c/w 2022-cc-00539 c/w 2022-cc-00730

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #005
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 27th day of January, 2023 are as follows:
BY Genovese, J.:
2022-CC-00469
c/w
2022-CC-00539
c/w
2022-CC-00730
BRITTANY LYNN SPENCER VS. VALERO REFINING MERAUX, LLC
(Parish of St. Bernard)
REVERSED. SEE OPINION.
Weimer, C.J., concurs and assigns reasons.
Hughes, J., dissents and would affirm the ruling of the lower courts.
Crain, J., concurs and assigns reasons.
McCallum, J., concurs and assigns reasons.
Griffin, J., additionally concurs and assigns reasons.

SUPREME COURT OF LOUISIANA

No. 2022-CC-00469

BRITTANY LYNN SPENCER VS. VALERO REFINING MERAUX, L.L.C.

C/W

No. 2022-CC-00539

KEVREION RAINES VS. VALERO REFINING MERAUX, L.L.C.

C/W

No. 2022-CC-00730

ROSEMARY GAGLIANO VS. VALERO REFINING MERAUX, L.L.C.

On Supervisory Writ to the 34th Judicial District Court, Parish of St. Bernard

GENOVESE, J.
This Court granted certiorari in the above captioned matters arising from
lawsuits brought following an incident at Valero Refining-Meraux, LLC (“Valero”)
in order to consider whether the lower courts erred in awarding Plaintiffs damages
for negligent infliction of emotional distress in the absence of physical
damage/injury. The matters presently before the Court involve the claims of four
Plaintiffs: Brittany Spencer, Chloe LaFrance, Kevreion Raines, and Rosemary
Gagliano, each of which are discussed below. This Court consolidated the matters
for briefing and argument. For the reasons that follow, we reverse.
FACTS AND PROCEDURAL HISTORY
O n April 10, 2020 , at a pproximately 12:45 a.m. , an accident, fire, and
explosion (“the explosion”) occurred in the hydrocracker unit at the Valero refinery
in Meraux, Louisiana.
1 The fire was extinguished at approximately 10:00 a.m. on

1 Valero’s Unauthorized Discharge Notification Report states:

At approximately 11:40 PM on April 9th, a brief, but intense rainstorm passed over
the refinery. Shortly afterwards, a vessel in the Hydrocracker Unit began relieving
to the North Flare via a Pressure Safety Valve (PSV). It was determined that the
elevated pressure had subsided, but the PSV ha d not fully reseated. A plan was
developed to briefly close an inlet valve at the PSV to reseat the PSV. This plan

2

April 11, 2020, and the all-clear was given. No significant levels of chemicals were
detected as a result of the explosion. Multiple residents in the vicinity of the refinery
filed suit for the negligent infliction of emotional distress.
Brittany Spencer and Chloe LaFrance
Plaintiff, Brittany Spencer, and her two minor children, Chloe LaFrance and
Lanny LaFrance III, were at home sleeping when the explosion occurred. Their
residence was approximately 2,000 feet from the epicenter of the explosion. Ms.
Spencer and Chloe were unexpectedly awakened by a loud sound of unknown origin
and a significant shockwave and vibration of unknown origin. Lanny was not
awakened. The sound resembled the shattering of a window and/or gun shot. The
sound and/or shockwave shook Ms. Spencer’s bedroom window. Ms. Spencer went
outside and observed a large flame of the fire coming from the refinery, and the sky
was lit up. Almost immediately after the explosion, Ms. Spencer began to hear
police vehicles, fire trucks, and ambulances as part of the emergency response that
lasted for several hours. Ms. Spencer went back inside, and she and Chloe went
back to sleep.
On the morning of the explosion, Ms. Spencer and her children left their
residence out of an abundance of caution and did not return until Monday, April 13,
2020. Ms. Spencer eventually returned to her normal sleep schedule, albeit with
some trouble. She did not allow her children to play outside due to concerns for

was approved by Operations management and documented through Meraux’s
Process Safety Management program.

However, due to concerns regarding access and egress at the targeted valve, several
operators changed the plan in the field, instead opting for the closure of the outlet
valve of the PSV. It was not recognized that additional review and approval by the
Operations management was necessary to authorize this change. A review of the
new plan would have revealed that the closure of the outlet valve only would result
in it being exposed to pressure in excess of its design. When the outlet valve was
closed, it immediately failed, resulting in a release of a pressured
hydrogen/hydrocarbon mix which quickly ignited.

3

their safety. Thereafter, Ms. Spencer and her children began staying at their
residence less and later moved away from the refinery in June of 2020.
As a result of the explosion, Ms. Spencer was anxious and concerned about
her physical safety and that of her children as well as the potential exposure to
chemicals. Ms. Spencer continued to be concerned about possible adverse health
effects from exposure to chemicals for herself and her children. Chloe was scared
and anxious as a result of the explosion ; and, thereafter, she was anxious and
concerned.
Ms. Spencer, individually and on behalf of her minor children, and Lanny
LaFrance, Jr. on behalf of his minor children (sometimes collectively referred to as
“Ms. Spencer”) filed suit against Valero in the Justice of the Peace Court in St.
Bernard Parish. Ms. Spencer alleged damages for emotional distress, but d id not
allege physical injury, property damage, or financial loss.
After a trial, the j ustice of the p eace dismissed Ms. Spencer ’s suit.
2 Ms.
Spencer then appealed to the 34th Judicial District Court pursuant to La.Code Civ.P.
art. 4924.3 The district court conducted a de novo trial. There was no live testimony.
The parties stipulated to what Ms. Spencer would have testified to if she had testified
live, to a number of relevant facts, and to the admissibility and authenticity of

2 The judgment stated:

[T]he court finds that the plaintiff did not show enough evidence to award damages
for the event that occurred on April 10th, 2020.

The court was not presented with any professional medical evidence of anguish.
Also, no physical damage to property was claimed during the trial. Finally, the
plaintiff showed minimal to no proof of intentional negligence on behalf of the
defendant. For these reasons, the court finds for the defendant.

3 Louisiana Code Civil Procedure Article 4924 provides, in part:

A. Appeal from a judgment rendered by a justice of the peace court or a clerk of
court shall be taken to the parish court or, if there is no parish court, to the district
court of the parish in which the justice of the peace court is situated.

B. The case is tried de novo on appeal. However, a trial de novo, in the district court
from the justice of the peace court, is not subject to the jurisdictional limit of the
justice of the peace court.

4

numerous documents/evidence. The district court also heard oral argument. The
district court awarded Ms. Spencer $1,000 plus interest and costs for her own mental
anguish and $250 plus interest and costs for the mental anguish of Chloe.4 The
district court dismissed Ms. Spencer’s claim on behalf of Lanny, finding he slept
through the explosion.5 Valero applied for supervisory review to the Fourth Circuit
Court of Appeal. The court of appeal denied the writ without comment. Spencer v.
Valero Refining Meraux, LLC, 21-383 (La.App. 4 Cir. 7/13/21) (unpub.). Valero
then sought review by this Court. T his Court granted the writ and remanded the
matter to the court of appeal for the sole purpose of briefing, argument, and full
opinion. Spencer v. Valero Refining Meraux, LLC , 21-1188 (La. 11/17/21), 327
So.3d 489.
On remand, the court of appeal granted the writ, but denied relief, concluding
that the district court was not clearly wrong in finding Ms. Spencer and Chloe were
entitled to damages. Spencer v. Valero Refining Meraux, LLC , 21-383 (La.App. 4
Cir. 2/2/22), 2022 WL 305319 . The court of appeal determined that Ms. Spencer
satisfied her burden under La.Civ. Code art. 2315 in establishing general negligence.
It f urther found she met her burden of establishing a likelihood of genuine and
serious emotional distress arising from her particular circumstances. The court of
appeal conclud ed that the stipulated testimony and the evidence supported the
district court’s findings.6 Therefore, the court of appeal granted the writ, but denied

4 The district court explained that there was no evidence that Chloe had subsequent anxiety over
safety and health impacts, as was the case with Ms. Spencer; therefore, her award was lower.

5 In Written Findings of Fact and Reasons for Judgment, the district court explained, in part:

The Court further found that plaintiffs[] Brittany LaFrance and Chloe M ae
LaFrance met their burden of proving that Valero’s conduct was the cause of the
plaintiffs’ injuries. The plaintiffs met their burden of proving “genuine and serious
mental distress, arising from the special circumstances, which serve as a guarantee
that the claim is not spurious.” [ Lester v. Exxon Mobil Corp., 12- 1709, p. 8
(La.App. 4 Cir. 6/26/13), 120 So.3d 767, 774, writs denied, 13-2397, 13-2465 (La.
2/7/14), 131 So.3d 862, 863].

