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Vincent v. City of Iowa

Court of Appeals of Louisiana, Third Circuit

April 11, 2018



          Jerry J. Falgoust Falgoust and Caviness, L.L.P. COUNSEL FOR DEFENDANT/APPELLANT: City of Iowa

          Gregory P. Marceaux Marceaux Law Firm, LLC COUNSEL FOR PLAINTIFFS/APPELLEES: Randall Vincent Karen Vincent

          Court composed of Marc T. Amy, Shannon J. Gremillion, and Candyce G. Perret, Judges.

          MARC T. AMY, JUDGE.

         The plaintiffs filed suit after a City sewerage line discharged into their home in 2014, causing damage to their home as well as their personal property. Although the City provided for certain repairs to the home, as well as relocation expenses while their home was being repaired, the City denied their remaining claim. It instead challenged the extent of the plaintiffs' loss and asserted that the plaintiffs failed to properly mitigate their damages. The trial court found in the plaintiffs' favor as to a first incidence of sewage discharge, awarding damages for certain contents of the home, mental anguish, and loss of use. The trial court denied damages associated with a second sewage discharge event. The City appeals. The plaintiffs answer the appeal, seeking additional damages. For the following reasons, we affirm.

         Factual and Procedural Background

         The plaintiffs, Karen and Randall Vincent, allege that on February 2, 2014, they discovered sewage overflowing from a toilet into their Iowa home while preparing for a Super Bowl Sunday gathering. The discharge was subsequently found attributable to blockage in the City of Iowa's sewerage line.

         Mrs. Vincent explained that, while preparing for her party, she noticed that her feet had become wet and that she subsequently discovered the sewage waste coming from a toilet in what appeared to her to be a "volcano[.]" The record indicates that the sewage flowed into multiple rooms of the home and reached accumulations of up to two inches. Mr. Vincent was able to stop the overflow by releasing a "washout cap" outside of the home. He explained, however, that once the cap was opened, "[e]verything started gushing out there on the ground. The toilet paper, fecal matter … you can just about imagine."

         With the overflow stopped, the plaintiffs, along with family members, immediately began to remove the accumulation of what was identified as raw sewage from the interior of the home that evening, doing so until approximately midnight. The City was contacted the following day, with its Public Works Director visiting the home. Although testimony indicated that an obstruction in the line was identified and remedied, the plaintiffs alleged that a second overflow occurred on February 5, 2014. Mrs. Vincent explained that she discovered the second overflow, which purportedly occurred in the master bathroom.

         A few nights later, the plaintiffs, along with their daughter and three grandchildren, [1] relocated to two adjoining rooms at a nearby hotel due to conditions in the home and so that repairs could be made. With regard to the latter, a contractor began working in the home, replacing flooring, replacing sheetrock, and painting the interior. During that period of construction, the plaintiffs stored much of the home's contents in a storage "pod" placed on their driveway for that purpose.

         The plaintiffs and their family returned to their home from the hotel after approximately two months. By that time, the City had compensated the plaintiffs for their hotel stay and for related living expenses. Additionally, the City approved the payment of approximately $29,000.00 in repairs to the home. However, the City rejected the plaintiffs' claim for damages associated with the second discharge, that allegedly occurring in the master bathroom on February 5, 2014.

         Mr. and Mrs. Vincent filed this matter in January 2015, alleging that the City's negligence in the maintenance and inspection of the sewerage system was the sole cause of the occurrence. The plaintiffs sought an award for property damage, depreciation of property, mental anguish and emotional distress, loss of earnings, rental expenses, and other unnamed damages. Following a two-day bench trial, the trial court found in favor of the plaintiffs, concluding that "there's no doubt that the City of Iowa is responsible for the February 2nd, ꞌ14 overflow and the … backflow into [the] house." However, the trial court denied certain claimed damages, but awarded damages as follows: $45,699.00 for contents damages; $75,000.00 for mental anguish damages ($35,000.00 to Mr. Vincent and $40,000.00 to Mrs. Vincent); and $60,000.00 for loss of use. The trial court imposed the latter loss of use award with a $15,061.00 credit in favor of the City for "loss of use damages previously paid[.]" The trial court denied an award associated with the alleged February 5, 2014 overflow.

