No Harm No Foul: No Recovery to Plaintiffs Who Claimed Negligent Infliction of Emotional Distress Absent Physical Injury

Spencer v. Valero Ref. Meraux, L.L.C., 2022-469 (La. 01/27/23), 2023 La. LEXIS 202*, 2023 WL 533268 (La. 2023).

Author: Bridget Wallis

            The Supreme Court of Louisiana decided on January 27, 2023 to reverse Plaintiffs’ damage awards for negligent infliction of emotional distress when the Plaintiffs suffered no physical damage or injuries.

             Multiple St. Bernard residents felt vibrations, heard a loud explosion, and saw a bright flame followed by smoke in the sky after a 2020 Valero refinery explosion. Plaintiffs alleged suffering from general concern, uncertainty, and anxiety following the incident. Subsequently, four filed suit for negligent infliction of emotional distress—despite suffering no harm to Plaintiffs’ persons or homes nor were they exposed to any dangerous chemicals.

            All Plaintiffs obtained a district court judgment in their favor and received damage awards in the amounts of $1,000 to $2,500. In each case, Valero applied for supervisory review to the Fourth Circuit Court of Appeal which affirmed the awards. Valero sought writs to the Louisiana Supreme Court which granted certiorari to address the core issue and consolidated the claims of the four Plaintiffs.

            The issue before Louisiana’s Supreme Court was whether the lower courts properly awarded damages to plaintiffs for negligent infliction of emotional distress when the plaintiffs suffered no physical damage or injury. Using the manifest error or clearly wrong standard of review, the Supreme Court of Louisiana held the lower courts erred in awarding damages.

            In the beginning of its opinion, Judge Genovese rejected Valero’s “reformulation” of jurisprudence governing negligent infliction of emotional distress. Next, the Louisiana Supreme Court closely examined numerous decisions which decided whether the Valero Plaintiffs were entitled to recover for negligent infliction of emotional distress absent a physical injury. The referenced cases could be “readily distinguish[ed]” from Valero.” However, they were similar in the fact that in each case the Plaintiffs sued for emotional distress despite suffering no physical harm. The main case analyzed in its opinion was Moresi v. State, 567 So.2d 1081 (Sep. 6, 1990).

            Moresi’s stringent standard for negligent infliction of emotional distress absent physical damage/injury is: a plaintiff must prove the “especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious.”

            In Valero’s analysis, the court applied a traditional negligence analysis: Valero owed a duty to the surrounding community and it breached that duty. Valero’s breach was a cause-in-fact of the plaintiffs’ generalized fear and anxiety. However, Plaintiffs could not prove the damages element in the negligent infliction of emotional distress absent physical damage/injury context.

            Next, Valero proposed the relevant standard  derived from Moresi to find that the Plaintiffs did not submit sufficient evidence that their mental distress was serious. As a reminder, none of the plaintiffs sought medical treatment. Some even returned to a normal sleep pattern in the few days that followed the incident. There was no factual basis for the lower courts to have awarded damages—the plaintiff’s harm simply was not that serious.

            Then, Plaintiffs’ asserted that the code nuisance doctrine should apply. They attempted to rely on Louisiana Civil Code Articles 667-669 and Inabnett v. Exxon Corp., 642 So.2d 1243 (Sep. 6, 1994) to set forth the standard of “inconvenience.” Plaintiffs could not prove Valero “interfered substantially” with their enjoyment of their property. Also, a suffering of mere inconvenience is insufficient. Plus, Plaintiffs could not show they suffered damages—just as they could not show damages in their emotional distress claim. Therefore, the Supreme Court of Louisiana reversed the lower courts’ awards of emotional distress damages.

             Finally, Chief Justice Weimer, Justice Crain, Justice McCallum, and Justice Griffin offered their concurrences. They proposed that the court focus on legislation and the civilian approach. Some discussed the applicability of the bystander recovery theory outlined in Louisiana Civil Code Article 2315.6. Others emphasized the importance of looking at this case through the traditional negligence duty-risk lens to find damages unavailable.

            Overall, this case emphasizes the Courts’ goal to prevent spurious claims. As noted in this decision, “not every occasion that causes some harm yields concomitant liability and compensatory damages.”