6 The appellate court stated:

5

relief. It also denied Valero’s request for a rehearing. Valero then sought writs in
this Court, which were granted. Spencer v. Valero Refining Meraux, LLC , 22-469
(La. 9/20/22), 345 So.3d 1025.
Kevreion Raines
When the explosion occurred, Plaintiff, Kevreion Raines, was at her home
helping her aunts, Robin Leflore and Lisa Leflore, change the trach tube for her
mother, Rosalind Leflore, a ventilator -dependent ALS patient. The explosion
sounded “like a bomb” to her. She felt “the vibration,” and the house shook . The
lights began to flicker, and the alarms of Ms. Rosalind’s ventilator went off. Ms.
Rosalind became distressed. Ms. Raines and her aunts attempted to settle her down
and finish the trach care. When Ms. Raines went outside, she saw “big gray clouds
of smoke[,]” which was “very scary[.]” She did not notice any unusual odors or
smoke in the house , nor in the area around the home. Ms. Raines remained at her
mother’s bedside until later that morning.
At first, Ms. Raines had trouble sleeping, but she returned to her normal sleep
schedule a couple of days after the explosion. Ms. Raines continued to feel
uncomfortable living in the house out of fear it may happen again. She was of the
belief that the explosion caused cracks in the ceiling and “little small cracks within
the floors” of the home. At the time of trial, Ms. Raines felt fear in the back of her
mind and remained uncertain about what was in the air and if it was safe.

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 v. Cardona, 97-2346, p. 6 (La.App. 4 Cir.
5/20/98), 713 So.2d 802, 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.

Spencer, 21-383, at p. 8.

6

Ms. Raines filed suit against Valero in the Justice of the Peace Court in St.
Bernard Parish, alleging negligent infliction of emotional distress. The justice of the
peace issued a judgment in favor of Valero.7 Ms. Raines then appealed to the 34th
Judicial District Court. After a trial de novo, the district court reversed and awarded
Ms. Raines $2,500.8 From this ruling, Valero sought writs. The Fourth Circuit Court
of Appeal denied the writ in part, granted in part, and remanded. Raines v. Valero
Refining Meraux, LLC, 21 -726 (La.App. 4 Cir. 2/28/22) (unpub.).9 Valero then

7 The judgment provides:

After hearing testimony and all evidence from the defense and plaintiff in this case,
the court rules in favor of the defense. The plaintiff did not present sufficient
evidence to prove injuries from the incident that occurred at the Valero Refinery.
There was no medical or substantial evidence beyond witness testimony that
provides a clear idea of the injuries received and the effects from the injuries on the
plaintiff’s everyday life.

8 The judgment provides, in part:

IT IS ORDERED ADJUDGED AND DECREED that there be a
judgment herein in favor of Plaintiff, Kevreion Raines, and against Defendant,
Valero Refining Meraux, LLC, in the amount of $2,500.00 which is inclusive of
both general and Lejeune damages for the physical impact of the explosion felt by
the Plaintiff, which was strong enough to generate a crack in the floor of the home,
presented by the credible testimony of the Plaintiff, as well as the emotion[al]
distress caused by the explosion which resulted in a loss of power as Plaintiff’s
mother, Rosalind Leflore, of whom Plaintiff is a primary care give[r], also resides
in the home. Rosalind Leflore has ALS and is unable to breath without the
assistance of an endotracheal tube connected to a ventilator and went into a state of
distress following the explosion.

9 The court of appeal opined:

After de novo review of the record in light of the applicable law, the relator’s
writ application is denied in part and granted in part. We find no error in the district
court judgment awarding the respondent general damages for the mental distress
she suffered as a result of the refinery explosion on April 10, 2020. The
respondent’s home is five blocks from the refinery and the explosion resulted in
flames shooting fifty -feet into the air, shaking the respondent’s home with
sufficient force to cause some damage to the floor and ceiling. Accordingly, under
the particular facts of this case, there was a special likelihood that the respondent
suffered genuine and serious mental distress as a result of the explosion and the
claim is not spurious.

However, the district court erred in granting the respondent bystander
damages based on the respondent’s observation of her mother’s response to the
explosion. Although the respondent’s mother (who has ALS and is on a ventilator)
no doubt experienced panic and fear due to the explosion, there is nothing in the
record to support a finding that the respondent suffered severe, debilitating, and
foreseeable emotional distress due to her mother’s panic. Accordingly, we grant the
writ in part, reverse the award of bystander damages, and remand the matter to the
district court to determine the amount of general damages.

Id. at pp. 1-2 (footnote omitted).

7

sought writs in this Court, which were granted. Raines v. Valero Refining Meraux,
LLC, 22-539 (La. 9/20/22), 345 So.3d 1025.
Rosemary Gagliano
At the time of the explosion, Plaintiff, Rosemary Gagliano, was staying at her
mother’s home. She heard a loud “boom” that shook everything in the home. The
noise woke her up and scared her. She witnessed a “glow ,” and the explosion “lit
up the house through the blinds[.]” Ms. Gagliano was “shaky and very scared.” She
went outside and saw the flames. S he and he r mother left the home and began
driving away from the refinery; however, the roadway was blocked. Therefore, Ms.
Gagliano drove in the opposite direction and went to her sister’s home nearby. Ms.
Gagliano and family members sat outside until early morning “nervous” and
“shaking[.]” Eventually, she went inside and dozed. She returned home the evening
of April 10, 2020. Ms. Gagliano remained nervous that an explosion was going to
happen again. The explosion did not affect her daily lifestyle, she was “just leery
about it[.]”
Ms. Gagliano filed suit against Valero in the Justice of the Peace Court in St.
Bernard Parish alleging negligent infliction of emotional distress. The justice of the
peace issued a judgment in favor of Ms. Gagliano and awarded her $750 in damages
plus $100 for court costs.
10 Both sides appealed to the 34th Judicial District Court.
After a de novo review, the district court increased her damage award to $1,750.11
From this ruling, Valero sought writs, which the Fourth Circuit Court of Appeal
denied. Gagliano v. Valero Refining Meraux, LLC, 22-124 (La.App. 4 Cir. 3/31/22)

10 The judgment provides:

[T]he court, using the precedent set by the court case of [ Spencer v. Valero] ruled
upon by the Honorable Judge William McGoey, finds that defendants were
negligent and at -fault for the mental distress experienced by Ms. Gagliano. The
mental distress was intense enough for the plaintiff to leave her house because she
was not notified by Valero on the circumstances of the explosion.

11 The district court judgment did not provide reasons for judgment.

8

(unpub.).12 Valero then sought writs in this Court, which we re granted. Gagliano
v. Valero Refining Meraux, LLC, 22-730 (La. 9/20/22), 345 So.3d 1026.
STANDARD OF REVIEW
In civil cases, the appropriate standard for appellate review of factual
determinations is the manifest error or clearly wrong standard, which precludes the
setting aside of a district court’s finding of fact unless that finding is clearly wrong
in light of the record reviewed in its entirety. Hall v. Folger Coffee Co., 03-1734, p.
9 (La. 4/14/04), 874 So.2d 90, 98; Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).
In order to reverse a fact finder’s determination of fact, an appellate court must
review the record in its entirety and: (1) find that a reasonable factual basis does not
exist for the finding ; and, (2) further determine that the record establishes that the
fact finder is clearly wrong or manifestly erroneous. Stobart v. State, through the
Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993).

12 The court of appeal stated:

After de novo review, we find that the respondent met her burden of proving the
relator failed to conform its conduct to the applicable standard, the relator’s
negligence resulted in the release of hazardous materials that was a cause-in-fact of
the respondent’s emotional distress, and she suffered actual damages. Moreover,
the explosion fits the “special circumstances” exception to allow an award for
emotional distress absent physical injury. See Moresi v. State Through Dept. of
Wildlife & Fisheries, 567 So.2d 1081, 1096 (La. 1990) (providing “special
circumstances” exception when there is “especial likelihood of genuine and serious
mental distress, arising from the special circumstances, which serves as a guarantee
that the claim is not spurious”). The refinery explosion shook the respondent’s
home with sufficient force that the respondent felt the vibrations. The fireball
resulted in flames fifty-feet in diameter and twenty-five feet in the air. The glow of
the fire lit the respondent’s home. The respondent feared for her safety and that of
her mother so much that they left their home. The respondent witnessed emergency
response vehicles near the refinery. The respondent did not know whether she was
exposed to hazardous materials. The respondent lost sleep and suffered fright but
did not require medical attention. The fact that the respondent suffered minimal
damages does not preclude recovery. Under the particular facts presented herein,
there was a special likelihood of genuine and serious mental distress arising from
the April 10, 2020 explosion, which serves as a guarantee that the respondent’s
claim is not spurious.

