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Defendant's Attorney: Raymond P. Ward
Jacque R. Touzet
New Orleans, LA - Personal Injury lawyer represented defendant with seeking review of the district court’s judgment in favor of plaintiff/respondent.
“Appellate courts apply the ‘manifest error’ or ‘clearly wrong’ standard
when reviewing a trial court’s findings of fact. This standard of review requires
the appellate court to apply a two-part test: (1) the appellate court must find from
the record that a reasonable factual basis does not exist for the finding of the trial
court, and (2) the appellate court must further determine that the record establishes
the finding is clearly wrong (manifestly erroneous).” Greenblatt v. Sewerage &
Water Bd., 2019-0694, p. 3 (La.App. 4 Cir. 12/20/19), 287 So.3d 763, 766 (internal
Valero asserts that the district court erred in awarding damages to Ms.
Spencer and Chloe for emotional distress unaccompanied by any physical injury.
Louisiana jurisprudence establishes that even without accompanying physical
injury, a claim for negligent infliction of emotional distress is viable. Crockett v.
Cardona, 1997-2346, p. 6 (La.App. 4 Cir. 5/20/98), 713 So.2d 802, 805.
Establishing a claim requires that a plaintiff first satisfy the requirements of La.
C.C. art. 2315, general negligence. Id., p. 3, 713 So.2d at 804. A plaintiff must
prove the following: (1) the defendant had a duty to conform his or her conduct to
a specific standard of care; (2) the defendant failed to conform his or her conduct
to the appropriate standard; (3) the defendant’s substandard conduct was a causein-fact of the plaintiff’s injuries; (4) the defendant’s substandard conduct was a
legal cause of the plaintiff’s injuries; and (5) actual damages. Id.; see also
Simmons v. State, 2018-0174, p. 5 (La.App. 4 Cir. 8/29/18), 255 So.3d 701, 704.
Once general negligence is established, to recover for negligent infliction of
emotional distress without physical injury a plaintiff must show an “especial
likelihood of genuine and serious mental distress, arising from the [plaintiff’s]
special circumstances. . .”. Lester v. Exxon Mobil Corp., 2012-1709, p. 8 (La.App.
4 Cir. 6/26/13), 120 So.3d 767, 774.
We now turn our analysis to the sole issue on review, whether the district
court erred in finding Valero negligent and awarding damages for negligent
infliction of emotional distress to Ms. Spencer and Chloe.
We first consider whether the district court erred in finding Ms. Spencer
satisfied her burden under La. C.C. art. 2315. Specifically, the question is whether
Valero had a duty to conform its conduct to a specific standard of care and failed to
do so, causing injury to Ms. Spencer and Chloe.
The record includes Valero’s Unauthorized Discharge Notification Report
and the Louisiana Department of Environmental Quality (“DEQ”) Incident Report.
The Valero report indicates that the Meraux Refinery experienced a loss of
containment in the Hydrocracker Unit, resulting in a vapor release and ignition,
followed by a fire. The vessel relieved some of the elevated pressure to a flare
through a Pressure Safety Valve (“PSV”). Although the elevated pressure
subsided, the PSV did not fully “reseat” in its former position. Valero developed a
plan which it believed would allow the PSV to “reseat” by having the operators
briefly close an inlet valve. However, the operators sent to accomplish this plan
changed it in the field due to concerns of access to the inlet valve. Rather than
closing an inlet valve, the operators closed an outlet valve, which immediately
failed, causing the April 10, 2020 explosion, fire, and chemical release. Valero
admitted in its report that changing the approved plan resulted in the over-
pressurization of the hydrocracker unit and the release of chemicals, which quickly
After the incident, Valero notified the DEQ, which investigated and
prepared its own report. The DEQ report states:
The facility [Valero] failed to use and diligently maintain in proper
working order control equipment to adequately prevent emissions in
violation of LAC 33.III.905(A).4
Specifically, the facility had a
preventable, unauthorized release that exceeded the Reportable
Quantity and permit limits of Sulfur Dioxide (SO2) 5
and permit limits
of Hydrogen Sulfide (H2S), because the operators failed to follow
Process Safety Management protocols when they altered the plan to
reseat the PSV.
The DEQ concluded that the operators’ alteration of the plan to “reseat” the valve
without requesting additional review and approval “resulted in the failure of the
outlet valve, the over pressurization of the Unit and subsequent fire.”
