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 Laura E. Carlisle Kathlyn G.
Perez Baker Donelson Bearman Caldwell & Berkowitz, P.C.
COUNSEL FOR DEFENDANT/APPELLANT: Union Pacific Railroad
J. Levine Paul LeBlanc John B. Shortess Phelps Dunbar, LLP
COUNSEL FOR DEFENDANT/APPELLANT: Union Pacific Railroad
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:
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, Catherine Carriere, damages in the amount of $6,
840.00. For the following reasons, we find that the trial
court abused its discretion in awarding Ms. Carriere $5,
500.00 for her evacuation and inconvenience damages and we
hereby amend this award to $1, 000.00. We affirm the $1,
200.00 award for mental anguish and the $140.00 award for
clothes, for a total damage award of $2, 340.00.
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 some 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.
Carriere 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.
Carriere presenting her case on June 27, 2017. On October 11,
2017, the Special Master issued his Report and
Recommendation, which found that Ms. Carriere "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. Carriere $5, 500.00 for
"Evacuation/Inconvenience," $1, 200.00 for
"Mental Anguish," and $140.00 for "Other
(Clothes)." The Special Master's Report and
Recommendation summarized Ms. Carriere's testimony, as
follows (citations to the record omitted):
At the time of the derailment, Catherine Carriere was living
with her husband and two children at 104 Pine Loop. She did
not hear or see the derailment. She found out about the
derailment when a police officer came to her door and told
her she had to evacuate right away. She did not suffer any
physical injuries as a result of the derailment. While they
were evacuated, the plaintiff and her two children ultimately
went to Evangeline Downs to stay until Tuesday when they
returned to their house. The plaintiff and her family were
evacuated for a total of three days.
On the Tuesday morning after the derailment, the plaintiff
drove her daughter to Shreveport for an MRI and then found
out that her daughter had to have her fourth surgery for
brain tumors. She testified that when she was on her way back
from Shreveport on Tuesday morning, the hotel at Evangeline
Downs called her three times and told her that they had to
get their stuff out of the hotel. The plaintiff testified
that this was frustrating and nerve-racking. She testified
that she had to buy clothes as a result of the evacuation
because she was told it was only supposed to be an overnight
evacuation and the clothes cost about $140.00.
She testified that when she got back home, she witnessed the
clean-up process and this made her worried about her health
and her children's health. She testified that she was
inconvenienced by the road closures after the derailment. She
testified that she still worries as a result of the
derailment. She testified that she was dealing with a lot of
other stuff during the time of the evacuation and the
evacuation compounded it and made it worse.
Ms. Carriere testified that Union Pacific paid for their
hotel room and food while they were evacuated. She testified
that she did not seek any medical treatment as a result of
the derailment, nor did her children or husband. She
testified that for about two weeks after the derailment, her
family had to boil water to bathe in it because it was
discolored. She testified at trial that her fear did not go
away when she returned home after the evacuation order was
lifted; however, she testified during her deposition that her
fear lasted only until she got back home.
She testified that she did not lose any wages as a result of
the derailment. Ms. Carriere testified that there is no
evidence that she was exposed to any chemicals. When
questioned on cross-examination about any inconvenience the
derailment caused her, Ms. Carriere testified as follows:
Q: As a matter of fact, in your deposition, you said that
this derailment had no other effect on your daily life, other
than the hotel maybe throwing your clothes away, is that
Q: So in terms of inconvenience, and he said were you
inconvenienced as a result of it, in essence, Ms. Carriere,
this is a derailment, nobody wants a derailment to happen,
but it didn't affect you and your family, thank God. Am I
correct with that?
She testified that when she went back home after the
evacuation, a DEQ representative tested the air quality of
her home and everything was safe. She testified that the
derailment caused her inconvenience and that it led to an
increase in her emotional distress.
October 23, 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. Carriere and
against Union Pacific. Notably, the trial court awarded Ms.
Carriere a lump sum in the amount of $6,
Pacific now appeals this judgment, alleging the following
five assignments of error: (1) the trial court erred in
awarding damages to Ms. Carriere for mental anguish, absent
any accompanying physical injury or property damage; (2) the
trial court erred in awarding damages to Ms. Carriere for
mental anguish concerning injury to other persons, when the
conditions of La.Civ.Code art. 2315.6 were not satisfied; (3)
the trial court erred in awarding damages to Ms. Carriere on
the basis of negligent infliction of inconvenience, absent
any accompanying physical injury or property damage; (4) the
trial court abused its discretion by awarding $5, 500.00 for
inconvenience; and (5) the trial court erred in awarding
$140.00 for out-of-pocket expenses, absent any accompanying
documentary support or corroboration for such expenses.
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 finding and that ...