Geraldine Taylor, Herman Wilson, Alexander Wright, Individually and On Behalf of His Minor Children Andre Wright, Alexander Wright, II and Oscar Hubbard VS Novartis Crop Protection, Inc. and Ruby Lambert
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1689 GERALDINE TAYLOR HERMAN WILSON ALEXANDER WRIGHT INDIVIDUALLY y j R 1 AND ON BEHALF OF HIS MINOR CHILDREN ANDRE WRIGHT AND ALEXANDER WRIGHT II l AND OSCAR HUBBARD 1J C VERSUS NOVARTIS CROP PROTECTION INC AND RUDY LAMBERT On Appeal from the 18th udicial District Court Parish of Iberville Louisiana Docket No 53 Division A 908 Honorable James J Best udge Presiding Walter C Dumas Travis Dumas Turner Associates Law Firm LL C Attorneys for Appellants Plaintiffs Geraldine Taylor et al Baton Rouge LA ouis C LaCour r Kathleen F Drew Mark C Surprenant Attorneys for Appellees Defendants Novartis Crop Protection Inc Adams and Reese LLP and Rudy Lambert New Orleans LA and F Barry Marionneaux Marionneaux Marionneaux Plaquemine LA Henri Wolbrette III Arthur H Leith Kathleen A Manning Attorneys for Appellees Defendants E Merit Constructors Inc McGlinchey Stafford PLLC New Orleans LA BEFORE PARRO KUHN AND McDONALD JJ udgment rendered lJC d 4 Z PARRO Certain plaintiffs in this suit appeal a judgment of the trial court that granted the defendants motion for summary judgment and dismissed their claims for damages allegedly resulting from an ammonia release For the following reasons we a rm Factual Background and Procedural Historv On July 18 1999 at approximately 9 p ammonia was released for 00 m about 15 minutes at a facility in the St Gabriel area belonging to Norvartis Crop Protection Inc Norvartis now Syngenta Crop Protection Inc Approximately I I 826 individuals who allegedly present and owned property or were in I or I around the St Gabriel community filed a suit for damages against Norvartis and others collectively defendants In their petition the plaintiffs alleged that as a result of the release they suffered burning eyes itching burning skin breathing difficulties dizziness nausea diarrhea headaches anxiety and fear for their physical well being They also averred that the release caused considerable fear anguish discomfort and inconvenience to the people in the communities surrounding Norvartis facility The defendants filed a joint motion for dismissal and a motion for or summary judgment as to those plaintiffs who were located outside of any plume of exposure during the ammonia release ithe zone of danger The e experts in this case agreed that any person located outside a plume could not have been exposed to any amount of ammonia Only 29 of the plaintiffs were at some point in time within the area identified by the plaintiffs expert as the orange plume or within the plumes of exposure as shown in the air models created by the experts for the plaintiffs and defendants These air were models based on actual meteorological data generated by the Norvartis weather station at the time of the release In opposing the defendants motions the plaintiffs in question asserted 1 Initially the plaintiffs requested class certification but ultimately this matter was converted to a mass consolidation 2 that they did not make a claim for exposure but made a claim for emotional distress mental anguish and distress inconvenience and fear and fright as a result of the ammonia release relying on Moresi v State through Dept of Wildlife and Fisheries 567 So 1081 La 1990 2d The claim forms of the plaintiffs in question which were attached to their memorandum in opposition to the defendants motions reportedly stated that they suffered fear and fright as a result of the July 18 1999 ammonia leak In their memorandum the plaintiffs urged that they were in great fear for their personal safery based on a prior release of ammonia that occurred in the area on March 2 1999 which prompted the evacuation of a school and a televised alert announcement They asserted that t is no doubt that the unauthorized and negligent release here of the toxic and hazardous ammonia only a few months after another unauthorized and negligent release of ammonia created the special circumstances needed to demonstrate an especial likelihood of genuine and serious mental anguish emotional distress inconvenience and fear and fright Furthermore they contended that the law does not require that a person be within an exposure zone to bring a claim for mental anguish emotional distress inconvenience and fear and fright Based on these contentions the plaintiffs maintained that they have asserted a claim for fear and fright and that a genuine issue of material fact exists precluding summary judgment After considering the memoranda and attachments submitted by the parties the trial court granted the defendants motion for summary judgment adopting as its own the reasons set forth in the defendants memorandum Judgment was entered