The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
18-905
JOSHUA L. ADAMS, ET AL.
VERSUS
UNION PACIFIC RAILROAD COMPANY, ET AL.
**********
APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 14-C-3165-B
HONORABLE A. GERARD CASWELL, DISTRICT JUDGE
**********
CANDYCE G. PERRET
JUDGE
**********
Court composed of D. Kent Savoie, Candyce G. Perret, and Jonathan W. Perry,
Judges.
AMENDED AND, AS AMENDED, AFFIRMED.
Kenneth Warren DeJean
Attorney at Law
Post Office Box 4235
Lafayette, LA 70502
(337) 235-5294
SPECIAL MASTER
William H. Howard, III
Alissa A. Allison
Laura E. Carlisle
Kathlyn G. Perez
Baker Donelson Bearman Caldwell
& Berkowitz, P.C.
201 St. Charles Avenue, Suite 3600
New Orleans, LA 70170
(504) 566-5200
COUNSEL FOR DEFENDANT/APPELLANT:
Union Pacific Railroad Company
Steven J. Levine
Paul LeBlanc
John B. Shortess
Phelps Dunbar, LLP
Post Office Box 4412
Baton Rouge, LA 70821-4412
(225) 346-0285
COUNSEL FOR DEFENDANT/APPELLANT:
Union Pacific Railroad Company
Antonio M. Clayton
Clayton, Frugé & Ward
3741 Highway 1 South
Port Allen, LA 70767
(225) 344-7000
COUNSEL FOR DEFENDANT/APPELLANT:
Union Pacific Railroad Company
Elena A. Pecoraro
Grant F. Freeman
Anna M. Grand
Pecoraro Law Firm
95 Woods Crossing, Suite 100
Lafayette, LA 70508
(337) 266-2233
COUNSEL FOR DEFENDANT/APPELLANT:
Union Pacific Railroad Company
D. Blayne Honeycutt
Colt J. Fore
Hannah Honeycutt Calandro
Fayard & Honeycutt
519 Florida Avenue, SW
Denham Springs, LA 70726
(225) 664-0304
COUNSEL FOR PLAINTIFF/APPELLEE:
Catherine Carriere
PERRET, Judge.
In this train derailment case, defendant, Union Pacific Railroad Company
(hereinafter, referred to as “Union Pacific”), appeals a trial court judgment that
awarded plaintiff, Catherine Carriere, damages in the amount of $6,840.00. For
the following reasons, we find that the trial court abused its discretion in awarding
Ms. Carriere $5,500.00 for her evacuation and inconvenience damages and we
hereby amend this award to $1,000.00. We affirm the $1,200.00 award for mental
anguish and the $140.00 award for clothes, for a total damage award of $2,340.00.
FACTS AND PROCEDURAL HISTORY:
On August 4, 2013, twenty-six railcars 1 derailed near Lawtell, Louisiana,
causing lube oil, dodecanol, and sodium hydroxide solution (also referred to as
sulfidic caustic solution) to spill from some of the derailed train cars. Union
Pacific owned and operated the train and tracks at issue and, as a result of the
derailment and chemical spill, authorities implemented a one-mile radius
evacuation zone that remained in effect until August 7, 2013.
Ms. Carriere filed suit against Union Pacific on July 11, 2014. On
September 12, 2016, Union Pacific stipulated to liability; thus, causation and
damages were the only issues before the trial court. On February 8, 2017, the trial
court appointed Kenneth DeJean as the Special Master pursuant to La.R.S.
13:4165, to preside over all the trials and ordered that each plaintiff’s case be tried
separately.2
1
Union Pacific’s brief refers to only twenty-three train cars derailing. However, the
evidence suggests that an updated report from Union Pacific indicated that twenty-six train cars
derailed.
2
The appointment of a special master may be made “[p]ursuant to the inherent judicial
power of the court and upon its own motion and with the consent of all parties litigant.” La.R.S.
13:4165(A). In such capacity, the special master “has and shall exercise the power to regulate all
proceedings before him and to do all acts and take all measures necessary or proper for the
efficient performance of his duties.” La.R.S. 13:4165(B). Such duties may include making
“findings of fact or conclusions of law.” La.R.S. 13:4165(C)(1).