Id. at pp. 1-2.

9

LAW AND DISCUSSION
Valero argues that the court of appeal erred in taking the “exceptional
circumstances” exception of Moresi, 567 So.2d 1081, and transforming it into the
general rule, thereby making a defendant guilty of mere negligence liable for
negligent infliction of emotional distress in the absence of physical damage/injury.
Valero as ks this Court to reverse the court of appeal and adapt the following
reformulation of this Court’s jurisprudence governing claims for negligent infliction
of emotional distress:
1. As a general rule, if a defendant’s conduct is merely negligent and causes
only mental disturbance, without accompanying physical injury, illness, or
other physical consequences, the defendant is not liable for such emotional
disturbances.
[13]

2. An exception to this general rule exists when:
a. A defendant owes a special, direct duty to the plaintiff intended to
protect the plaintiff’s emotional well-being;[14]

b. The defendant, through outrageous conduct, breaches that duty;
[15]
and,

c. The defendant’s conduct is likely to cause and in fact does cause the
plaintiff to suffer severe, debilitating emotional distress.[16]

13 In support, Valero cites Moresi, 567 So.2d at 1096.

14 In support, Valero cites: Clomon v. Monroe City Sch. Bd., 572 So.2d 571 (La.1990); Norred v.
Radisson Hotel Corp., 95 -748 (La.App. 1 Cir. 12/15/95), 665 So.2d 753; Covington v. Howard,
49,135 (La.App. 2 Cir. 8/13/14), 146 So.2d 933, writ denied, 14-1927 (La. 11/21/14) 160 So.3d
973; and, Walker v. Allen Par. Health Unit, 97-1007 (La.App. 3 Cir. 4/1/98), 711 So.2d 734, writ
denied, 98-1698 (La. 10/9/98), 727 So.2d 440. Valero provides the following examples of special
legal relationships: doctor -patient; hospital-patient; private investigator -client; landlord -tenant;
and, fiduciary-beneficiary.

15 In support, Valero cites: Arco Oil & Gas Co., a Div. of Atlantic Richfield Co. v. DeShazer, 98-
1487, p. 5 (La. 1/20/99), 728 So.2d 841, 845 (“[W]e have held that only one who by extreme and
outrageous conduct intentionally or negligently causes severe emotional distress to another is
subject to liability for such damages.”); Prest v. Louisiana Citizens Prop. Ins. Corp., 12-513, p. 14
(La. 12/4/12), 125 So.3d 1079, 1089) (“merely negligent” conduct “did not rise to the level of the
‘special circumstances’ necessary for an award of general damages” for emotional distress.”); and,
Dufreche v. Coco, 20-30, p. 13 (La.App. 4 Cir 4/15/20), 298 So.3d 800, 809 (A plaintiff seeking
recovery for negligent infliction of emotional distress without physical injury must meet “the
heavy burden of proving outrageous conduct by the defendant.”).

16 In support, Val ero cites: Lejeune v. Rayne Branch Hosp., 556 So.2d 559, 570 (La.1990)
(requiring “severe and debilitating” emotional distress); and, Arco Oil & Gas Co., 728 So.2d at
845 (requiring that the conduct “cause[] severe emotional distress” and stating that “[m]inimal and
normal inconvenience is not compensable.”).

10

Valero breaks down these elements and argues: (1) there was no breach of a special,
direct duty to the Plaintiffs; (2) there was no outrageous conduct, only ordinary
negligence; and, (3) the Plaintiffs’ emotional distress was neither severe nor
debilitating.
For the reasons set forth below, we reject Valero’s argument that “special
circumstances” under Moresi requires a breach of a “special, direct duty.” We also
reject Valero’s argument that recovery is permitted only when the defendant’s
conduct is “outrageous.” We find no merit to Valero’s argument that, to recover, a
plaintiff must suffer “severe, debilitating emotional distress.” Finally, we agree with
Valero that public policy considerations require reasonable limits on recovery for
negligent infliction of emotional distress. These policy concerns are especially acute
in claims for negligent infliction of emotional distress without physical
damage/injury.
17
This Court agrees with Plaintiffs that the standard of recovery proposed by
Valero seeks to combine the standards set forth in Moresi, 567 So.2d 1081, Lejeune,
556 So.2d 559, Bonnette v. Conoco, Inc. , 01-2767 (La. 1/28/03), 837 So.2d 1219 ,
Arco Oil & Gas, Co., 728 So.2d 841, Clomon, 572 So.2d 571, and Prest, 125 So.3d
1079. We decline to adopt Valero’s proposed standard.
Jurisprudence
The parties rely on numerous decisions in support of their respective positions
on whether Plaintiffs are entitled to recover for negligent infliction of emotional
distress. A review and consideration of the jurisprudence is warranted and
instructive. However, we note that each of these decisions are readily
distinguishable from the instant matters. We emphasize that the instant matters

17 In Consolidated Rail Corp. v. Gottshall, 114 S.Ct. 2396, 512 U.S. 532 (1994), the United States
Supreme Court noted that while states recognize a right to recover for negligent infliction of
emotional distress, no jurisdiction allows recovery for all emotional harms. This is because, unlike
physical injury, “there are no necessary finite limits on the number of persons who might suffer
emotional injury as a result of a given negligent act.” Id. at 545.

11

involve claims for negligent infliction of emotional distress absent physical
damage/injury. These claims arose from an explosion that caused no substantial
chemical release. There was no evacuation order or shelter -in-place issued. None
of the P laintiffs experienced any physical symptoms, nor received any medical
treatment. Damages are sought for general fear and anxiety resulting from the
explosion. Finally, none of the Plaintiffs seek “bystander damages.”18 Cognizant of
these specific facts, this Court has considered the jurisprudence relied upon by the
parties, some of which is discussed herein.
In Moresi, 567 So.2d 1081, h unters filed suit against the State of Louisiana,
through the Department of Wildlife and Fisheries, and its agents. Following the
hunters’ arrest, the agents left a message on their camp door , which read: “We
missed you this time but look out next time !!” Plaintiffs testified that following
these events, their enjoyment of the camp was diminished because of their fear of
further harassment. Relevant to the cases at bar, this Court was called upon to decide
whether the trial court properly awarded plaintiffs damages for negligent infliction
of emotional distress under state law. The Moresi Court found that plaintiffs neither
alleged nor proved that they suffered any bodily harm or property damage as a result
of the agents’ negligence; instead, they were seeking recovery on the basis that the
agents’ ordinary negligence caused them only mental disturbance. Moresi
recognized that there had been deviations from the general rule that a defendant is
not liable for mere negligence causing mental disturbance without physical injury,
illness or other physical consequences and opined: “There may be other cases, but
all of these categories have in common 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.” Id. at 1096. The Court found “ plaintiffs’ mental

18 In Lejeune, 556 So.2d 559, this Court held that mental pain and anguish claims arising o ut of
injury to third persons are allowable and delineated the limits on the cause of action. Awards for
claims of this nature are referred to as “bystander damages.”

12

disturbance was not severe, or related to personal injury or property damage, and the
plaintiffs were not in great fear for their personal safety.” Id. Therefore, the case
did not “fall within any category having an especial likelihood of genuine and serious
mental distress, and thus lack[ed] any recognized elements guaranteeing the
genuineness of the injury claimed.” Id. Notably, Moresi did not involve a fire ,
explosion, or fear of one’s personal safety.
In Bonnette, 837 So.2d 1219, plaintiffs were property owners who brought an
action against a refinery owner for damages arising from exposure to asbestos
contained within soil which had been delivered to their property. In addition to
punitive damages and damages fo r diminished property values, plaintiffs sought
compensatory damages for damage to their property and landscape , exposure to
contaminated soil, and “emotional fears worrying about the presence of the dirt on
their property and the contaminants therein.” Id. at 1223. Addressing the claims for
mental anguish, the Bonnette Court opined that “[t]he problems inherent in awarding
damages for mental disturbance in the absence of manifest physical injury are
particularly pronounced in cases involving exposure to asbestos or other
carcinogens.” Id. at 1234. The Bonnette Court stated:
Thus, under the rule announced in Moresi, which must be
stringently applied in asbestos exposure cases due to their inherently
speculative nature, in order for plaintiffs to recover emotional distress
damages in the absence of a manifest physical injury, they must prove
their claim is not spurious by showing a particular likelihood of genuine
and serious mental distress arising from special circumstances.

