Joshua L. Adams v. Union Pacific Railroad Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-904

JOSHUA L. ADAMS, ET AL.

VERSUS

UNION PACIFIC RAILROAD COMPANY

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 14-C-3165-B
HONORABLE A. GERARD CASWELL, DISTRICT JUDGE

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CANDYCE G. PERRET
JUDGE

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Court composed of D. Kent Savoie, Candyce G. Perret, and Jonathan W. Perry,
Judges.

AMENDED AND, AS AMENDED, AFFIRMED.

Kenneth Warren DeJean
Attorney at Law
Post Office Box 4235
Lafayette, LA 70502
(337) 235-5294
SPECIAL MASTER

William H. Howard, III
Alissa A. Allison
Kathlyn G. Perez
Laura E. Carlisle
Baker, Donelson, Bearman, Caldwell,
& Berkowitz, P.C.
201 St. Charles Avenue, Suite 3600
New Orleans, LA 70170
(504) 566-5200
COUNSEL FOR DEFENDANT/APPELLANT:
Union Pacific Railroad Company

H. Alston Johnson, III
Steven J. Levine
Paul LeBlancJr.
John B. Shortess
Phelps Dunbar, LLP
Post Office Box 4412
Baton Rouge, LA 70821-4412
(225) 346-0285
COUNSEL FOR DEFENDANT/APPELLANT:
Union Pacific Railroad Company

Antonio M. Clayton
Clayton, Frugé & Ward
3741 Highway 1 South
Port Allen, LA 70767
(225) 344-7000
COUNSEL FOR DEFENDANT/APPELLANT:
Union Pacific Railroad Company

Elena A. Pecoraro
Grant F. Freeman
Anna M. Grand
Pecoraro Law Firm
95 Woods Crossing, Suite 100
Lafayette, LA 70508
(337) 266-2233
COUNSEL FOR DEFENDANT/APPELLANT:
Union Pacific Railroad Company

D. Blayne Honeycutt
Colt J. Fore
Hannah Honeycutt Calandro
Fayard & Honeycutt
519 Florida Avenue, SW
Denham Springs, LA 70726
(225) 664-0304
COUNSEL FOR PLAINTIFF/APPELLEE:
Pauline Beam

PERRET, Judge.

This case is one of several stemming from a train derailment in Lawtell,

Louisiana (“Lawtell Derailment”) and those injuries suffered by members of the

surrounding community. Defendant-Appellant Union Pacific Railroad Company

(“Union Pacific”) appeals the trial court judgment that awarded Plaintiff, Pauline

Beam, damages in the amount of $4,500.00. For the following reasons, we amend

the award to $1,000.00 and affirm as amended.

FACTUAL AND PROCEDURAL BACKGROUND:

On August 4, 2013, a train derailed near Lawtell, Louisiana. Twenty-six

railcars1 derailed, causing lube oil, dodecanol, and sodium hydroxide solution (also

referred to as sulfidic caustic solution) to spill from three of the derailed train cars.

The derailment prompted a one-mile radius evacuation zone that remained in effect

until August 7, 2013. Many of those evacuated were directed to Evangeline

Downs and were housed there at the hotel for several days.

Multiple residents, including Plaintiff, Pauline Beam, filed suit on July 11,

2014, against Union Pacific. In the April 1, 2016 case management order, all cases

pending in the Louisiana Twenty-Seventh Judicial District Court related to the

Lawtell Derailment were consolidated into one division for the purpose of

determining liability. Union Pacific stipulated to liability on September 12, 2016,

but reserved its causation and damages defenses.

On February 8, 2017, the trial court appointed Kenneth DeJean as Special

Master to preside over the causation/damages trials of the pending claims pursuant

1
Union Pacific’s brief refers to only twenty-three train cars derailing. However, the
evidence suggests that an updated report from Union Pacific indicated that twenty-six train cars
derailed.

to La.R.S. 13:4165. 2 The cases were not consolidated and, therefore, each

plaintiff’s case was tried separately and resulted in separate judgments.