dismissing the claims of all of the plaintiffs who were located outside of any plume of exposure Those plaintiffs appeal Discussion Summary judgments are reviewed on appeal de novo with the appellate court using the same criteria that govern the trial court determination of s whether summary judgment is appropriate 3 Smith v Our Lady of the Lake Hospital Inc 2512 93 La 7 94 5 639 2d So 730 750 A motion for summary judgment is a procedural device used to avoid a full trial when scale there is no genuine issue of material fact Jarrell v Carter 632 So 321 323 2d La App 1st Cir 1993 writ denied 94 La 4 637 So 467 0700 94 29 2d The summary judgment procedure is favored and is designed to secure the just speedy and inexpensive determination of every action P C LSA art 2 A 966 Rambo v Walker 96 La App lst Cir 11 704 So 2538 97 7 2d 30 32 The motion should be granted only if the pleadings depositions answers to interrogatories and admissions on file together with any affidavits show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law LSA art 966 P C B When the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial the burden of showing that there is no genuine issue of material fact is on the party bringing the motion P C LSA art 966 Buck Run 2 C s Enterprises Inc v Mapp Const Inc 99 La App lst Cir 2 808 3054 O1 16 2d So 428 431 However on issues for which the moving party will not bear the burden of proof at trial the moving party burden of proof on the motion is s satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party claim action or s defense Thereafter the nonmoving party must produce factual support suffcient to establish that it will be able to satisfy its evidentiary burden of proof at trial failure to do so shows that there is no genuine issue of material fact LSA art 966 Clark v Favalora 98 La App ist Cir P C 2 C 1802 99 24 9 745 So 666 673 2d Since the plaintiffs in question asserted that they did not make a claim for damages due to exposure to the released ammonia we are only concerned with their claims for damages for fear fright emotional distress and or inconvenience even when a claimant was located outside any plume of 4 exposure In Moresi 567 So 2d 1081 the supreme court set forth the necessary elements to recover damages for negligently inflicted mental distress Generally a defendant will not be held liable for such damages under Louisiana law where its conduct was merely negligent and caused only mental or emotional disturbance unaccompanied by physical injury See Moresi 567 2d So at 1095 see also Bonnette v Conoco Inc 01 La 1 837 2767 03 28 2d So 1219 1235 In Bonnette the supreme court pointed out that in Moresi it had noted deviations from this general rule in various situations Bonnette 837 So at 1234 However the supreme court refused to allow recovery for 2d mental anguish absent a physical injury except in those cases involving special circumstances See Moresi 567 So at 1096 2d Only where there is an especial likelihood of genuine and serious mental distress arising from the special circumstances which serves as a guarantee that the claim is not spurious will recovery be permitted See Id Bonnette 837 So at 1235 2d see also Molden v Georgia Gulf Cor 465 F Supp 2d 606 618 M La D 2006 To prove the especial likelihood of genuine and serious mental distress under the facts of this case the plaintiffs must first demonstrate special circumstances More than minimal inconvenience and worry must be shown before damages may be awarded Bovd v Allied Signal Inc 07 La 1409 App lst Cir 10 997 So 111 122 The only special circumstances 08 17 2d urged by the plaintiffs in question was the prior release of ammonia that occurred in the area on March 2 1999 which prompted the evacuation of a school and a televised alert announcement This prior incident does not rise to the level of special circumstances sufficient to meet these plaintiffs burden of proof Moreover these plaintiffs in their memorandum expressed a generalized fear as a result of this release based on the prior release However they failed to produce any evidence in opposing the motion for summary judgment to show that they would be able to show at the trial of this matter that they 5 suffered from genuine and serious mental distress arising from this ammonia release that guarantees their claims for mental distress damages are not spurious Therefore summary judgment was properly granted in favor of the defendants with respect to those plaintiffs who were located outside of the plume of exposure Decree For the foregoing reasons the judgment of the trial court is affirmed Costs of this appeal are assessed to the appellants AFFIRMED Z Furthermore the facts of this case do not fall within any of the noted deviations from the general rule set forth in Moresi See Moresi 567 So at 1095 2d 96 6
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