Id. at 1235. This Court found that “while plaintiffs expressed a generalized fear of
contracting an asbestos-related disease, they failed to prove they suffered genuine
and serious mental distress arising from the placement of asbestos-containing soil
on their properties.” Id. at 1235 -36. A part from X -rays arranged for by their
attorneys just prior to trial, plaintiffs did not seek medical treatment for their alleged

13

physical concerns. They did undergo a pre-trial evaluation by a psychiatrist19 at the
request of their attorney. Additionally, some plaintiffs, although exposed, failed to
have the sources of asbestos removed. The Bonnette Court opined: “[W]e cannot
say [plaintiffs] suffered from genuine and serious mental distress that guarantees
their claim for mental distress damages is not spurious.” Id. at 1236. It held, in part,
that: compensatory damages for an increased risk of contracting cancer in the future
were not warranted; and, plaintiffs could not recover for mental anguish.20 Bonnette
is similar to the instant matters in that the claims were due to health concerns from
exposure; however, the Bonnette plaintiffs were actually exposed to asbestos and did
present some degree of medical evaluations and psychological testing.
Prest, 125 So.2d 1079, involved, in part, an action for mental anguish brought
against an insurance agency and insurer for failure to procure increases in plaintiff’s
coverage limits. This Court found that the defendant’s conduct “was not such as to
lead to the especial likelihood of g enuine and serious mental distress” and that its
actions constituted mere negligence which did not rise to the le vel of the “special
circumstances” necessary for an award of damages. Id. at 1089. The evidence in
Prest established that plaintiff suffered “sleepless nights,” was “on edge,” resorted
to alcohol to relieve stress, and was prescribed “minor things” by his physician. Id.
No counseling or therapy was sought. The Prest Court concluded: “While we do
not doubt Mr. Prest experienced disappointment, inconvenience and stress . . ., the

19 The psychiatrist testified that some plaintiffs’ preexisting anxiety disorders were aggravated by
the stress of the exposure , and others’ preexisting health conditions were exacerbated by their
worry. Additionally, some were depressed due to the additional stress.

20 The Court also stated:

While we recognize that much of the general public exhibits a degree of
anxiety concerning exposure to asbestos and asbestos -containing materials, it is a
fact of modern life that most of us are exposed to de minimus amounts of asbestos
on a daily basis. Plaintiffs have failed to prove their exposures resulted in a
particular likelihood of genuine and serious mental distress.

Id.

14

record does not establish he suffered more than the level of distress people in
southern Louisiana experienced in the aftermath of Hurricane Katrina.” Id. at 1089-
90. The Prest Court held that although general damage awards are possible for
claims of mental anguish without physical injury, the evidence was insufficient to
support such an award. Obviously, the underlying facts giving rise to the claims in
Prest are vastly different than those asserted herein.
In Arco Oil & Gas Co. , 728 So.2d 841, this Court addressed the appropriate
standard for recovery of mental anguish damages under La.Code Civ.Proc. art. 3608
and reasoned “that the narrow standard governing liability for damages in tort cases
involving negligent or intentional infliction of emotional distress also provides an
appropriate standard for recovery of mental anguish damages under Article 3608. ”
Id. at 844. The Court opined that although recovery was permitted for negligent
infliction of emotional distress, it had previously “held that only one who by extreme
and outrageous conduct intentionally or negligently causes severe emotional distress
to another is subject to liability for such damages. ” Id. at 845 (citing White v.
Monsanto Co., 585 So.2d 1205 (La.1991); Moresi, 567 So.2d 1081). “Minimal and
normal inconvenience is not compensable.” Id. The Arco Court held “that damages
for mental anguish are recoverable under Article 3608 only in the presence of special
circumstances involving outrageous or egregious conduct. ” Id. Applying this
standard, it found that Arco “did not act in an outrageous or egregious manner” when
it sought and obtained the temporary restraining order. Id. at 846. Additionally,
DeShazer’s mental anguish was not “severe,” as he “merely felt depressed and was
unable to concentrate. Further, no physician, psychiatrist, psychologist or other
disinterested individual testified as to DeShazer’s mental state during that time
period.” Id. Therefore, the Court determined that the evidence “presented simply
does not indicate that there was ‘an especial likelihood of genuine and serious mental
distress.’” Id. (quoting Moresi, 567 So.2d at 1096). In context, the holding of Arco

15

Oil & Gas, Co., and the language utilized therein, addressed the standard for
recovery of mental anguish damages under La.Code Civ.Proc. art. 3608.
The foregoing decisions are instructive. There are also numerous appellate
court decisions which yield differing results. The decisions use similar wording, but
arguably language of a different meaning . Each are also fact intensive. We
emphasize the unique facts of these cases presently before us as set forth in detail
above. To be certain, no one fact, or lack thereof, necessarily entitles a plaintiff to a
recovery, nor does it preclude recovery. A trier of fact is to weigh all relevant facts
of each case before it and give each due weight and consideration. As previously
held, r ecovery for negligent infliction of emotional distress absent physical
damage/injury is not precluded; however, given the nature of such claims, a trier of
fact must be heedful of the goal of preventing spurious claims, and that not every
occasion that causes some harm yields concomitant liability and compensatory
damages.
Analysis
While each case will differ, we provide the following relative to claims for
negligent inflection of emotional distress absent physical damage/injury. A claim
for negligent infliction of emotional distress without physical injury is viable
under La.Civ.Code art. 2315(A), which provides: “Every act whatever of man that
causes damages to another obliges him by whose fault it happened to repair it.” A
duty-risk analy sis is utilized in determining whether one may recover
under La.Civ.Code art. 2315. Doe v. McKesson, 21-929, p. 7 (La. 3/25/22), 339
So.3d 524, 531. For liability to attach, a plaintiff must prove five separate elements:
(1) the defendant had a duty to conform his or her conduct to a specific standard of
care (the duty element); (2) the defendant failed to conform his or her conduct to the
appropriate standard (the breach of duty element); (3) the defendant’ s substandard
conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (4)

16

the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the
scope of liability or scope of protection element); and, (5) actual damages (the
damages element). Mathieu v. Imperial Toy Corp., 94-952, pp. 4-5 (La.11/30/94),
646 So.2d 318, 322 . A negative answer to any of those inquiries results in a
determination of no liability. Id. at 326.
Additionally, for negligent infliction of emotional distress claims absent
physical damage/injury, 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.” Moresi, 567 So.2d at 1096. This rule
must be “ stringently applied” in cases that are inherently speculative in nature.
Bonnette, 837 So.2d at 1235. The actions of the defendant must constitute
negligence. The plaintiff’s mental disturbance must be “serious.” Moresi, 567 So.2d
at 1096. Evidence of generalized fear or evidence of mere inconvenience is
insufficient. Evidence of medical treatment is not required, nor is e xpert medical
testimony; however, a plaintiff bears the burden of presenting sufficient evidence of
the nature and extent of the mental anguish suffered that was caused by the
defendant’s conduct. Whether the mental distress is “serious” is a matter of proof.
Finally, we reiterate that these guidelines must be applied with the policy
considerations discussed herein.
In reaching our conclusion, we further elaborate on what is not required to be
proven by a plaintiff seeking damages for negligent infliction of emotional distress
absent physical damage/injury. The existence of a special, direct duty owed by the
defendant is not required. We also decline to impose a requirement of outrageous
conduct on the part of a defendant. A claim for negligent infliction of emotional
distress is a claim that, by definition, requires a plaintiff to prove negligence.
Further, we expressly reject application of the standard set forth in Lejeune , 556

17

So.2d 559.21 The emotional distress suffered by a plaintiff need not be “reasonably
foreseeable,” nor “severe and debilitating.” Lejeune, 556 So.2d at 571.
This Court has considered the complex policy considerations advanced by
both parties and find they do not clearly favor either. As Plaintiffs advance, allowing
recovery may serve to compensate victims and provide an incentive for the safe
operation of the refinery so as to deter future harm. Relative to economic
considerations, there has been no evidence that this litigation will be a burden on the
industry, nor this particular refinery. Likewise, there has been no evidence that
potential liability would lead to an unmanageable flow of litigation. The fact that
the awards may be low does not warrant precluding recovery. 22 There is a finite
number of plaintiffs arising out of a discrete accident. Valero is best positioned to
protect against such accidents, and there are no reasonable precautions Plaintiffs
could have taken to avoid or mitigate damages. V alero’s operation of the refinery
does serve a legitimate purpose. As this Court has observed, the purpose of tort law
is “to protect some persons under some circumstances against some risks.”
23 These
policy considerations are considered along with those previously explained by this
Court to be applicable to claims for negligent infliction of emotional distress.
Applying the foregoing guidelines to the facts of this case, we find that Valero
owed a duty to protect those in the surrounding community. Indeed, various courts

21 Given that the present claims do not assert “bystander damages,” the modifications and
restrictions set forth in Lejeune are not applicable. To the extent the language of Lejeune differs
from that of Moresi, we reject Valero’s invitation to adapt Lejeune’s language as the standard for
claims for negligent infliction of emotional distres s absent physical damage/injury . We
acknowledge the argument advanced by Valero and find similar policy considerations of Lejeune
to be relevant; however, the standard set forth in Lejeune and La.Civ.Code art. 2315.6 is limited
exclusively to claims for bystander damages.