Ms. Beam presented her case-in-chief on June 26, 2017, with Union Pacific

presenting its case on June 27-28, 2017. The Special Master issued his report and

recommendation on Ms. Beam’s case on October 11, 2017. The Special Master’s

report summarized Ms. Beam’s testimony as follows: “The testimony establishes

that Ms. Beam is an 87-year-old woman who was in poor health at the time of the

derailment and was limited physically.” Ms. Beam did not testify and instead a

stipulation regarding her age and the length of time she was evacuated was entered

into the record for her case on June 27, 2017, specifically: “Ms. Beam is an 87

year old lady. We’re just going to stipulate she was evacuated for three days.

That’s the extent of her claim.” Ms. Beam’s daughter, Rebecca Miller, and son-in-

law, Robert Miller, with whom Ms. Beam lives, also testified that for the first night

of the evacuation the three of them went to a relative’s house where Ms. Beam

slept in a recliner.3 The second night, the three went to Evangeline Downs where

Ms. Beam slept in a bed.

The Special Master made the following factual findings:

1. A train derailment occurred on August 4, 2013 between the
time of 3:20pm and 3:30pm in Lawtell, Louisiana.

2. This derailment involved a train and tracks owned, operated and
maintained by the defendant, Union Pacific Railroad Company.

2
The appointment of a special master may be made “[p]ursuant to the inherent judicial
power of the court and upon its own motion and with the consent of all parties litigant[.]”
La.R.S. 13:4165(A). In such capacity, the special master “has and shall exercise the power to
regulate all proceedings before him and to do all acts and take all measures necessary or proper
for the efficient performance of his duties.” La.R.S. 13:4165(B). Such duties may include
making “findings of fact or conclusions of law[.]” La. R.S. 13:4165(C)(1).
3
This testimony was entered into Mr. Miller’s case, which is in Division A.

2

3. As a result of the derailment, Governor Bobby Jindal issued a
proclamation declaring the area a disaster area. This was
widely disseminated by the local media and news outlets.
4. The media and local news outlets reported on the derailment
and evacuation as well as the threat posed by the chemicals
being transported in the rail cars.
5. As a result of this derailment, chemicals were spilled (including
lube oil, dodecanol and sodium hydroxide) from some of the
derailed train cars.

6. The derailment and its resulting chemical spill and the threat of
the spill was the cause of an evacuation order being issued for
the residents located within an approximate one mile radius of
the derailment with the center of the radius being the derailment
site and thus potentially extending that distance from either end
of the derailment.

7. As a result of the derailment and resulting chemical spill and/or
threat of chemical spill, many of the residents in areas near the
derailment and evacuation area were displaced and were
required to be evacuated from their homes, property and/or
businesses. The result was widespread fear and fright and/or
mental anguish and anxiety for many residents within the
evacuation zone and extending to many residents located
outside of the evacuation zone based on the perception of some
residents of a real danger or threat of harm from the derailment
and the cargo and contents of some of the tank cars.
....

17. The evacuation order and associated evacuation of residents
was a direct result of the train derailment.

18. Pauline Beam was 87 years old at the time of the trial in this
matter.

19. The plaintiff, Pauline Beam, along with her daughter, Rebecca
Miller, and son-in-law, Robert Miller, were required to
evacuate from their home on the afternoon of the derailment as
a result of the derailment and ordered evacuation. They were
away from their home for two nights and three days.
20. The parties stipulated that if Ms. Beam were called, she would
testify that she was evacuated for three days.

The Special Master further concluded:

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[T]he evidence establishes a particular likelihood of genuine, serious
and causally connected inconvenience arising from the special
circumstances of the train derailment and resulting chemical spill, the
threat of a chemical spill and resulting evacuation. I find that the
‘special circumstances’ of a train derailment and resulting chemical
spill and uncertain threat of chemical spill and evacuation which
occurred in close proximity to plaintiff’s house are more serious and
distressful circumstances than the circumstances presented in the
cases of Moresi [v. State Through Department of Wildlife and
Fisheries, 567 So.2d 1081 (La.1990)] and Bonnette [v. Conoco, Inc.,
01-2767 (La. 1/28/03), 837 So.2d 1219].

Thereafter, the Special Master recommended an award of $4,500.00 for Ms.

Beam’s “Evacuation/Inconvenience.”

Union Pacific objected to the recommendation alleging that the Special

Master erred in finding that Louisiana law recognizes a cause of action for

negligent infliction of mere inconvenience in the absence of physical injury and

property damage. Union Pacific asserted that inconvenience damages are only

awarded as “add-ons,” and not in situations where the evacuated persons were

provided accommodations and suffered no wage or business loss.