After a review of the evidence, the district court found Valero negligent,
finding that it breached its duty to Ms. Spencer and Chloe, who lived in close
proximity to the refinery. The court also determined Valero’s negligence was a
direct cause of their emotional distress. Our review of the evidence supports the
district court’s findings. Specifically, we find Valero had a duty to control the
overall levels of air contaminants entering the surrounding area by conforming its
conduct to a specific standard of care under LAC 33.III.905(A). Valero did not
conform its conduct to this standard. The DEQ report and Valero’s report establish
that Valero’s failure caused the over-pressurization of the hydrocracker unit,
LAC 33.III.905(A) of the Environmental Regulatory Code states that “[e]xcept as provided in
Subsection B of this Section, to aid in controlling the overall levels of air contaminants into the
atmosphere, air pollution control facilities should be installed wherever practically,
economically, and technologically feasible. When facilities have been installed on a property,
they shall be used and diligently maintained in proper working order whenever any emissions are
being made which can be controlled by the facilities, even though the ambient air quality
standards in affected areas are not exceeded.”
5 Valero’s report identified SO2 as an “extremely hazardous substance.”
chemical release and subsequent fire. As such, Valero’s negligence was both the
cause-in-fact and the legal cause of Ms. Spencer’s and Chloe’s emotional distress.
Thus, we conclude that the district court did not err in finding Ms. Spencer
satisfied her burden under La. C.C. art. 2315.
EMOTIONAL DISTRESS DAMAGES ABSENT PHYSICAL INJURY
Recovering damages for negligent infliction of emotional distress absent
physical injury requires a plaintiff to establish a likelihood of genuine and serious
emotional distress arising from the plaintiff’s particular circumstances. The district
court found that Ms. Spencer satisfied this burden.
The district court, in its reasons for judgment, relied upon Ms. Spencer’s
stipulated testimony that described the explosion at the refinery, the events
following the explosion, and the facts stipulated by the parties. The district court
noted that the explosion occurred 2,000 feet away from Ms. Spencer’s townhouse
apartment and that a huge fire ball or flame appeared above the refinery, lighting
up the night sky. The explosion also caused a shock wave that shook the
apartment and windows and woke Ms. Spencer and Chloe in the middle of the
night. Further, the court described video evidence of emergency vehicles entering
the refinery and neighbors exiting their homes. Eight-year-old Chloe was
frightened and anxious as a result. The district court noted that Ms. Spencer, who
was four months pregnant, was afraid for her family’s safety and specifically about
whether harmful chemicals were released into the air. Her concern led to the
family’s departure from their apartment between April 10 and 13, 2020, and after
their return, Ms. Spencer refused to allow her children to play outside. Finally, the
district court evaluated Ms. Spencer’s claim of continuing anxiety. Although she
and her family moved out of St. Bernard Parish in June 2020, Ms. Spencer
remained anxious about possible adverse health effects from the explosion. The
district court found that these circumstances caused compensable emotional
distress to Ms. Spencer and, more minimally, to Chloe.
Our review of the stipulated testimony and evidence establishes a reasonable
factual basis to support the trial court’s finding. The parties offered into evidence
photographs and thirty-two brief videos of the fire and emergency vehicle
response, which support the trial court’s assessment that the explosion was a “huge
fire ball or flame above the refinery” which “lit up the night sky.” The evidence
contains a video with a written caption comparing the explosion to an earthquake,
as well as the DEQ report stating that the fire was present to public view for almost
twelve hours. Although Valero’s incident report indicates that it monitored SO2
levels in the air of the neighborhoods surrounding the refinery and found no
significant results, we find that provided little to no solace to residents, as Valero
did not contemporaneously communicate the results to the public.
Proximity to the event, witnessing injury to others, and contemporaneous
reports from reliable sources that danger is real are indicia of the reliability of
claims of emotional distress. Doerr v. Mobil Oil Corp., 2004-1789, p. 9 (La.App.
4 Cir. 6/14/06), 935 So.2d 231, 237. Legitimate concern about one’s health is
compensable. Id., p. 10, 935 So.2d at 238. Ms. Spencer and Chloe were in close
proximity to the area of the refinery where the explosion occurred, a distance of
less than 2,000 feet. Additionally, although they did not directly witness injury to
others, they observed emergency vehicles rushing to the scene of the explosion,
indicating to a reasonable person that both injury and real danger were present.6
Finally, although Valero tested the air in the community and found it contained no
dangerous chemical levels, Valero failed to contemporaneously communicate this
information to the public. Ms. Spencer’s concern about negative impacts on her
family’s health, including that of her unborn child, from the chemical release is
genuine, serious and reasonable under these circumstances.
Considering the totality of the evidence, we find the district court’s finding
that Ms. Spencer and Chloe suffered genuine and serious emotional distress
resulting from the Valero refinery event of April 10, 2020 reasonable. Louisiana
courts have allowed recovery for negligent infliction of emotional distress under
such factual scenarios. See Crockett, 1997-2346 at p. 6, 713 So.2d at 805. Thus,
the district court was not clearly wrong in finding Ms. Spencer and Chloe entitled
to damages for negligent infliction of emotional distress absent physical injuries.
Outcome: Based on the foregoing, we grant Valero’s writ application and deny the