22 The de minimus amounts of the awards does not alone mean that damages are not recoverable.
This Court does not turn a blind eye to the fear and anxiety reasonably experienced by Plaintiffs.

23Gresham v. Davenport , 537 So.2d 1144, 1147 (La.1989) (quoting Malone, Ruminations on
Cause-In-Fact, 9 Stanford L.Rev. 60, 73 (1956)); see also Roberts v. Benoit, 605 So.2d 1032, 1044
(La.1991); Hill v. Lundin & Assocs., Inc., 256 So.2d 620, 623 (La.1972).

18

have found such a duty is owed.24 We also find that Plaintiffs fall within the broad
class of plaintiffs to whom a duty is owed. In this case, Valero breached the duty it
owed, which was a cause -in-fact of Plaintiff s’ generalized fear and anxiety.
However, we find that the element of damages within the parameters of claims for
negligent infliction of emotional distress absent physical damage/injury were not
proven. Stringently applying the rule of Moresi, 567 So.2d at 1096, Plaintiffs failed
to 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.” No Plaintiff has put forth sufficient evidence that the mental disturbance
suffered w as “serious.” Moresi, 567 So.2d at 1096. Viewing the record in its
entirety, we find that a reasonable factual basis does not exist to support the awards
for negligent infliction of emotional distress ; thus, we find the lower courts
manifestly erred.
Codal nuisance doctrine
Because Plaintiffs have also relied heavily on the codal doctrine of nuisance,
set forth in La.C iv.Code arts. 667 -669,25 as an independent duty and basis for

24 Aaron v. Exxon Mobil Corp., 18-476 (La.App. 1 Cir. 12/27/18), 271 So.3d 205; Andry v. Murphy
Oil, U.S.A., Inc., 05- 126 (La.App. 4 Cir. 6/14/06), 935 So.2d 239, writ denied , 06- 2256 (La.
12/8/06), 943 So.3d 1093; Doerr v. Mobile Corp., 04- 1789 (La.App. 4 Cir. 6/14/16), 935 So.2d
231, writ denied, 06-1760 (La. 11/3/06), 940 So.2d 664.

25 Louisiana Civil Code Article 667 provides:

Although a proprietor may do with his estate whatever he pleases, still he cannot
make any work on it, which may deprive his neighbor of the liberty of enjoying
his own, or which may be the cause of any damage to him. However, if the work
he makes on his estate deprives his neighbor of enjoyment or causes damage to
him, he is answerable for damages only upon a showing that he knew or, in the
exercise of r easonable care, should have known that his works would cause
damage, that the damage could have been prevented by the exercise of reasonable
care, and that he failed to exercise such reasonable care. Nothing in this Article
shall preclude the court from the application of the doctrine of res ipsa loquitur in
an appropriate case. Nonetheless, the proprietor is answerable for damages without
regard to his knowledge or his exercise of reasonable care, if the damage is caused
by an ultrahazardous activity. An ultrahazardous activity as used in this Article is
strictly limited to pile driving or blasting with explosives.

Louisiana Civil Code Article 668 provides:

19

recovery, we address their contention. Plaintiffs rely primarily on Inabnet v. Exxon
Corp., 93,681 (La. 9/6/94) 642 So.2d 1243. According to Plaintiffs, Inabet and the
nuisance doctrine refer to “ inconvenience,” which is a lower standard tha n
traditional cases to which Moresi was applied. In Inabnet, this Court discussed
La.Civ.Code arts. 667- 669 and opined that, together, the articles establish the
following principles:
No one may use his property so as to cause damage to another or to
interfere substantially with the enjoyment of another’s property (Article
667). Landowners must necessarily be exposed to some inconveniences
arising from the normal exercise of the right of ownership by a neighbor
(Article 668). Excessive inconveniences caused by the emission of
industrial smoke, odors, noise, dust, vapors and the like need not be
tolerated in the absence of a conventional servitude; whether an
inconvenience is excessive or not is to be determined in the light of
local ordinances and customs (Article 669).

Inabnet, 642 So.2d at 1251 (quoting 4 A.N. Yiannopoulos, Louisiana C ivil Law
Treatise—Predial Servitudes §§ 25, 34 (1983)). The Inabnet Court reasoned that
Exxon was prohibited from performing any actions “which would cause damage to
plaintiff on the adjoining property or interfere substantially with plaintiff’s
enjoyment of the property, and plaintiff was required to tolerate some inconvenience
from Exxon’s normal use of its property rights.” Id. at 1253.

Although one be not at liberty to make any work by which his neighbor’s buildings
may be damaged, yet every one has the liberty of doing on his own ground
whatsoever he pleases, although it should occasion some inconvenience to his
neighbor.

Thus he who is not subject to any servitude originating from a particular agreement
in that respect, may raise his house as high as he pleases, although by such elevation
he should darken the lights of his neighbors’s [neighbor’s] house, because this act
occasions only an inconvenience, but not a real damage.

Louisiana Civil Code Article 669 provides:

If the works or materials for any manufactory or other operation, cause an
inconvenience to those in the same or in the neighboring houses, by diffusing
smoke or nauseous smell, and there be no servitude established by which they are
regulated, their sufferance m ust be determined by the rules of the police, or the
customs of the place.

20

A landowner’s right of ownership does “require that he tolerate some
inconvenience from the lawful use of a neighbor’s land.”26 Based upon the facts of
the cases before us, Plaintiffs have failed to prove that Valero “interfered
substantially” with their enjoyment of their property. Proof of mere inconvenience
is insufficient, and the codal doctrine of nuisance may not be used as a grounds to
provide remedies for claims which would otherwise fail under the guidelines set
forth herein relative to negligent infliction of emotional distress absent physical
damage/injury. Additionally, in order to recover, a plaintiff asserting claims under
La.Civ.Code arts. 667-669 must prove damages. As explained above, Plaintiffs have
failed to meet their burden of proving damages.
CONCLUSION
General damage s m ay be recover ed for claims of negligent infliction of
emotional distress absent physical damage/injury; however, the foregoing guidelines
must to be applied in determining a plaintiff’s entitlement to recovery. In this fact-
intensive case, based on the record, we find the evidence presented by each Plaintiff
to be insufficient to support an award for negligent infliction of emotional distress.
We acknowledge that the facts in these consolidated cases differ, and we find that
some approach the brink of that Plaintiff having made the requisite showing;
however, no Plaintiff has met their burden of proving they are entitle d to such an
award.
DECREE
For the foregoing reasons, the awards of the lower courts to Brittany Spencer
individually, Brittany Spencer and Lanny LaFrance, Jr., on behalf of Chloe
LaFrance, Kevreion Raines, and Rosemary Gagliano for negligent i nfliction of
emotional distress are reversed.
REVERSED.

26 Constance v. State, through Dep’t of Transp. & Dev. Off. of Highways , 626 So.2d 1151, 1155
(La.1993).

SUPREME COURT OF LOUISIANA
No. 2022-CC-00469
BRITTANY LYNN SPENCER
VS.
VALERO REFINING MERAUX, LLC
C/W
No. 2022-CC-00539
KEVREION RAINES VS. VALERO REFINING MERAUX, L.L.C.
C/W
No. 2022-CC-00730
ROSEMARY GAGLIANO VS. VALERO REFINING MERAUX, L.L.C.
On Supervisory Writ to the 34th Judicial District Court, Parish of St. Bernard
WEIMER, C.J., concurring.
I agree the plaintiffs in this case are not entitled to recover damages for
negligent infliction of emotional distress. This does not imply plaintiffs were not
harmed in some way or that plaintiffs are not to be believed. There is no question the
explosion caused damages; however, the law does not impose unlimited liability and
not each and every type of damage is legally compensable.
The Civil Code establishes only two sources of law in Louisiana: legislation
and custom. See La. C.C. art. 1. Legislation is superior to custom and will supercede
it in every instance. See La. C.C. art. 3; Doerr v. Mobil Oil Corp., 00-0947, p. 13
(La. 12/19/00), 774 So.2d 119, 128. Judicial decisions are not intended to be an
authoritative source of law in Louisiana. Doerr, 00-0947 at 13, 774 So.2d at 128.