After a hearing on July 27, 2018, regarding Union Pacific’s objection to the

Special Master’s recommendation, the trial court affirmed the Special Master’s

recommendation in favor of Ms. Beam, according to La.R.S. 13:4165C(3);

awarded a lump sum in the amount of $4,500.00, without specifying what damages

were included, plus judicial interest from the date the Petition was filed, July 11,

2014, until paid; and cast all costs, including Special Master’s fees, against Union

Pacific. The trial court’s judgment was signed September 6, 2018, and was

designated as final and immediately appealable.

On appeal, Union Pacific assigns two assignments of error:

1. The [trial court] erred in awarding damages to Plaintiff on the
basis of negligent infliction of inconvenience, absent any
accompanying physical injury or property damage.

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2. The [trial court] abused its discretion by awarding $4,500[.00]
for inconvenience on the basis of a roughly 48-hour
precautionary evacuation.

STANDARD OF REVIEW:

In this case, the trial judge sat as the trier of fact. 4 On appeal, factual

findings are not set aside absent manifest error or unless the trial court was clearly

wrong. Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993);

Rosell v. ESCO, 549 So.2d 840 (La.1989). To reverse a trial court’s factual

findings, the appellate court must apply a two-tiered test when reviewing the facts

and must find that (1) the record does not establish a reasonable factual basis for

the finding of the trial court, and (2) “the record establishes that the finding of the

trial court is clearly wrong (manifestly erroneous).” Bradford v. CITGO Petroleum

Corp., 17-296, p. 4 (La.App. 3 Cir. 1/10/18), 237 So.3d 648, 658-59, writ denied,

18-272 (La. 5/11/18), 241 So.3d 314. However, “[i]f the trial court’s findings are

reasonable in light of the record reviewed in its entirety, the appellate court may

not reverse.” Arabie v. CITGO Petroleum Corp., 10-2605, p. 19 (La. 3/13/12), 89

So.3d 307, 312. Thus, “when there are two permissible views of the evidence, the

factfinder’s choice between them cannot be manifestly erroneous.” Id. This court

must be cautious not to reweigh the evidence or to substitute its own factual

findings just because it would have decided the case differently. See generally

Housely v. Cerise, 579 So.2d 973 (La.1991).

4
Although under the authority of La.R.S. 13:4165 the district court empowered the
Special Master to make findings of fact and conclusions of law, the Louisiana constitution and
laws vest the judicial power in judges to make the final determinations of fact and conclusions of
law. See Bordelon v. La. Dep’t of Corrections, 398 So.2d 1103 (La.1981). In conformity with
that mandate, La.R.S. 13:4165(C)(3) provides, in pertinent part, “After a contradictory hearing,
the court may adopt the report, modify it, reject it in whole or in part, receive further evidence, or
recommit it with instructions.” In the present case, the trial court affirmed the Special Master’s
findings of fact and conclusions of law. Thus, the trial judge functioned as the ultimate
factfinder and adjudicator of the law in this case.

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Further, the trial court has much discretion in assessing general damages,

and an appellate court should not modify the award unless it is “beyond that which

a reasonable trier of fact could assess for the effects of the particular injury to the

particular plaintiff under the particular circumstances[.]” Youn v. Maritime

Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114

S.Ct. 1059 (1994). Only if the appellate court finds an abuse of discretion may it

examine prior awards of general damages to determine the amount the trier of fact

reasonably could award. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340

(La.1993). “In instances where the appellate court is compelled to modify awards,

the award will only be disturbed to the extent of lowering or raising an award to

the highest or lowest point which is reasonably within the discretion afforded the

trial court.” Id. at 1340.

DISCUSSION:

Before addressing the merits of Union Pacific’s assignments of error, it is

worth noting that a lump sum judgment of damages, as we have in this case, “is

presumed to award all items of damages claimed, and the appellant’s burden of

proving the fact finder clearly abused its great discretion is more difficult than

usual because the intention to award a specific amount for any particular item is

not readily ascertainable.” Boutte v. Nissan Motor Corp., 94-1470, p. 12 (La.App.

3 Cir. 9/13/95), 663 So.2d 154, 161.

In this case, Ms. Beam’s petition requests the following damages: costs of

medical treatment; past, present, and future lost wages; past, present, and future

mental anguish; loss of enjoyment of life; inconvenience; nuisance; medical

monitoring expenses; contamination to property; trespass; and “[o]ther damages

which will be shown at the trial of this matter.”