Union Pacific presented its case on June 27-28, 2017, with Ms. Carriere
presenting her case on June 27, 2017. On October 11, 2017, the Special Master
issued his Report and Recommendation, which found that Ms. Carriere “has
proven that, it is more probable than not, her complaints and damages as stated at
trial were caused as a result of the train derailment and resulting chemical spill
and/or the threat of a chemical spill and the evacuation.” The Special Master
“recommend[ed] that the District Court find that causation for her complaints and
damages has been established” and recommended that the trial court award Ms.
Carriere $5,500.00 for “Evacuation/Inconvenience,” $1,200.00 for “Mental
Anguish,” and $140.00 for “Other (Clothes).” The Special Master’s Report and
Recommendation summarized Ms. Carriere’s testimony, as follows (citations to
the record omitted):
At the time of the derailment, Catherine Carriere was living
with her husband and two children at 104 Pine Loop. She did not hear
or see the derailment. She found out about the derailment when a
police officer came to her door and told her she had to evacuate right
away. She did not suffer any physical injuries as a result of the
derailment. While they were evacuated, the plaintiff and her two
children ultimately went to Evangeline Downs to stay until Tuesday
when they returned to their house. The plaintiff and her family were
evacuated for a total of three days.
On the Tuesday morning after the derailment, the plaintiff
drove her daughter to Shreveport for an MRI and then found out that
her daughter had to have her fourth surgery for brain tumors. She
testified that when she was on her way back from Shreveport on
Tuesday morning, the hotel at Evangeline Downs called her three
times and told her that they had to get their stuff out of the hotel. The
plaintiff testified that this was frustrating and nerve-racking. She
testified that she had to buy clothes as a result of the evacuation
because she was told it was only supposed to be an overnight
evacuation and the clothes cost about $140.00.
She testified that when she got back home, she witnessed the
clean-up process and this made her worried about her health and her
children’s health. She testified that she was inconvenienced by the
road closures after the derailment. She testified that she still worries
as a result of the derailment. She testified that she was dealing with a
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lot of other stuff during the time of the evacuation and the evacuation
compounded it and made it worse.
Ms. Carriere testified that Union Pacific paid for their hotel
room and food while they were evacuated. She testified that she did
not seek any medical treatment as a result of the derailment, nor did
her children or husband. She testified that for about two weeks after
the derailment, her family had to boil water to bathe in it because it
was discolored. She testified at trial that her fear did not go away
when she returned home after the evacuation order was lifted;
however, she testified during her deposition that her fear lasted only
until she got back home.
She testified that she did not lose any wages as a result of the
derailment. Ms. Carriere testified that there is no evidence that she
was exposed to any chemicals. When questioned on cross-
examination about any inconvenience the derailment caused her, Ms.
Carriere testified as follows:
Q: As a matter of fact, in your deposition, you said that this
derailment had no other effect on your daily life, other than the hotel
maybe throwing your clothes away, is that correct?
A: Correct.
Q: So in terms of inconvenience, and he said were you
inconvenienced as a result of it, in essence, Ms. Carriere, this is a
derailment, nobody wants a derailment to happen, but it didn’t affect
you and your family, thank God. Am I correct with that?
A: Correct.
She testified that when she went back home after the
evacuation, a DEQ representative tested the air quality of her home
and everything was safe. She testified that the derailment caused her
inconvenience and that it led to an increase in her emotional distress.
On October 23, 2017, Union Pacific filed an objection to the Report and
Recommendation with the trial court arguing for a de novo review on the basis that
the Special Master’s “findings of fact and conclusions of law are erroneous.”
Following a hearing on July 27, 2018, the trial court issued an oral ruling affirming
the Special Master’s Report and Recommendation and subsequently rendered a
3
written judgment in favor of Ms. Carriere and against Union Pacific. Notably, the
trial court awarded Ms. Carriere a lump sum in the amount of $6,840.00.3
Union Pacific now appeals this judgment, alleging the following five
assignments of error: (1) the trial court erred in awarding damages to Ms. Carriere
for mental anguish, absent any accompanying physical injury or property damage;
(2) the trial court erred in awarding damages to Ms. Carriere for mental anguish
concerning injury to other persons, when the conditions of La.Civ.Code art. 2315.6
were not satisfied; (3) the trial court erred in awarding damages to Ms. Carriere on
the basis of negligent infliction of inconvenience, absent any accompanying
physical injury or property damage; (4) the trial court abused its discretion by
awarding $5,500.00 for inconvenience; and (5) the trial court erred in awarding
$140.00 for out-of-pocket expenses, absent any accompanying documentary
support or corroboration for such expenses.
