author: Welch, J.

text:
    Andre AARON, et al. v. EXXON MOBIL CORPORATION
    Andre Aaron, et al. v. ExxonMobil, Corporation f/k/a Exxon Company U.S.A., Exxon Corporation
    Gloria H. Poole, et al. v. ExxonMobil, Corporation f/k/a Exxon Company U.S.A., Exxon Corporation
    Andre Aaron, et al. v. ExxonMobil, Corporation f/k/a Exxon Company U.S.A., Exxon Corporation
    Ayanna Abadie, et al. v. ExxonMobil, Corporation f/k/a Exxon Company U.S.A., Exxon Corporation
    Adelean Mcalope, et al. v. ExxonMobil, Corporation f/k/a Exxon Company U.S.A., Exxon Corporation
    2018 CW 0476
    Court of Appeal of Louisiana, First Circuit.
    JUDGMENT RENDERED: DECEMBER 27, 2018
    Martin A. Stern, Raymond P. Ward, New Orleans, Louisiana, Kellen J. Mathews, Baton Rouge, Louisiana, Michael P. Cash, Wade T. Howard, Houston, Texas, Attorneys for Relator, Defendant - ExxonMobil, Corporation f/k/a Exxon Company, U.S.A., Exxon Corporation
    Calvin C. Fayard, Jr., Denham Springs, Louisiana, Lewis O. Unglesby, Baton Rouge, Louisiana, Rebecca Cunard, Baton Rouge, Louisiana, Roy F. Amedee, Jr., New Orleans, Louisiana, David S. Scalia, River Ridge, Louisiana, Attorneys for Respondents, Plaintiffs - Andre Aaron, et al., Ayanna Abadie, et al., Adelean, McAlope, et al., and Gloria H., Poole, et al.
    Before: Pettigrew, Welch, and Chutz, JJ.
   Welch, J.

This matter comes to us on transfer from the Louisiana Supreme Court for briefing, argument, and full opinion under this Court's supervisory jurisdiction. See Aaron v. Exxon Mobil Corp. , 2018-0009 (La. 3/9/18), 237 So.3d 1184. This is a mass tort suit involving several consolidated lawsuits filed in Baton Rouge City Court ("city court") that were appealed to the Nineteenth Judicial District Court ("19th JDC"). The litigation arises out of a fire that occurred at the ExxonMobil, Corporation ("Exxon") refinery in Baton Rouge on August 2, 1993. This appeal involves six plaintiffs who proceeded to trial together ("trial plaintiffs"). The defendant, Exxon, appeals the city court's May 1, 2017 judgment after remand, finding that Exxon was 100% at fault and liable to the trial plaintiffs for damages.

For the reasons set forth more fully below, we find that the city court did not manifestly err in allocating 100% fault to Exxon after remand. We further find that the city court did not abuse its vast discretion in fixing the amount of general damages awarded. Accordingly, the writ application is denied; the judgment after remand is affirmed.

BACKGROUND

This case arises from a pipe failure and rupture that resulted in a fire at the Exxon refinery in Baton Rouge on August 2, 1993, at approximately 4:15 a.m. The fire occurred in the East Coker Unit of the Exxon refinery-one of three coker units at the refinery-which converted high-sulfur, heavy crude oil into gasoline, diesel, and jet fuel. A carbon steel piping elbow that was a component part of the East Coker Unit ruptured, causing an explosion. Two minutes later, escaping hydrocarbon gases ignited, causing a fire. Six minutes later, a nearby flushing oil line ruptured, releasing additional fuel for the fire. Around 6:40 a.m., the main part of the fire was extinguished. Smaller fires, producing no visible smoke, continued to bum until around 8:30 a.m. Two Exxon employees died as a result of the explosion and fire.

The Exxon refinery is located on Scenic Highway in Baton Rouge, directly across the street from a densely populated residential community. During the two and a half hours the main fire burned, the fire produced a thick smoke plume, which moved in an easterly direction across the community adjacent to the facility. The explosion and fire also released ash and debris. The debris, including asbestos particles, was spewed from the East Coker Unit and scattered about the residential community located across the street from the refinery. The ash and debris landed on the people and property of the community.