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Therefore, Boutte would suggest that we would have to find that the trial

court abused its discretion in awarding Ms. Beam $4,500.00 in total for her general

damages in order to reverse. Nonetheless, because the lump sum of $4,500.00

awarded for damages is the full amount that the Special Master recommended on

behalf of Ms. Beam, and there was a stipulation that the extent of Ms. Beam’s

claim is that she was evacuated for three days, we assume that the trial court’s

award is compensating Ms. Beam only for damages pertaining to her evacuation

and inconvenience.

In their assignments of error, Union Pacific argues that Louisiana courts

have not awarded damages for inconvenience absent mental or physical injury and

where reasonable accommodations were provided, and that Ms. Beam’s

entitlement to damages is not supported by the record. Additionally, Union Pacific

argues that the trial court abused its discretion by awarding Ms. Beam $4,500.00

for inconvenience.

In response, Ms. Beam argues that she suffered an injury in having to

evacuate her home for two nights and three days. The evacuation resulted in a

“temporary deprivation” of her “legally protected interest in her home” and,

therefore, she is entitled to inconvenience damages as general damages.

In McDonald v. Illinois Center Gulf Railroad Co., 546 So.2d 1287 (La.App.

1 Cir.), writs denied, 551 So.2d 1340 (La.1989), the first circuit agreed with

awarding damages for inconvenience, but disagreed with the amount, where the

plaintiffs were forced to evacuate following a train derailment that caused

explosions and fires which damaged their property. The explosion caused a fire

that blew out the front windows of the McDonalds’ business, in which Mr.

McDonald was working at the time. Mrs. McDonald heard the explosion but was

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at home when it occurred and did not witness the event. The McDonalds were

forced to flee their home and business for two weeks and had to live with relatives.

When they could return, the McDonalds spent several weeks cleaning up the mess

that was left behind.

On appeal, the first circuit found that an award for the McDonalds’

inconvenience was appropriate. Specifically, the first circuit stated:

The inconvenience he [Mr. McDonald] experienced during the
evacuation is also compensable, since it is directly related to the
derailment. Likewise, Mrs. McDonald is entitled to an award for
inconvenience during the two weeks she was forced to stay with
relatives during the evacuation. Both were forced out of their home
by the derailment and were, even for another two weeks, compelled to
spend all their time cleaning up their home and store.

McDonald, 546 So.2d at 1292 (citation omitted).

In In re New Orleans Train Car Leakage Fire Litigation, 00-1919 (La.App.

4 Cir. 4/20/05), 903 So.2d 9, writ denied, 05-1297 (La. 2/3/06), 922 So.2d 1171,

the fourth circuit affirmed the finding that damages for inconvenience were

appropriate for numerous plaintiffs injured by a leaking tank car fire. The

defendants only challenged one of the evacuation/inconvenience awards, that of

Jacqueline Thomas. Ms. Thomas “was awarded $60,000.00 for physical pain and

suffering, $25,000.00 for mental anguish, and $15,000.00 for

evacuation/inconvenience.” Id. at 14. The defendants challenged the entirety of

her award as being unsupported. Not only did Ms. Thomas experience physical

symptoms, she was elderly and caring for five of her grandchildren. She, along

with the children, evacuated to an overcrowded shelter that was unsanitary. She

did not have time to pack extra clothes and, in fact, continued to wear a shirt

soaked with urine because she did not have enough diapers for the baby. When

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Ms. Thomas returned home, she had to clean the entire house, wash all the clothes,

and throw away all the food. The appellate court affirmed the award.

In England v. Fifth Louisiana Levee District, 49,795 (La.App. 2 Cir. 6/3/15),

167 So.3d 1105, the second circuit awarded damages for the plaintiffs’ loss of use

of property. The second circuit awarded $50.00 per day for ten days of

inconvenience due to a contaminated water supply plus an additional $100.00 for

direct expenses for the cost of additional water supplies. The England plaintiffs

were forced to make trips to laundry facilities, daily trips to bathe at friends’

homes, and trips to purchase bottled water. The second circuit specifically stated

that “loss of use of property allows for economic recovery in tort.” Id. at 1113.