STANDARD OF REVIEW:
In this case, the trial judge sat as the trier of fact.4 In order for this court to
reverse the factual findings of the trial judge, manifest error must exist. Stobart v.
State, Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993). Under a manifest error
standard of review, this court can only reverse if it finds, based on the entire
record, that there is no reasonable factual basis for the factual finding and that the
3
The judgment at issue was signed on September 6, 2018, and was designated as final
and immediately appealable.
4
Although under the authority of La.R.S. 13:4165 the district court empowered the
Special Master to make findings of fact and conclusions of law, the Louisiana constitution and
laws vest the judicial power in judges to make the final determinations of fact and conclusions of
law. See Bordelon v. Louisiana Dep’t of Corrections, 398 So.2d 1103 (La.1981). In conformity
with that mandate, La.R.S. 13:4165(C)(3) provides, in pertinent part, “After a contradictory
hearing, the court may adopt the report, modify it, reject it in whole or in part, receive further
evidence, or recommit it with instructions.” In the present case, the trial court affirmed the
Special Master’s findings of fact and conclusions of law. Thus, the trial judge functioned as the
ultimate factfinder and adjudicator of the law in this case.
4
factfinder is clearly wrong. Id. As stated in Rosell v. ESCO, 549 So.2d 840, 844-
45 (La.1989) (citations omitted):
[w]hen findings are based on determinations regarding
the credibility of witnesses, the manifest error—clearly
wrong standard demands great deference to the trier of
fact’s findings; for only the factfinder can be aware of the
variations in demeanor and tone of voice that bear so
heavily on the listener’s understanding and belief in what
is said. Where documents or objective evidence so
contradict the witness’s story, or the story itself is so
internally inconsistent or implausible on its face, that a
reasonable fact finder would not credit the witness’s
story, the court of appeal may well find manifest error or
clear wrongness even in a finding purportedly based
upon a credibility determination. But where such factors
are not present, and a factfinder’s finding is based on its
decision to credit the testimony of one of two or more
witnesses, that finding can virtually never be manifestly
erroneous or clearly wrong.
Thus, this court must be cautious not to reweigh the evidence or to substitute its
own factual findings just because it would have decided the case differently.
Further, the trial court has much discretion in assessing general damages,
and an appellate court should not modify the award unless it is “beyond that which
a reasonable trier of fact could assess for the effects of the particular injury to the
particular plaintiff under the particular circumstances[.]” Youn v. Maritime
Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114
S.Ct. 1059 (1994). Only if the appellate court finds an abuse of discretion may it
examine prior awards of general damages to determine the amount the trier of fact
reasonably could award. Theriot v. Allstate Ins. Co., 625 So.2d 1337 (La.1993).
“In instances where the appellate court is compelled to modify awards, the award
will only be disturbed to the extent of lowering or raising an award to the highest
or lowest point which is reasonably within the discretion afforded the trial court.”
Id. at 1340.
5
DISCUSSION:
Mental Anguish Damages
Union Pacific argues in its first assignment of error that the trial court erred
in awarding damages to Ms. Carriere on the basis of mental anguish, absent any
accompanying physical injury or property damages. In support of this proposition,
Union Pacific cites to the Louisiana Supreme Court case Moresi v. State Through
Department of Wildlife and Fisheries, 567 So.2d 1081, 1095 (La.1990) wherein the
plaintiffs sought “to recover on the basis that defendants’ ordinary negligence
caused them only mental disturbance.” The court held that a plaintiff, without
bodily harm or property damage, may recover for mental injuries if the situation
creates “the especial likelihood of genuine and serious mental distress, arising from
the special circumstances, which serves as a guarantee that the claim is not
spurious.” Id. at 1096. Union Pacific argues that Ms. Carriere’s circumstances do
not constitute “special circumstances” and that the trial court manifestly erred in
awarding mental anguish damages under these facts.
In response, Ms. Carriere argues that the train derailment and evacuation
caused her emotional distress and that she can recover mental anguish damages
despite not having a physical injury or property damage.
Before addressing the merits of this assignment of error, it is worth noting
that a lump sum judgment of damages, as we have in this case, “is presumed to
award all items of damages claimed, and the appellant’s burden of proving the fact
finder clearly abused its great discretion is more difficult than usual because the
intention to award a specific amount for any particular item is not readily
ascertainable.” Boutte v. Nissan Motor Corp., 94-1470, p.12 (La.App. 3 Cir.
