FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2003-05123 C\W
2003-06746, DIVISION "L-6" Honorable Kern A. Reese,
Patrick G. Kehoe, Jr. PATRICK G. KEHOE, JR., APLC Nat G.
Kiefer, Jr. KIEFER & KIEFER COUNSEL FOR
Michael P. Cash Wade Howard LISKOW & LEWIS Kelly B.
Becker Kathryn Z. Gonski Lauren R. Bridges LISKOW & LEWIS
COUNSEL FOR DEFENDANT/APPELLANT
composed of Chief Judge James F. McKay, III, Judge Sandra
Cabrina Jenkins, Judge Dale N. Atkins
CABRINA JENKINS JUDGE
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.
AND PROCEDURAL BACKGROUND
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. 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.
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
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.
lists two assignments of error.
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.
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.
of Error No. 1: Prescription/Knowledge of Defects
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.
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