The evidence in the record in Ms. Beam’s case to support an award for

inconvenience is the stipulation that Ms. Beam was evacuated for two nights and

three days and the testimony of her daughter and son-in-law that she had to sleep in

a recliner the first night. Based on these facts, we cannot say that the trial court

erred in awarding damages for evacuation/inconvenience to Ms. Beam.

However, as alternatively argued by Union Pacific, we do find that the trial

court abused its discretion by awarding Ms. Beam $4,500.00 for

evacuation/inconvenience where Union Pacific paid for her hotel and food costs

during the second night of the evacuation and the evacuation only lasted two days.

In support of its argument, Union Pacific cites to McDonald and England to

suggest that the highest reasonable award justified by this record is $50.00 per day.

In McDonald, 546 So.2d 1287, the first circuit concluded that the highest

reasonable award permissible for inconvenience, where the plaintiffs were forced

to evacuate for two weeks and experienced two weeks of clean-up following a train

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derailment that caused explosions and fires which damaged their property, was

$5,000.00 per person for evacuation and inconvenience.

In England, 167 So.3d 1105, the second circuit awarded $50.00 per day for

ten days for inconvenience damages due to the contaminated water supply plus an

additional $100.00 for direct expenses for the cost of additional water supplies.

The plaintiffs in England were not evacuated but were deprived of the use of water

in their homes.

Additionally, the fourth circuit in Adams v. CSX Railroads, 01-114 (La.App.

4 Cir. 4/20/05), 902 So.2d 413, also reviewed the same leaking tank car fire

involved in In re New Orleans Train Car Leakage Fire Litigation, 903 So.2d 9.

Several plaintiffs sought review of the trial court’s denial of their motion for new

trial in which they alleged there was no factual basis to support the low damages

awarded by the jury. On appeal, only one plaintiff’s evacuation/inconvenience

damage amount was challenged, that of Sandra August, who received $200.00 for

physical pain and suffering as well as $500 for evacuation/inconvenience.5 Ms.

August evacuated her home in the morning and returned home the following day.

She suffered from “eye, nose and throat irritation for two days[.]” Id. at 417. The

fourth circuit found no abuse in discretion of the $500 awarded for Ms. August’s

evacuation and inconvenience.

In this case, the only inconvenience suffered by Ms. Beam was having to

leave her home for forty-eight hours, during which she slept on her grandson’s

recliner for the first night. There is no evidence that she had to endure any

5
Shunta Dickerson was awarded $100 for “evacuation expenses[,]” but those damages
were not listed as “evacuation/inconvenience” damages as were Ms. August’s damages. Adams,
902 So.2d at 417 (emphasis added).

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particular hardship, especially considering that Union Pacific paid all expenses for

room and board the second day/night.

Although the courts in In re New Orleans Train Car Leakage Fire Litigation

and McDonald support high awards for inconvenience damages, we find these

cases distinguishable based on the fact that the plaintiffs in those cases suffered

either physical injuries and/or property damages along with their inconvenience

damages.

However, we also find the England case distinguishable from the facts of

this case because unlike Ms. Beam, the plaintiffs in England were not asked to

evacuate and were not displaced from their homes. Instead, Ms. Beam was

deprived of the full use and convenience of her home during the evacuation.

Accordingly, based on these facts where Ms. Beam was provided all

expenses for room and board and did not suffer any physical or property damage,

we find that the trial court’s $4,500.00 award for evacuation/inconvenience was

beyond that which a reasonable trier of fact could assess for inconvenience

damages to Ms. Beam.

Thus, we hereby amend the evacuation/inconvenience damage award to the

highest damage award for inconvenience supported by the record, $500.00 per day.

Ms. Beam was evacuated sometime after 3:30 p.m. on August 4, 2013, the

approximate time of the derailment. She spent one night at her grandson’s house

and one night at Evangeline Downs before she was permitted to return to her

home. Thus, we hereby amend the evacuation/inconvenience award to $1,000.00.

CONCLUSION:

After a review of the record, we amend the trial court’s

evacuation/inconvenience damage award to $1,000.00 in general damages to

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Pauline Beam and against Union Pacific Railroad Company. Costs of this appeal

are assessed one-half to Pauline Beam and one-half to Union Pacific.

AMENDED AND, AS AMENDED, AFFIRMED.

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