         The City appeals, asserting that the trial court: 1) abused its discretion in awarding a total of $75,000.00 for mental anguish; 2) abused its discretion in awarding $60,000.00 for loss of use of the residence (with a $15,061.00 credit for hotel expenses previously paid); and that it 3) was manifestly erroneous in its award of $45,699.00 for household property based upon what it considers were unreliable value estimates. The plaintiffs answer the appeal, seeking an additional $8,411.51 for replacement items purchased and $31,256.00 for further damages associated with the repair of the home.


         Mental Anguish Damages

         In its first assignment of error, the City questions whether the plaintiffs "experienced trauma as a result of the property damage and, if so, did the Trial Court's finding that Randall and Karen Vincent were entitled to awards for mental anguish of $35,000[.00] and $40,000[.00] respectively, represent an abuse of discretion[.]"

         As a starting point, we note that an award of damages for mental anguish arising from property damage is limited to situations in which property is damaged: 1) by a tortfeasor's "intentional or illegal act"; 2) by an act "for which the tortfeasor will be strictly or absolutely liable"; 3) by an act "constituting a continuing nuisance"; or 4) "when the owner is either present or nearby and suffered a psychic trauma as a direct result." Zaveri v. Husers, 16-866, 16-867, p. 21 (La.App. 3 Cir. 6/21/17), 224 So.3d 389, 404-05 (quoting Holzenthal v. Sewerage & Water Bd. of New Orleans, 06-0796, p. 39 (La.App. 4 Cir. 1/10/07), 950 So.2d 55, 79, writ denied, 07-0294 (La. 3/30/07), 953 So.2d 71), writ denied, 17-1286 (La. 11/6/17), 229 So.3d 475. As related above, it is uncontested that the plaintiffs in this case were in their home, witnessing and personally addressing the offending overflow of sewage into the home.[2]

         In Zaveri, 224 So.3d 389, a panel of this court explained that, although mental anguish damages may be appropriate in cases involving property damage, the complained-of anguish must constitute an actual mental injury. Mere worry associated with consequences of property damage is insufficient. Id. However, there is no requirement that associated medical treatment be pursued by the plaintiff. Id. Turning to review of the award in this case, we are mindful that "the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury." La.Civ.Code art. 2324.1.

         The City argues the circumstances of Mr. and Mrs. Vincent collectively in its unified assignment regarding the mental anguish awards. The City acknowledges in its brief that "[e]xperiencing sewage backing up into one's residence is undoubtedly a traumatizing experience." However, in arguing that the quantum awarded is excessive, the City suggests, in part, that Mr. and Mrs. Vincent experienced the difficulties in their home for a finite period, returning to the home after two months of renovation. Thus, the City contends, if any such award is appropriate in this case, this court should fashion an award in keeping with the $2,500.00 award for mental anguish found appropriate in Thibodaux v. St. Mary Parish Sewer District 07, 09-1466 (La.App. 1 Cir. 2/12/10) (unpublished opinion).

         On review, however, we find that the trial court's awards to both Mrs. and Mr. Vincent are supported by the record. We first address the $40,000.00 award to Mrs. Vincent. In fashioning that award, the trial court referenced Mrs. Vincent's detailed testimony at trial in which she related her experiences as follows:

There is mental anguish in this case. I kind of let Ms. Vincent go because she was suffering up here on the stand. And she probably needed to vent some. Let her go. Get it off her chest. I'm not going to say that that is what controls or I'm grounding this decision on, but I could see her pain and - - still today. S[h]e did mention it to her doctors during her visits and the doctors, I think Ms. Vincent said, may have even increased certain medications because of what happened.

         In her testimony, Mrs. Vincent explained that she previously had great pride in the presentation and cleanliness of her home, which was constructed following the destruction of the family's prior home in the same location by Hurricane Rita. She described her discovery of the sewage overflow with detail, reporting that "it was just going everywhere[]" and that she "couldn't get it to stop." She explained that the family set about cleaning the overflow, which she stated "reeked" and which, in some areas, "was going over [her] foot[.]" In addition to the hours that the family spent cleaning the home that evening, both she and her husband continued to attend to matters at the home[3] during the two months that repairs were made to the affected areas of the home. As to the scope of the problem, testimony and documentary evidence indicate that the sewage spread from the originating bathroom into two bedrooms, the great room, the foyer, the sunroom, the breakfast area, the kitchen, and the dining room. Given the ongoing repairs, the six-member family was relocated from their 3,000 square foot home to two-adjoining hotel rooms for two months.