9/13/95), 663 So.2d 154, 161. Nonetheless, because the lump sum of $6,840.00
awarded for damages is the full amount the Special Master recommended on
6
behalf of Ms. Carriere, we assume the trial court adopted the Special Master’s
recommended mental anguish damage award of $1,200.00;
evacuation/inconvenience award of $5,500.00; and $140.00 for clothes. As such,
we will now address whether the trial court erred in awarding Ms. Carriere
damages for her mental anguish claim.
In this case, Ms. Carriere’s petition requests the following damages: costs of
medical treatment; past, present and future lost wages; past, present, and future
mental anguish; loss of enjoyment of life; inconvenience; nuisance; medical
monitoring expenses; contamination to property; and trespass. The Special Master
provided the following pertinent findings of fact (emphasis added):
1. A train derailment occurred on August 4, 2013 between the time of
3:20pm and 3:30pm in Lawtell, Louisiana.
2. This derailment involved a train and tracks owned, operated and
maintained by the defendant, Union Pacific Railroad Company.
3. As a result of the derailment, Governor Bobby Jindal issued a
proclamation declaring the area a disaster area. This was widely
disseminated by the local media and news outlets.
4. The media and local news outlets reported on the derailment and
evacuation as well as the threat posed by the chemicals being
transported in the rail cars.
5. As a result of this derailment, chemicals were spilled (including lube
oil, dodecanol and sodium hydroxide) from some of the derailed train
cars.
6. The derailment and its resulting chemical spill and the threat of the
spill was the cause of an evacuation order being issued for the
residents located within an approximate one mile radius of the
derailment with the center of the radius being the derailment site and
thus potentially extending that distance from either end of the
derailment.
7. As a result of the derailment and resulting chemical spill and/or threat
of chemical spill, many of the residents in areas near the derailment
and evacuation area were displaced and were required to be evacuated
from their homes, property and/or businesses. The result was
widespread fear and fright and/or mental anguish and anxiety for
many residents within the evacuation zone and extending to many
7
residents located outside of the evacuation zone based on the
perception of some residents of a real danger or threat of harm
from the derailment and the cargo and contents of some of the
tank cars.
....
17. The evacuation order and associated evacuation of residents was a
direct result of the train derailment.
18. Catherine Carriere, her husband and her two children were required to
evacuate on the day of the derailment and were evacuated for a total
of three days.
19. Catherine Carriere testified that she spent $140.00 on clothes as a
result of the derailment and resulting evacuation.
In light of these factual findings, the Special Master recommended the trial
court award Ms. Carriere $500.00 in damages for her mental anguish claim.
Specifically, the Special Master provided the following reasons for awarding
mental anguish damages:
In this case, I find that the testimony of Catherine Carriere
regarding what she experienced in the derailment, the chemical spill
and/or threat of chemical spill and evacuation to be credible. I find
that her concerns are real to her and that she has proven a particular
likelihood of genuine, serious and causally connected mental distress
arising from the special circumstances of the train derailment and
resulting chemical spill, the threat of a chemical spill and resulting
evacuation order. I find that the “special circumstances” of a train
derailment and resulting chemical spill and uncertain threat of
chemical spill and evacuation which occurred in close proximity to
plaintiff’s house are more serious and distressful circumstances than
the circumstances presented in the cases of Moresi and Bonnette [v.
Conoco, Inc., 01-2767 (La. 1/28/03), 837 So.2d 1219]. . Additionally,
unlike in Moresi and Bonnette, the plaintiff in this case, Catherine
Carriere, was required to evacuate from her home. This evacuation
order was issued as a precautionary measure in order to protect area
residents from any harm, or potential harm, arising from the
derailment and chemical spill. Furthermore, the widespread media
and government coverage and statements of authorities established
that there was a real threat of harm for area residents resulting from
the derailment and chemical spill. These are major distinguishing
factors between this incident and the incidents that occurred in Moresi,
Bonnette and Howard [v. Union Carbide Corp., 09-2750 (La.
10/19/10), 50 So.3d 1251] that cannot be ignored. As such, for the
reasons stated above, and the law and evidence herein, I find that this
case is factually distinguishable from Moresi, Bonnette and Howard.