Thus, in our civilian jurisdiction,1 legislation is a solemn expression of legislative will
and the superior source of law, and we must apply legislation to govern decisions.
See La. C.C. arts. 1 and 2; Unwired Telecom Corp. v. Parish of Calcasieu,
03-0732, p. 14 (La. 1/19/05), 903 So.2d 392, 403.
Having said so often that citation is unnecessary, we begin as we must with the
language of the statute. Louisiana C.C. art. 2315(A) provides that “[e]very act
whatever of man that causes damage to another obliges him by whose fault it
happened to repair it.” This article sets forth the general principle that a person is
liable for all damages caused by his or her fault. Yet certain exceptions may exist by
law and limitations may be imposed to prevent indefinite and indeterminate liability.
See Clomon v. Monroe City School Bd., 572 So.2d 571, 573-74 (La. 1990);
Lejeune v. Rayne Branch Hosp., 556 So.2d 559, 569 (La. 1990). Relative to
damages for negligent infliction of emotional distress, limitations on recovery are
reasonable and regularly imposed. As the United States Supreme Court has
recognized, substantial limitations are often placed on the class of plaintiffs that may
recover for emotional injuries and on the injuries that may be compensable because
“a cause of action for negligent infliction of emotional distress holds out the very real
1 Some scholars suggest Louisiana is more properly referred to as a mixed jurisdiction, possessing
qualities of both the common and civil law traditions. See, e.g., Kenneth M. Murchison, The Judicial
Revival of Louisiana’s Civilian Tradition: A Surprising Triumph for the American Influence, 49 La.
L. Rev. 1, 3 (1988); James L. Dennis, Interpretation and Application of the Civil Code and the
Evaluation of Judicial Precedent, 54 La. L. Rev. 1 (1993); William Tetley, Mixed Jurisdictions:
Common Law v. Civil Law (Codified and Uncodified), 60 La. L. Rev. 677, 737 (2000); Kathryn
Venturatos Lorio, The Louisiana Civil Law Tradition: Archaic or Prophetic in the Twenty-First
Century?, 63 La. L. Rev. 1, 3 (2002). Despite our civil law heritage, often, in practice, judges will
ask counsel for a specific case to support an argument which is on “all fours” rather than a statute
or codal provision which are usually more general principles to which deductive reasoning must be
applied.
2

possibility of nearly infinite and unpredictable liability for defendants.”
Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 546 (1994).2
The majority opinion recognizes that public policy considerations require
reasonable limits on recovery for negligent infliction of emotional distress and
proceeds to evaluate the jurisprudence. Although the majority performs an excellent
analysis of the jurisprudence, I would avoid jurisprudentially imposing guidelines that
are applied with “policy considerations” untethered to legislation. Rather, in the
civilian tradition, I find it more appropriate to base the analysis on the Civil Code,
which already reflects aspects of the legislative will regarding the policy of limiting
claims for negligent infliction of emotional distress without physical damage or
injury. The analysis should begin with legislation.
Louisiana C.C. art. 2315.6 specifically defines the limits on recovery for mental
distress damages by bystanders. In addition to defining the narrow class of
bystanders who may recover damages for mental anguish or emotional distress
suffered as a result of another person’s injury,3 the article defines the type of
emotional distress injuries that are compensable:
To recover for mental anguish or emotional distress under this Article,
the injured person must suffer such harm that one can reasonably expect
a person in the claimant’s position to suffer serious mental anguish or
2 This court recognized similar concerns in Lejeune, 556 So.2d at 569-70.
3 La. C.C. art. 2315.6 (A) states:
The following persons who view an event causing injury to another person,
or who come upon the scene of the event soon thereafter, may recover damages for
mental anguish or emotional distress that they suffer as a result of the other person’s
injury:
(1) The spouse, child or children, and grandchild or grandchildren of the
injured person, or either the spouse, the child or children, or the grandchild or
grandchildren of the injured person.
(2) The father and mother of the injured person, or either of them.
(3) The brothers and sisters of the injured person or any of them.
(4) The grandfather and grandmother of the injured person, or either of them.
3

emotional distress from the experience, and the claimant’s mental
anguish or emotional distress must be severe, debilitating, and
foreseeable.
La. C.C. art. 2315.6 (B). Although this case does not directly involve bystander
damages, Article 2315.6 nonetheless provides a template for addressing emotional
distress injuries where there in no corresponding physical harm. The reasons for
limiting recovery in this case are no different. Applying the legislative limitations
delineated in Article 2315.6 by deductive reasoning and analogy is consistent with
a civilian methodology, which requires judges “to search for legal concepts in the
Civil Code delimiting a pattern of competing interests closely resembling the interests
pressing for recognition in the instant case.” James L. Dennis, Interpretation and
Application of the Civil Code and the Evaluation of Judicial Precedent, 54
L.Law.Rev. 1, 15 (1993). This methodology is logical because “[a] code, however
complete it may seem, is hardly finished before a thousand unexpected issues come
to face the judge. For laws, once drafted, remain as they were written. Men, on the
contrary, are never at rest; they are constantly active, and their unceasing activities,
the effects of which are modified in many ways by circumstances, produce at each
instant some new combination, some new fact, some new result.” Alain Levasseur,
Code Napoleon or Code Portalis?, 43 Tul. L. Rev. 762, 769 (1969) (citing THE
PRELIMINARY DISCOURSE OF PORTALIS, M. Shael Herman trans.). This court has
also recognized:
It is in the nature of codified law to be in the form of general rules
and principles rather than specific solutions for individual fact
situations. Accordingly, the courts which administer justice in a system
of written law must do more than mechanically apply the law. These
courts have the duty to interpret the written law and to fix the meaning
of terms in their proper context, to determine the applicability of the
articles to new fact situations, to make extensions by analogy in
appropriate civilian fashion, and to solve new problems in a manner
consistent with existing laws.
4

Bergeron v. Bergeron, 492 So.2d 1193, 1197-98 (La. 1986) (internal citations
omitted). As explained by the eminent civilian scholar, Professor Alain Levasseur,
“the civilian reasons by analogy from a statutory provision the same as from any other
legal rule.” Alain A. Levasseur, Portalis and Pound: A Debate on “Codification”,
81 La. L. Rev. 1113, 1127 (2021) (internal citation omitted).
Likewise, former Justice Dennis further instructs:
Whenever the judge finds such a gap in the Code, the Code
expressly requires him to decide the case anyway, implicitly requiring
that he resort either to analogy or to rulemaking in order to fashion a
concept or rule to adjust the conflict of interests in the case before him.
The method of analogy has always been used in the civil law.
Although the facts of a particular case may not have been foreseen by
any code article, if the same conflict of interests underlying the dispute
before the court has been expressly regulated by a legislated rule or
concept, the judge must balance the interests or resolve the conflict
between them in the same manner in the instant case. Whenever the
facts of a particular case are not foreseen by the code article, the judge
must first determine the conflict of interests which underlies the dispute.
Then he must examine whether or not that same conflict of interests
underlies other factual situations which have been expressly regulated
by legislation. If the answer is in the affirmative, he must transfer the
value decision, or the balance of interests, contained in the article to the
facts of the dispute presented before him, that is to say, he must decide
the identical conflict of interests in the same way.
Dennis, 54 L.Law.Rev. at 11-12. Louisiana C.C. art. 2315.6 clearly expresses the
legislative will regarding line-drawing relative to recovery of emotional distress
damages.
Ultimately, I agree with the result of the thoughtful and thorough opinion of
the majority, but I would take a more civilian approach to reach that decision. It is
appropriate for this court to follow the legislative policy incorporated in Article
2315.6 and apply the same limits in this case: to recover for mental anguish or
emotional distress in the absence of physical injury, the injured person must suffer
such harm that one can reasonably expect a person in the claimant’s position to suffer
5

serious mental anguish or emotional distress from the experience, and the claimant’s
mental anguish or emotional distress must be severe, debilitating, and foreseeable.
Considering the record, and applying this standard to the facts of this case, I find that
plaintiffs are not entitled to recover damages for their mental distress. I agree with
the majority that the rulings of the district court should be reversed.
6