         When asked how the occurrence had affected her, Mrs. Vincent testified that:

When it was all first going on it was a disbelief. It was like it wasn't going on. It was like an awful dream. Then when we w[ere] packing up stuff everybody was trying to help and everybody was making fun, you better be careful … because it was, it was my pieces, my antique pieces. A lot of glass. Pieces did get broke and I'd cringe. Everything - - all I could see, I guess because it hadn't - - I'm still not … I'm still not over [Hurricane] Rita … So going through this, it was like we w[ere] going all back through it because it was hell … I just could not deal with it. And when I started losing the fish, the aquariums[4] and the pieces were just - - you know, you'd think, look how old they are and once they hit my hands they're gone. You know, all th[ose] years just down the tubes.

         As addressed below, Mrs. Vincent further testified that she felt that the home continued to have an odor, one which she identified as a "musk" and explained that she now apologizes to guests to the home. Mrs. Vincent explained that, although her home had previously been "pristine," she now felt that there was "filth" everywhere, and that she lost interest in maintaining the home as she once did. When asked whether she was "suffering from depression[,]" Mrs. Vincent responded: "Oh, yeah." On this point, Mrs. Vincent denied having sought medical attention strictly related to this incident, but that "it [was] rolled over inside" appointments for her pre-existing medical conditions. As identified by the trial court, Mrs. Vincent explained that her physician "went up on some of [her] medicine, things like that[.]"

         Other witness accounts supported Mrs. Vincent's testimony. Mr. and Mrs. Vincent's son, Randall Vincent, Jr., responded "Oh, yes[]" when asked whether the incident affected his mother "emotionally[.]" In particular, he explained that Mrs. Vincent would "just start crying" upon the removal of antique furniture from the home and into the storage pod. He stated that: "Oh, man, carrying stuff out, seeing where the old finishes of the wood was just warping and wrinkling, coming off. She'd just start crying. You know … it's a collection, her hobby. That's what she loved to do." Mr. Vincent explained that his wife was "very depressed at times" and that "[s]he'd brush her hair and, you know, large amounts of hair would come out from the stress." Also, when asked to describe how Mrs. Vincent was affected, her daughter-in-law, Ashley Nicole Cormier, explained that:

Her - - everything was flipped upside down. They didn't know when they were going to be able to get back into their home. She lost a lot of things. She knew that she - - she knew she was going to lose them. It was upsetting. She was depressed. She cried a lot. I know it fluctuate [sic] her blood pressure. She stayed with headaches. She kind of got quiet and shut down. She didn't want to talk about anything.

         Mrs. Cormier further explained that Mrs. Vincent "would get headaches and get so stressed out that she would vomit."

         Turning to the award of $35,000.00 to Mr. Vincent, the transcript indicates that he too testified regarding his and the family's initial efforts in cleaning the sewage as well as his after-hours work to address the ongoing problems at the home. Mr. Vincent explained that, in the days following the occurrence, he "[c]ontinued with cleaning trying to get as much of this liquid up … once you walk across this wood floor it would seep up between the cracks and … create little puddles and you'd have to mop that up or suck it up with … the shop-vac I had." Mr. Vincent noted that the liquid worked its way underneath the walls and, in the kitchen, underneath the cabinets. He explained that the family initially stayed in the home at night, but that it "reeked" or had a "raw sewage smell[.]" He stated that they "opened up the windows in the house to try to relieve as much of the smell as we could." As explained above, the six-member family thereafter moved into two adjoining rooms at an area hotel. Describing himself as a "creature of habit[,]" Mr. Vincent explained that:

Well, without saying anything bad about the hotel, the hotel is a great hotel, but it's not like living at home. It was terrible. You couldn't sleep, there was a lot of noise up and down the hallways at night, you know, contractors in there, you didn't sleep as well, it's uncomfortable,[5] it's not like being in your own bed. You think of staying in a hotel, you're going on ...

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