8
I find the worry and fear of plaintiff, Catherine Carriere, to be
genuine, serious and reasonable under the circumstances. Catherine
Carriere had a lot going on in her life at the time of the derailment,
mainly her daughter’s health issues (brain tumors), and the derailment
and resulting chemical spill and evacuation compounded her
emotional distress. She testified that they had to boil their bath water
for about two weeks after the derailment because the water was
discolored. She testified that she spent about $140.00 on clothes as a
result of the derailment and evacuation because she was told it was
supposed to be an overnight thing. She testified that she witnessed the
clean-up process after the derailment and this made her worried about
her health and her children’s health.
Catherine Carriere was inconvenienced because she, along with
her husband and two children, were required to evacuate on the day of
the derailment, Sunday, August 4, 2013, and did not return home until
Tuesday, August 6, 2013. The plaintiff testified that she was further
inconvenienced because of the road closures after the derailment.
Considering the widespread coverage that the Lawtell train
derailment and resulting chemical spill received from the media, state
and local government and by word of mouth and the plaintiff’s close
proximity to the derailment site, I find the plaintiff’s concern to be
reasonable and more probable than not causally connected to the
derailment, threat of the chemical spill and/or perceived threat of the
chemical spill and the evacuation[.]
We also find Bonnette v. Conoco, Inc., 837 So.2d 1219, cited by Union
Pacific, distinguishable from the facts of this case because it involved claims for
exposure to asbestos, and the fear of developing an asbestos related cancer, and did
not involve claims for witnessing the wreckage of a train derailment, spilled
chemicals, a governor’s emergency proclamation, emergency response and
evacuation, and the lengthy clean-up of that derailment. Similarly, Moresi, 567
So.2d 1081, which involved a civil rights action by duck hunters against the state
game agents who left a note on the wrong camp, is also distinguishable for those
reasons. After a review of the record, we agree with the Special Master’s reasons
for awarding Ms. Carriere mental anguish damages and also find that Ms.
Carriere’s testimony regarding the train derailment, the uncertain threat of the
chemical spill, the evacuation that occurred within a mile of her home, and that she
9
worried about her family’s health and well-being throughout the evacuation and
cleanup presents the type of special circumstances described by the supreme court
in Moresi.
Based on these facts and the mental distress experienced by Ms. Carriere, we
find no abuse of discretion in the trial court’s damage award of $1,200.00 for her
mental anguish claim.
Mental Anguish Concerning Injury to Other Persons
Union Pacific argues in its second assignment of error that if this court finds
that Ms. Carriere is entitled to an award for mental anguish, then it should reduce
the award granted because Ms. Carriere’s derailment-related concern was based
upon concern for the welfare of others. Specifically, Union Pacific argues that Ms.
Carriere does not qualify for “by-stander” recovery under La.Civ.Code art. 2315.6,
and that the award is erroneous.
Louisiana Civil Code Article 2315.6 provides, in pertinent part, as follows:
A. The following persons who view an event causing injury to
another person, or who come upon the scene of the event soon
thereafter, may recover damages for mental anguish or emotional
distress that they suffer as a result of the other person’s injury:
(1) The spouse, child or children, and grandchild or
grandchildren of the injured person, or either the spouse, the child or
children, or the grandchild or grandchildren of the injured person.
(2) The father and mother of the injured person, or either of
them.
....
B. To recover for mental anguish or emotional distress under
this Article, the injured person must suffer such harm that one can
reasonably expect a person in the claimant’s position to suffer serious
mental anguish or emotional distress from the experience, and the
claimant’s mental anguish or emotional distress must be severe,
debilitating, and foreseeable. Damages suffered as a result of mental
anguish or emotional distress for injury to another shall be recovered
only in accordance with this Article.
10
Ms. Carriere testified that the train derailment still impacts her life today and
that it still worries her. Even though she agreed with counsel that she was “dealing
with a whole lot of other stuff during the point in time of the evacuation[,]” she
testified that the derailment “just compounded it and made it worse.” We find the
record supports that Ms. Carriere, herself, suffered mental anguish by having to
evacuate her family for two days, having to witness the cleanup process after the
derailment, and having to worry about her family’s health because of the
derailment. Accordingly, we find no merit in this assignment of error.
Negligent Infliction of Inconvenience
Union Pacific alleges in its third assignment of error that the trial court erred
in awarding damages to Ms. Carriere on the basis of negligent infliction of
inconvenience, absent any accompanying physical injury or property damage.
Union Pacific argues that “Louisiana courts have never permitted the recovery of
damages for ‘inconvenience’ from an ‘evacuation’ in instances where those
evacuated persons had no physical injury or property damage, and were provided
reasonable accommodations.”
