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Johnson v. Motiva Enterprises, LLC

Court of Appeals of Louisiana, Fourth Circuit

February 6, 2019

DONALD JOHNSON
v.
MOTIVA ENTERPRISES, LLC, ET AL.

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2003-05123 C\W 2003-06746, DIVISION "L-6" Honorable Kern A. Reese, Judge

          Patrick G. Kehoe, Jr. PATRICK G. KEHOE, JR., APLC Nat G. Kiefer, Jr. KIEFER & KIEFER COUNSEL FOR PLAINTIFF/APPELLEE

          Michael P. Cash Wade Howard LISKOW & LEWIS Kelly B. Becker Kathryn Z. Gonski Lauren R. Bridges LISKOW & LEWIS COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Chief Judge James F. McKay, III, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins

          SANDRA CABRINA JENKINS JUDGE

         This appeal arises from a 2003 lawsuit brought by two former employees of the Camellia Grill restaurant in New Orleans, who alleged that they suffered adverse health effects from exposure to gasoline vapors originating from a nearby Shell gasoline station. Defendant Motiva Enterprises, LLC ("Motiva"), appeals the trial court's December 7, 2017 judgment, rendered after a five-day bench trial, awarding $230, 592.00 in general and special damages to plaintiff Donald Johnson, and $39, 962.00 in general and special damages to plaintiff Stephen Gopaul (collectively, "Plaintiffs"). For the reasons that follow, we affirm the trial court's judgment.

         FACTUAL AND PROCEDURAL BACKGROUND

         On April 4, 2003, Mr. Johnson, who was a waiter at the Camellia Grill, and numerous other plaintiffs filed suit against Motiva; Equilon Enterprises, LLC; Riverbend Shell, Inc.; and Diane Williams.[1] The Petition alleged that underground gasoline storage tanks at the Shell station near the Camellia Grill released massive quantities of gasoline into the soil under the tank beds, which saturated the ground soil, and penetrated through the sanitary sewer system, grease traps, and drain lines, thereby exposing Mr. Johnson and others to concentrated levels of gasoline vapors. On November 7, 2003, Stephen Gopaul, who was a former manager at the Camellia Grill, was added as a plaintiff. Plaintiffs asserted theories of strict liability and negligence, and alleged that their constant exposure to the gasoline vapors caused various ailments, such as severe and permanent headaches, dizziness, nausea, sleep disorders, sexual dysfunction, pulmonary dysfunction, and cognitive dysfunction, in addition to general anxiety, mental anguish, and fear of cancer.

         On November 7, 2016, Motiva filed a Motion for Summary Judgment, seeking a dismissal of Mr. Gopaul's claims on the grounds of prescription. After the bench trial, Motiva filed a Motion for Involuntary Dismissal of Stephen Gopaul on the grounds of prescription.[2]

         The court conducted a five-day bench trial on February 11-15, 2017. On December 7, 2017, the trial court rendered a judgment finding Motiva 100% at fault, as the leaking gasoline tanks were owned and/or in the physical custody and control of Motiva, and presented an unreasonable risk of harm under La. C.C. arts. 2315 and 2317. The trial court found that Mr. Johnson had been exposed to gasoline vapors for three and one-half years, and Mr. Gopaul had been exposed for 10 months. The trial court awarded Mr. Johnson $200, 000.00 in general damages, including physical and mental pain and suffering, and fear of cancer; $5, 592.00 in past medical specials; and $25, 000.00 in future medical specials. The trial court awarded Mr. Gopaul $20, 000.00 in general damages, including physical and mental pain and suffering, and fear of cancer; $9, 962.00 in past medical specials; and $10, 000.00 in future medical specials.

         Motiva timely appealed.

         DISCUSSION

         Motiva lists two assignments of error.

         First, Motiva contends that the trial court erred by: (1) failing to find Mr. Gopaul's claims prescribed when he was aware of his claimed injuries and their alleged cause more than a year prior to filing suit; and (2) awarding Mr. Gopaul damages when his exposure preceded the earliest date that Motiva could be held liable for damages.

         Second, Motiva argues that the trial court's general damages awards to Mr. Johnson and Mr. Gopaul exceed the amount that a reasonable trier of fact could award for the minor and transient health effects experienced by Plaintiffs.

         Assignment of Error No. 1: Prescription/Knowledge of Defects

         Motiva asserts that, when Mr. Gopaul left his job as manager of the Camellia Grill in July 2002, he had actual and constructive knowledge of his legal claims, yet he did not join this lawsuit until November 2003, more than one year later. Mr. Gopaul contends that under the continuing tort doctrine, the date for commencing the accrual of prescription is the date of Mr. Gopaul's last wrongful exposure to the gasoline vapors. Mr. Gopaul argues that, after leaving the restaurant in July 2002, he returned in December 2002 to do tax work for the owner of the restaurant, and finally left in March 2003, less than one year before filing suit.

         "Although typically asserted through the procedural vehicle of the peremptory exception, the defense of prescription may also be raised by motion for summary judgment." Hogg v. Chevron USA, Inc., 09-2632, p. 6 (La. 7/6/10), 45 So.3d 991, 997. "When prescription is raised by motion for summary judgment, review is de novo, using the same criteria ...


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