JOSHUA L. ADAMS, ET AL
UNION PACIFIC RAILROAD COMPANY, ET AL.
FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST.
LANDRY, NO. 14-C-3165-B HONORABLE A. GERARD CASWELL, DISTRICT
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
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
A. Pecoraro Grant F. Freeman Anna M. Grand COUNSEL FOR
DEFENDANT/APPELLANT: Union Pacific Railroad Company
Blayne Honeycutt Colt J. Fore Hannah Honeycutt Calandro
Fayard & Honeycutt COUNSEL FOR PLAINTIFF/APPELLEE: Elaine
composed of D. Kent Savoie, Candyce G. Perret, and Jonathan
W. Perry, Judges.
CANDYCE G. PERRET JUDGE
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.
AND PROCEDURAL HISTORY:
August 4, 2013, twenty-six railcars 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.
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.
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." 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
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.
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.
case, the trial judge sat as the trier of fact. 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.
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.
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 ...