Contrarily, Ms. Carriere argues that “inconvenience damages can be
awarded as general damages” and that she “suffered a ‘present injury’ in having to
evacuate her home for three days” and that the “evacuation was the result of a
proven event which caused a temporary deprivation of . . . [her] legally protected
interest in her home.” Ms. Carriere cites to McDonald v. Illinois Central Gulf
Railroad Co., 546 So.2d 1287 (La.App. 1 Cir.), writs denied, 551 So.2d 1340
(La.1989) to support her argument that Louisiana law allows recovery for
inconvenience when plaintiffs are forced to immediately evacuate from their home.
In McDonald, a train derailed about half a mile from the McDonalds’ home
causing a huge explosion. The explosion caused a fire to erupt, and it blew out the
11
front windows of the Quick Stop Grocery Store, which was owned and operated by
Mr. and Mrs. McDonald. Although Mr. McDonald actually witnessed the
explosion that caused glass to break in his store, Mrs. McDonald only heard the
explosion from her home. The McDonalds were forced to flee their home for two
weeks and had to live with relatives.
On appeal, the court found an award for the McDonalds’ inconvenience was
appropriate. Specifically, the court stated, in pertinent part:
The inconvenience he [Mr. McDonald] experienced during the
evacuation is also compensable, since it is directly related to the
derailment. Likewise, Mrs. McDonald is entitled to an award for
inconvenience during the two weeks she was forced to stay with
relatives during the evacuation. Both were forced out of their home
by the derailment and were, even for another two weeks, compelled to
spend all their time cleaning up their home and store. An award of
$5,000.00 to each plaintiff for immediate inconvenience is appropriate.
McDonald, 546 So.2d at 1292 (citation omitted).
Ms. Carriere testified that she was inconvenienced by the road closures in
her area, and she evacuated with only one night of clothes after being told that the
evacuation would last one day. Ms. Carriere also testified that she was
inconvenienced by having to evacuate with her husband and two children for three
days.
Similar to the McDonalds, Ms. Carriere testified that her home was within a
mile from the derailment, and that she had to evacuate with her husband and two
children for a couple of days. Based on these facts, we cannot say the trial court
abused its great discretion in awarding Ms. Carriere with damages for
inconvenience. Accordingly, we find no merit to this assignment of error.
Damage Award of $5,500.00 for Negligent Infliction of Inconvenience
As an alternative to its third assignment of error, Union Pacific argues in its
fourth assignment of error that the trial court abused its discretion by awarding Ms.
12
Carriere $5,500.00 for inconvenience. In support of its argument, Union Pacific
cites to England v. Fifth Louisiana Levee District, 49,795 (La.App. 2 Cir. 6/3/15),
167 So.3d 1105, wherein the plaintiffs had no physical injuries or physical damage
to their property, to suggest that the highest reasonable award justified by this
record is $50.00 per day. In response, Ms. Carriere cites to McDonald and In re
New Orleans Train Car Leakage Fire Litigation, 00-1919 (La.App. 4 Cir.
4/20/05), 903 So.2d 9, writ denied, 05-1297 (La. 2/3/06), 922 So.2d 1171, to
support her award of $5,500 for inconvenience damages.
In McDonald, 546 So.2d 1287, the first circuit concluded the highest
reasonable award permissible for inconvenience, where the plaintiffs were forced
to evacuate following a train derailment that caused explosions and fires which
damaged their property, was $5,000.00 for four weeks of evacuation and
inconvenience. In that case, the McDonalds were forced to flee their home and
business for two weeks and had to live with relatives. When they could return, the
McDonalds spent time cleaning up the mess on their property that was left behind
from the explosions and fire.
In In re New Orleans Train Car Leakage Fire Litigation, 903 So.2d 9, the
fourth circuit affirmed the finding that damages for inconvenience were
appropriate for numerous plaintiffs injured by a leaking tank car fire. The
defendants only challenged one of the evacuation/inconvenience awards, and that
was of Jacqueline Thomas. Ms. Thomas was awarded $60,000.00 for physical
pain and suffering, $25,000.00 for mental anguish, and $15,000.00 for
evacuation/inconvenience. The defendants challenged the entirety of her award as
being unsupported. Not only did Ms. Thomas experience physical symptoms, she
was elderly and caring for five of her grandchildren. She, along with the children,
evacuated to an overcrowded shelter that was unsanitary. She did not have time to
13
pack extra clothes and continued to wear a shirt soaked with urine because she did
not have enough diapers for the baby. When Ms. Thomas returned home, she had
to clean the entire house, wash all of the clothes, and throw away all of the food.
