Fright Night: Recovering Emotional Distress Damages Absent Accompanying Physical Consequences
By Paul V. Esposito
There’s a famous phrase about “things that go bump in the night.” It’s part of an old Scottish or Cornish prayer seeking protection from “ghoulies and ghoosties and long-legged beasties” roaming a house. But whether we believe in such creatures, we can’t help feeling at least a little bit unnerved by those home-alone, late-night sounds.
Of course, not all late-night sounds come from inside our four walls. They, too, can be unsettling, sometimes significantly so. They’ve been known to chase people from their homes, and even make them question whether to return. It can be an emotional experience.
The legal question is whether, absent accompanying physical consequences, it is a compensable experience. The issue pits the desire to award full compensation against the fear of awarding money for those minor stresses part of daily living. In a recent split decision, the Louisiana Supreme Court provides its answer. Spencer v. Valero Refin. Meraux, LLC, 2023 La. LEXIS 202.
Shortly after midnight, an explosion occurred at Valero’s oil refinery. A fire burned for about nine hours. No significant chemical release resulted. But the explosion alarmed nearby residents, a few of whom filed suit.
Brittany Spencer and her daughter Chloe were awakened by a loud sound that shook Brittany’s bedroom window. Brittany saw a large flame coming from the refinery, about 2,000 feet away. They temporarily left home after the fire. Upon returning, they remained anxious and concerned about their safety and the potential exposure to chemicals.
Kevreion Raines was home tending to her sick mother when she heard what sounded like an exploding bomb. It shook the house. She was scared at seeing a big gray smoke cloud but did not smell smoke or unusual odor in the house. She believed the explosion caused house cracks. She was able to sleep normally after a couple days but was fearful and concerned about the air quality and her safety.
Rosemary Gagliano was sleeping at her mother’s house when a boom woke her up and shook the house. She was very scared when she saw a glow that lit up the house through the blinds. She and her mother went to her sister’s home. Rosemary sat outside to early morning, nervous and shaking. Though the experience did not affect her normal lifestyle, Rosemary was leery about a recurrence.
All filed claims for emotional distress, none of which included claims for physical injury, property damage, or financial losses. Plaintiffs received three-and-four figure awards that survived through the Court of Appeal. Then the Louisiana Supreme Court, consolidating the cases, decided to take a closer look.
Valero argued that if a defendant’s negligent conduct only caused mental distress without physical damage or injury, recovery should be denied. An exception would exist if a defendant: (1) owed a special, direct duty to protect a plaintiff’s emotional well-being, (2) outrageously breached that duty, and (3) caused severe, debilitating emotional distress. For the Court, the proposed standard was a non-starter, far too strict to acceptably deal with emotional distress issues. But reasonable limits were needed to prevent a flood of spurious claims.
In fashioning an appropriate test, the Court recognized that under Louisiana’s civil code, “[e]very act whatever of man that causes damages to another obliges him by whose fault it happened to repair it.” Existing case law did not preclude recovery for emotion distress absent physical damage/injury. The Court ruled that the traditional negligence analysis applies, but with an important qualifier. To eliminate trivial claims, there must be a special likelihood of “genuine and serious mental distress,” a test that must be “stringently applied” where damages are inherently speculative. Medical treatment and expert testimony are unnecessary, but a mental disturbance must be “serious.” Generalized fear or mere inconvenience is not enough. What constitutes a “serious” disturbance is for the factfinder.
As for the intentional infliction of emotional distress absent physical damage/injury, the Court defined what is not required. A defendant need not owe a special, direct duty to a plaintiff, nor must a defendant’s conduct be outrageous. To prove negligence claims, damages need not be reasonably foreseeable nor severe and debilitating. Small amounts are recoverable.
The Court ruled that plaintiffs met all elements of the test but one. Lacking physical damage/injury, plaintiff could not show that their distress was “serious.” The Court reversed their judgments.
Learning Point: Spencer’s importance lies beyond its analysis of Louisiana law. Spencer is another patch in the patchwork of decisions nationwide on emotional distress damages. Just as Spencer is a split decision, state courts are split on the availability of emotional distress damages absent adverse physical consequences. The law on the subject is likely better developed in some states than in others. But in whatever state, the key is research. Emotional distress damages are playing an expanded role in tort litigation.