, the majority cited a case where the Supreme Court rejected emotional damages for hunters who sued the Louisiana Department of Wildlife and Fisheries after a warden left a message on their camp door saying “We missed you this time but look out next time!” The hunters said the note left them fearful and kept them from enjoying the sport but the court said they didn’t suffer property damage or had any reason to fear for their safety.
The court similarly rejected emotional damages for property owners who discovered a refinery had delivered soil containing asbestos to their land. Plaintiffs “must prove their claim is not spurious by showing a particular likelihood of genuine and serious mental distress,” the court ruled in that case.