The appellate court affirmed the award.
England, 167 So.3d 1105, also supports an award in this case. In England,
the second circuit awarded $50.00 per day for ten days for inconvenience damages
due to a contaminated water supply plus an additional $100.00 for direct expenses
for the cost of additional water supplies. Plaintiffs in that case were forced to
make trips to laundry facilities, daily trips to bathe at friends’ homes, and trips to
purchase bottled water. The England court specifically stated that “loss of use of
property allows for economic recovery in tort.” Id. at 1113.
Additionally, the fourth circuit in Adams v. CSX Railroads, 01-114 (La.App.
4 Cir. 4/20/05), 902 So.2d 413, also reviewed the same leaking tank car fire
involved in In re New Orleans Train Car Leakage Fire Litigation, 903 So.2d 9.
Several plaintiffs sought review of the trial court’s denial of their motion for new
trial in which they alleged there was no factual basis to support the low damages
awarded by the jury. On appeal, only one plaintiff’s evacuation/inconvenience
damage amount was challenged, that of Sandra August, who received $200.00 for
physical pain and suffering as well as $500 for evacuation/inconvenience.5 Ms.
August evacuated her home in the morning and returned home the following day.
She suffered from “eye, nose and throat irritation for two days[.]” Id. at 417. The
fourth circuit found no abuse in discretion of the $500.00 awarded for Ms.
August’s evacuation and inconvenience.
5
Shunta Dickerson was awarded $100.00 for “evacuation expenses[,]” but those damages
were not listed as “evacuation/inconvenience” damages as were Ms. August’s damages. Adams,
902 So.2d at 417 (emphasis added).
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In this case, Ms. Carriere testified that the only inconvenience she
experienced was having to leave her home for forty-eight hours with her two
children. There is no evidence that she had to endure any particular hardship,
especially considering that Union Pacific paid all expenses for room and board.
Although Ms. Carriere cites to McDonald and New Orleans Train Car Leakage
Fire Litigation to support her award of $5,500.00 for inconvenience damages, we
find these cases distinguishable based on the fact that the plaintiffs in those cases
suffered either physical injuries and/or property damages along with inconvenience
damages. We also find the England case distinguishable from the facts of this case
because unlike Ms. Carriere, the plaintiffs in England were not asked to evacuate
and were not displaced from their homes.
Accordingly, based on these facts where Ms. Carriere was provided all
expenses from room and board, and did not suffer any physical or property
damage, we find that the jurisprudence does not support the trial court’s award of
$5,500.00 for mere inconvenience. Rather, we find the highest reasonable award
justified for Ms. Carriere’s two-day evacuation/inconvenience is $500.00 a day.
Thus, we hereby amend Ms. Carriere’s evacuation/inconvenience damage award of
$5,500.00 to $1,000.00.
Damages for Clothes
Union Pacific argues in its fifth assignment of error that the trial court erred
in its award of $140.00 for out-of-pocket expenses (clothes), absent any
accompanying documentary support or corroboration of such expenses.
In the present case, Ms. Carriere testified that she “only took one change of
clothes” because she was told by a police officer that the evacuation would “be an
overnight thing.” Ms. Carriere relied upon the police officer’s information that the
evacuation would be overnight and testified that when the evacuation continued
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longer than a day, she had no choice but to buy clothes in order to take her
daughter to Shreveport for an MRI that was scheduled during the evacuation.
After a review of the record, and in consideration of the trial court’s broad
discretion in assessing damages, we find that the trial court had a reasonable
factual basis for its award of $140.00 for Ms. Carriere’s claim for clothes during
the mandatory evacuation. Accordingly, we find no merit to this assignment of
error.
CONCLUSION:
Accordingly, we find that the trial court abused its discretion in awarding
Ms. Carrier $5,500.00 for her evacuation and inconvenience damages and we
hereby amend this award to $1,000.00. Further, we affirm the $1,200.00 award for
mental anguish and the $140.00 award for clothes, for a total damage award of
$2,340.00. Costs of this appeal are assessed one-half to Ms. Carriere and one-half
to Union Pacific.
AMENDED AND, AS AMENDED, AFFIRMED.
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