SUPREME COURT OF LOUISIANA
No. 2022-CC-00469
BRITTANY LYNN SPENCER
VS.
VALERO REFINING MERAUX, LLC
C/W
No. 2022-CC-00539
KEVREION RAINES VS. VALERO REFINING MERAUX, L.L.C.
C/W
No. 2022-CC-00730
ROSEMARY GAGLIANO VS. VALERO REFINING MERAUX, L.L.C.
On Supervisory Writ to the 34th Judicial District Court, Parish of St. Bernard
CRAIN, J., concurs and assigns reasons.
I concur in the result and the majority’s recognition of negligent infliction of
emotional distress absent physical damage as a valid tort. I further concur that the
scope of this tort is limited, thus requiring stringent analysis to fulfill our objective
of guaranteeing no spurious claims. However, I respectfully disagree that the
standard embraced by the majority will achieve that just end.
Because defining the scope of this tort involves policy considerations that are
normally best left to the legislative branch of government, we should be mindful of
the jurisprudential evolution of this tort in Louisiana and any expressions by the
legislature relative to it. As an independent theory of liability, the tort of negligent
infliction of emotional distress absent physical injury was first recognized by this
court in Lejeune v. Rayne Branch Hosp., 556 So. 2d 559, 561 (La. 1990), after being
rejected for more than a century. (See Black v. Carrollton R.R. Co., 10 La. Ann. 33

2

(1855), where the tort was first discussed and rejected. That standard held for the
next 135 years .) In Lejeune, the “bystander recovery rule” –that is, recovery for
mental pain and anguish due to an injury to a third party –was recognized and
defined. Later that same year, a direct claim of negligent infliction of emotional
distress–that is, recovery for mental pain and anguish inflicted directly upon the
plaintiff himself–was recognized , although the plaintiffs’ claims were denied for
failing to meet their burden of proof. Moresi v. State Through Dept. of Wildlife &
Fisheries, 567 So.2d 1081, 1096 (La. 1990) . Again that same year, in Clomon v.
Monroe City Sch. Bd. , 572 So.2d 571 (La. 1990), the bystander recovery rule was
expanded and recovery was allowed for a bystander who did not have a close
relationship to the third party victim.
In apparent response to these jurisprudential developments, in 1991 , the
legislature enacted Louisiana Civil Code article 2315.6, recognizing the bystander
recovery theory of negligent infliction of emotional distress , but with significant
restrictions as to the class of persons allowed recovery and the extent of the
emotional distress required to recover . We are now tasked with articulating a
standard for recovery applicable to negligent infliction of emotional distress claims
other than those involving the “bystander recovery rule.” As noted in Lejeune, 556
So. 2d at 569, “there are policy reasons for placing limits on the types of claims that
may be redressed. ” These limits are not to frustrate the pursuit of valid claims;
rather, they are to authenticate them, thus ensuring their recovery while thwarting
the consumption of limited resources on spurious claims.1

1 In an asbestos exposure case, the U.S. Supreme Court mused, “ In a world of limited resources,
would a rule permitting immediate large-scale recoveries for widespread emotional distress caused
by fear of future disease diminish the likelihood of recovery by those who later suffer from the
disease? Cf. J. Weinstein, Individual Justice in Mass. Tort Litigation 10–11, 141 (1995); Schuck,
The Worst Should Go First: Deferral Registries in Asbestos Litigation, 15 Harv. J.L. & Pub. Pol'y
541(1992).” Metro-N. Commuter R. Co. v. Buckley, 521 U.S. 424, 435–36, 117 S. Ct. 2113, 2120,
138 L. Ed. 2d 560 (1997).

3

The majority acknowledges these cases, as well as others (Bonnette,2 Arco,3
and Prest4), and Article 2315.6, but distinguishes them because in each the class of
plaintiff differs from those presenting her e. However, I believe what is most
important is not the differences, but what is common to all. T he common thread is
each involves damages for mental and emotional distress absent physical injury.5
And in each, regardless of the class of plaintiff, recovery is allowed only for severe
and debilitating emotional distress.
The majority adopts a standard of negligence and serious injury. They attempt
to define what the tort is by defining what it is not. I believe that approach will only
frustrate the objective we all agree upon —guaranteeing these claims are not
spurious. To the contrary, our definition should be narrowly tailored to restrict
recovery to exceptional cases, as the legislature did in enacting Article 2315.6.
Again, in Consolidated Rail Corp. v. Gottshall , 114 S.Ct. 2396, 2401, 2405, 512
U.S. 532, 537, 546 (1994), the United States Supreme Court correctly observed that
the “restrictive attitude” toward these claims is to prevent “the very real possibility
of nearly infinite and unpredictable liability for defendants. ” Courts have pursued
this goal by putting restrictions on the class of plaintiffs who may recover and the
injuries that are compensable. Id. at 2405-2406.
To define the appropriate limits for the tor t, we turn to analytical principles
rooted in our civilian tradition. Because negligence is involved, we apply the duty-
risk analysis. Under that approach, a plaintiff must prove each of the following five
elements to recover: (1) the defendant had a duty to conform his conduct to a

2 Bonnette v. Conoco, Inc., 01-2767 (La. 1/28/03), 837 So.2d 1219.

3 Arco Oil & Gas Co. v. DeShazer, 98-1487 (La. 1/20/99), 728 So.2d 841.

4 Prest v. Louisiana Citizens Prop. Ins. Corp., 12-513 (La. 12/4/12), 125 So.3d 1079.

5 It is important to note that “absent physical injury” refers to no concomitant physical impact from
the negligent act, not a physical reaction to the emotional distress.

4

specific standard (the duty element); (2) the defendant’s conduct failed to conform
to the applicable standard (the breac h element); (3) the defendant’s substandard
conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (4)
the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the
scope of the duty element ); and (5) actual damages (the damages element). See
Lemann v. Essen Lane Daiquiris, Inc., 05–1095, p. 7 (La. 3/10/06), 923 So.2d 627,
633.
Duty:
Louisiana Civil Code a rticle 2315 creates accountability for fault , stating,
“Every act whatever of man that causes damages to another obliges him by whose
fault it happened to repair it.” It is the source of the duty owed in this case because
the act (negligently operating the refinery) allegedly caused damage (mental anguish
and emotional distress) to another (plaintiffs), thus creating an obligation for the
defendant to repair it. Looking at the element of duty broadly, as we are required
to do, the defendant owed a duty of care to the community in which it operated its
refinery. There are no moral, social , or economic considerations requiring the
categorical exclusion of this duty, nor is there a reason to exclude an entire category
of defendants (refinery operators and owners) from exercising reasonable care.
Posecai v. Wal-Mart Stores, Inc., 752 So. 2d 4 762, 766 (La. 1999).
Breach and Causation
Through a series of acts or omissions that resulted in an explosion and fire,
the defendant breached its duty of care. Plaintiffs allege their harm, specifically
generalized fear and anxiety, was caused by the breach. Thus, I find the elements of
duty, breach, and cause-in-fact are easily met.

5

Scope of the Duty
We next analyze the scope of the duty, asking whether mental distress absent
physical injury is a harm risked when the defendant negligently operated a valve,
releasing combustible chemicals that ignited. As stated in my concurrence in
McKesson v. Doe, 21-929 (La. 3/25/22), 339 So.3d 524, this element asks whether
the stated duty extends to support liabilit y for a particular circumstance. See
Louisiana Tort 19 Law at § 5.02[7]. The question is, “should this plaintiff recover
from this defendant for these particular damages that arose in this particular
manner?” Id. at § 3.05. This inquiry is generally not a policy question; rather it is a
matter of common sense, justice and fairness. Id. at 5.02[7]. At this stage of the
analysis, foreseeability and ease of association of the injury are relevant
considerations. Hill, 256 So. 2d at 622, citing Prosser, Law of Torts (3rd ed. 1964),
282.
The majority concludes, “Plaintiffs fall within the broad class of plaintiffs to
whom a duty is owed.” As a reference to legal cause, I disagree. It is not foreseeable
that the negligent act of opening the outlet valve instead of the inlet valve, which
caused pressurized chemicals to ignite, would cause a person with reasonable
sensibilities outside the exposure area of both the fire and any released chemicals to
suffer emotional distress. In this regard, one useful test applied by several common
law jurisdictions is the “zone of danger ” test, which, based on proximity, requires
either actual physical injury or an immediate risk of physical harm. As explained in
Gottshall, supra “those within the zone of danger of physical impact can recover for
fright, and those outside of it cannot.” Gottshall, 512 U.S. at 547-48, 114 S. Ct. at
2406. This test recognizes the common sense reality that t he closer a plaintiff is to
the cause of alleged harm, the more foreseeable that that person may suffer harm;
thus, that plaintiff is more likely to recover. While this test is not controlling in all

