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Adams v. Union Pacific Railroad Co.

Court of Appeals of Louisiana, Third Circuit

May 29, 2019



          Kenneth Warren DeJean Attorney at Law, SPECIAL MASTER William H. Howard, III Alissa A. Allison Kathlyn G. Perez Laura E. Carlisle Baker, Donelson, Bearman, Caldwell, & Berkowitz, P.C. COUNSEL FOR DEFENDANT/APPELLANT: Union Pacific Railroad Company

          H. Alston Johnson, III Steven J. Levine Paul LeBlanc John B. Shortess Phelps Dunbar, LLP COUNSEL FOR DEFENDANT/APPELLANT: Union Pacific Railroad Company

          Antonio M. Clayton Clayton, Frugé & Ward COUNSEL FOR DEFENDANT/APPELLANT: Union Pacific Railroad Company

          Elena A. Pecoraro Grant F. Freeman Anna M. Grand COUNSEL FOR DEFENDANT/APPELLANT: Union Pacific Railroad Company

          D. Blayne Honeycutt Colt J. Fore Hannah Honeycutt Calandro Fayard & Honeycutt COUNSEL FOR PLAINTIFF/APPELLEE: Elaine Carrier

          Court composed of D. Kent Savoie, Candyce G. Perret, and Jonathan W. Perry, Judges.


         In this train derailment case, defendant, Union Pacific Railroad Company (hereinafter, referred to as "Union Pacific"), appeals a trial court judgment that awarded plaintiff, Elaine Carrier, damages in the amount of $3, 895.00. For the following reasons, we find that the trial court abused its discretion in awarding Ms. Carrier $3, 250.00 for her evacuation and inconvenience damages and we hereby amend this award to $1, 000.00. We affirm the $500.00 award for mental anguish and the $145.00 award for lost wages, for a total damage award of $1, 645.00.


         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 three 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. Carrier, individually and on behalf of her minor son, Eric Carrier, 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]

         Union Pacific presented its case on June 27-28, 2017, with Ms. Carrier presenting her case on August 14, 2017. On October 20, 2017, the Special Master issued his Report and Recommendation, which found that Ms. Carrier "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. Carrier $3, 250.00 for "Evacuation/Inconvenience," $500.00 for "Mental Anguish," and $145.00 for "Lost Wages."[3] The Special Master's Report and Recommendation summarized Ms. Carrier's testimony, as follows (citations to the record omitted):

At the time of the derailment, Elaine Carrier was living at 227 Perry Drive, Lawtell, Louisiana with her stepmother and her two-year-old son, Eric Carrier. She estimates that she lives "about half a mile" from the derailment. On the day of the derailment, Elaine Carrier was driving home from her job in Opelousas when she saw a big cloud of dust. She was informed by the St. Landry Parish Sheriff's Department that a train had derailed and that she had to take a detour home. While she was taking the detour, she saw the derailed train cars. She and her son, Eric, then went to her friend's house, who lives by Miller's Bar-B-Que on Highway 190, and they watched the derailment until they were told to leave by a police officer. She learned of the evacuation while watching the news. She testified that while watching the news, she learned that authorities were asking every resident to evacuate. She then immediately evacuated with her son, Eric, to Evangeline Downs for two days (Sunday to Tuesday). She testified that before she evacuated, she was able to grab a change of clothes because she thought she would only be gone for one night. She testified that it was inconvenient trying to provide for her two-year old son while they were evacuated.

On the day of the derailment, Ms. Carrier testified that it smelled like "a whole bunch of bleach chemicals." She testified she saw the cleaning crew after the derailment and that they were there for two to three weeks. She testified that seeing the derailed cars made her fearful but she does not have any fear today.

At the time of the derailment, Elaine Carrier was working for Active Adult Daycare Center doing home health and making $7.25 an hour. She testified that while she was evacuated, she missed about 16-20 hours of work.

On cross-examination, Ms. Carrier testified that she chose to evacuate based on what she saw on the news and that a police officer never came to her house and ordered her to evacuate. She testified that Union Pacific paid for her hotel room at Evangeline Downs. She testified that she has no independent, specific records regarding the actual hours from work she missed during the evacuation. She did not seek any sort of medical treatment, counseling or therapy. She did not have any out-of-pocket expenses. Her son, Eric, did not treat with a doctor, nor she did she have any out-of-pocket expenses for him. She testified that her son, Eric, does not have any physical complaints stemming from the derailment. When she returned home, a representative of the DEQ tested her house and nothing was detected.

On November 6, 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 written judgment in favor of Ms. Carrier and against Union Pacific. Notably, the trial court awarded Ms. Carrier a lump sum in the amount of $3, 895.00.[4]

         Union Pacific now appeals this judgment, alleging the following four assignments of error: (1) the trial court erred in awarding damages to Ms. Carrier for mental anguish, absent any accompanying physical injury or property damage; (2) the trial court erred in awarding damages to Ms. Carrier on the basis of negligent infliction of inconvenience, absent any accompanying physical injury or property damage; (3) the trial court abused its discretion by awarding $3, 250.00 for inconvenience; and (4) the trial court erred in awarding $145.00 for lost wages.


         In this case, the trial judge sat as the trier of fact.[5] 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 findings and that the 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 OverseasCorp., 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 ...

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