6

negligent infliction of emotional distress cases, where the class of plaintiffs allege
fear of som e physical contact or exp osure, the zone of danger test is helpful in
analyzing foreseeability.
In this case, I believe application of the zone of danger test is determinative.
No significant level of chemicals was detected after the explosion. No chemical was
shown to have reached any of the plaintiffs . The fire was neither large enough nor
of sufficient duration to physically affect plaintiffs. P laintiffs failed to show they
were in immediate risk of physical harm from the explosion. Because they were
outside the zone of danger, i t was not reasonably foreseeable that the defendant’s
breach would cause these plaintiffs harm. Because there is no ease of association
between the duty of the refinery to exercise reasonable care and the risk that
plaintiffs would develop gene ral anxiety , fear, or emotional distress, I find the
element of legal cause or scope of the duty is not met. Thus, plaintiffs’ claims fail.
Damages
Even if legal cause is established, I agree with the majority that the element
of damages is not met. “Serious” injury is required. The problem with the majority’s
approach is that “serious” is not defined; rather, it is left to be defined in an ad hoc
manner, determined largely through the eyes of the beholder. A more discriminating
test was signaled by the legislature and our prior jurisprudence, and I would adopt
it. Article 2315.6 states:
To recover for mental anguish or emotional distress under this Article,
the injured person must suffer such harm that one can reasonably expect
a person in the claimant’s position to suffer serious anguish or
emotional distress from the experience, and the claimant’s mental
anguish or emotional stress must be severe, debilitating, and
foreseeable.
(emphasis added). We need not guess how the legislature would define recoverable
mental or emotional distress absent physical injury. It has done so. It is “severe,
debilitating, and foreseeable.” The fact that Article 2315.6 is written for the class of

7

plaintiffs in a “bystander” case is immaterial. The damage is the same. The majority
makes no attempt to explain why the damage should be defined differently when a
bystander is not involved. I think it should not.
The legislature also requires foreseeability to recover under Article 2315.6 .
Again, there is no logical reason to reject foreseeability as a factor in determining
liability, particularly when it is already part of the legal analysis under duty-risk. See
supra. I would adopt the standard of “severe, debilitating, and foreseeable” to define
recoverable damages.6 Because there was no evidence that plaintiffs experienced
severe and debilitating emotional distress, I find they failed to satisfy the damage
element of the duty-risk analysis.
Conclusion
As it relates to bystander damages, the legislature limited the availability of
the tort by restricting the class of plaintiffs and defining the damages. The
legislature’s silence on the relevant restrictions for other claims for negligent
infliction of emotional distress puts the development of such restrictions within the
province of the judiciary. The duty-risk analysis is the analytical tool utilized by the
courts to determine whether a defendant should bear the cost of a plaintiff’s alleged
injury in given circumstances. Each of the five elements play an essential role in
making this determination. In this case, the elements of legal cause (scope of the
duty) and damages are determinative. Guided by legislative policy decisions, our
jurisprudence, and a strict application of the duty-risk test, I find the legal cause and

6 It is notable that the tort of intentional infliction of emotion distress requires “severe” injury. In
those cases, this court has stated, “The distress suffered must be such that no reasonable person
could be expected to endure it. Liability arises only where the mental suffering or anguish is
extreme.” White v. Monsanto Co., 585 So. 2d 1205, 1210 (La. 1991). Why should we require a
lesser standard for proving emotional harm caused by negligent acts than by intentional ones?

8

the damage elements were not met. Thu s, I concur in the reversal of plaintiffs’
awards.

S
UPREME COURT OF LOUISIANA
No
. 2022-CC-00469
B
RITTANY LYNN SPENCER
VS.
VALERO REFINING MERAUX, LLC
C/
W
No. 2022-CC-00539
KEVREION RAINES VS. VALERO REFINING MERAUX, L.L.C.
C/W
No. 2022-CC-00730
ROSEMARY GAGLIANO VS. VALERO REFINING MERAUX, L.L.C.
On Supervisory Writ to the 34th Judicial District Court, Parish of St. Bernard
MCCALLUM, J., concurs and assigns reasons.
I
concur in the result reached by the majority. I also agree with much of what
my concurring colleagues have said ; their analysis corresponds to my own in
reaching a result in this discrete case. Resolving disputes by deciding cases is this
Court’s foremost function. In doing so, we should bear in mind that in our civilian
tradition of jurisprudence constante, it is only of secondary importance that our
opinions may provide some guidance concerning the meaning or application of laws
in a prospective context.
Jurisprudence constante flows naturally from Louisiana’s written declaration
that judicial decisions are not a source of law ( See: Civil Code Articles 1-3). 1
1 Louisiana Civil Code article 1 provides two sources of law: “legislation and custom.” And,
while “[l]egislation is a solemn expression of legislative will” under La. C.C. art. 2, our code
contemplates custom as well, which “results from practice repeated for a long time and [which is]
generally accepted as having acquired the force of law.” La. C.C. art. 3. However, “[c]ustom may
not abrogate legislation.” Id.

Understandably, no system of written laws can formulate a specific remedy for every
possible future conundrum. As Portalis, the lead ing drafter of the Code Napoleon
noted, in foreseeing that “the code must constantly be applied to unexpected issues
and circumstances: A code, however complete it may seem, is hardly finished before
a thousand unexpected issues come to face the judge. . . . A. Levasseur, Code
Napoleon or Code Portalis? 43 Tul.L.Rev. 762, 769 (1 969) (Translation by Shael
Herman).” Reynolds v. Bordelon, 2014-2362, p. 12 (La. 6/30/15), 172 So. 3d 589,
599. When a perceived vacuum in the law exists, a judge must use a civilian
approach, ineradicably fixed in the Civil Code and statutory law, to rea ch a result
and render a decision.
However, our words are only “the law” as concerns the particular case under
consideration. The words of a literary critic may be instructive in understanding the
meaning of a poem, but they do not constitute the original work itself. Likewise ,
our opinions do not constitute the law, but reflect only our attempt to apply the
existing, written law to the facts of a case.
It is sufficient that we have resolved the litigation among these parties and
prevented a contrary result from becoming part of our jurisprudence constante. The
court must not allow horror vacui to coerce us to provide filler for every vacuum or
gap in the law. We need not create a new “judicial doctrine.” Filling these vacuums
is a legislative function that must not be usurped by judicial pronouncements.

SUPREME COURT OF LOUISIANA
No. 2022-CC-00469
BRITTANY LYNN SPENCER
VS.
VALERO REFINING MERAUX, LLC
C/W
No. 2022-CC-00539
KEVREION RAINES VS. VALERO REFINING MERAUX, L.L.C.
C/W
No. 2022-CC-00730
ROSEMARY GAGLIANO VS. VALERO REFINING MERAUX, L.L.C.
On Supervisory Writ to the 34th Judicial District Court, Parish of St. Bernard
GRIFFIN, J., additionally concurs and assigns reasons.
I agree with the majority that no plaintiff has put forth sufficient evidence that
indicates there was “an especial likelihood of genu ine and serious mental distress ”
that serves to guarantee a claim is not spurious. Moresi v. State Through Dep’t of
Wildlife & Fisheries, 567 So.2d 1081, 10 96. “Minimal and normal inconvenience
is not compensable.” Arco Oil & Gas Co., A Div. of Atlantic Richfield Co. v.
DeShazer, 98-1487, p. 5 (La. 1/20/99), 728 So.2d 841, 845. A plaintiff must show
some objective basis for their mental distress distinct from that which individuals
experience from the dangers inherent in the realities of modern life. See, e.g., Doerr
v. Mobil Oil Corp., 04-1789, pp. 10-11 (La.App. 4 Cir. 6/14/06), 935 So.2d 231, 238
(plaintiff’s claims of inconvenience and concerns over using tap water were
corroborated as it was undisputed that contaminants had been released in the water
supply); Cooper v. Christensen , 212 So.2d 154, 156 (La.App. 4 th Cir. 1968)

(accident aggravated plaintiff’s prior mental illness requiring brief hospitalization in
a mental institution and resulting in physical manifestations including headaches and
shortness of breath).