Law enforcement and fire department personnel, other emergency agencies, and stakeholders in the community, as well as Exxon staff, merged into the affected area and surrounding properties with emergency vehicles and equipment. Exxon dispatched personnel to conduct air sampling both inside the facility and in the surrounding community during the time of the fire. Exxon also set up several fixed-station monitors that picked up trace amounts of hydrogen sulfide and carbon monoxide near the refinery's east gate. The only substance picked up at measurable levels was carbon particulate-smoke.

First responders clad in white "space type" protective jumpsuits inspected the community and retrieved contaminated debris and postulate matter in the atmosphere that had been scattered by the explosion and resulting fire. Residents were notified to "shelter in place" and turn off their air conditioning units and refrain from touching debris that had landed on and covered their property.

The East Coker Unit was designed, constructed, and inspected by Foster Wheeler Corporation ("Foster Wheeler") in 1962 and 1963. Following the completion of construction, Humble Oil and Refining Company ("Humble Oil"), Exxon's predecessor in interest, accepted the work and began operation of the East Coker Unit in 1963, which continued until its destruction by the fire on August 2, 1993.

The East Coker Unit was a typical four drum coker unit that contained approximately forty-one miles of pipe and tubing and approximately ten thousand connecting elbows. The undisputed cause of the fire was the failure of a six-inch, forty-five degree carbon steel piping elbow in the pipe spool for Pump P-2A/B discharge piping, located in the East Coker Unit, which was installed as part of the unit's original construction, thirty years prior to the fire. According to Foster Wheeler's design specifications, the piping elbow that ruptured and caused the fire should have been manufactured of steel containing five percent chromium and one-half percent molybdenum. The chrome-moly material, unlike carbon steel, resists corrosion caused by the sulfur in heavy crude oil. Contrary to its own design specifications, however, the piping elbow installed by Foster Wheeler was manufactured of carbon steel, a material more susceptible to corrosion than chrome-moly steel.

The piping in the East Coker Unit was installed by local pipe fitters subcontracted by Foster Wheeler. After installation, the piping circuit containing the incorrect carbon steel elbow was covered with asbestos insulation, and once covered, was hidden from visual inspection. The carbon steel elbow performed for thirty years, until it ruptured on August 2, 1993, causing the explosion and fire that destroyed the East Coker Unit.

PROCEDURAL HISTORY

Litigation resulting from the explosion and fire was brought in both federal and state courts. A putative class action was originally filed in the 19th JDC against Exxon and Foster Wheeler, which was removed to the United States District Court for the Middle District of Louisiana. The putative class members sought damages allegedly sustained as a result of the pipe rupture and resulting fire. In that same matter, Exxon asserted a third-party claim against Foster Wheeler based on Foster Wheeler's design and construction of the East Coker Unit. Ultimately, the federal district court dismissed the plaintiffs' claims against Foster Wheeler and also dismissed Exxon's third-party claim against Foster Wheeler on the grounds of the ten-year peremptive period applicable to claims based on construction. See La. R.S. 9:2772 (prior to its amendment by 1999 La. Acts No. 1024, § 1 (eff. Aug. 15, 1999) ). A companion suit was filed in the 19th JDC regarding Exxon's claims against Foster Wheeler, wherein the district court similarly dismissed Exxon's claims against Foster Wheeler on the grounds of the ten-year peremptive period applicable to claims based on construction.

With Exxon as the sole remaining defendant, the federal district court denied class certification, and following a bench trial, rendered judgment in favor of Exxon and against the plaintiffs, holding that Exxon was not liable to the plaintiffs for their alleged injuries under either a strict liability theory or negligence theory. The United States Court of Appeals for the Fifth Circuit affirmed.

Baton Rouge City Court Litigation

On April 20, 2007-prior to the handing down of the aforementioned decision by the federal district court-approximately 8,500 plaintiffs who lived near the Exxon refinery at the time of the explosion and resulting fire filed three mass tort lawsuits against Exxon in city court, which are the subject of the instant supervisory writ application. The first suit was filed by 4,172 plaintiffs against Exxon. The second suit was filed by 2,939 plaintiffs against Exxon. The third suit was filed on behalf of 1,450 minor plaintiffs against Exxon. The plaintiffs alleged that Exxon was liable under theories of negligence pursuant to La. C.C. art. 2315 and strict liability pursuant to La. C.C. arts. 2317 and 2322 for all of their injuries and damages caused by the explosion and fire. The plaintiffs contended that they suffered damages including "personal injury, past and future pain and suffering, past and future medical expenses, mental anguish and emotional distress, damage to their homes and structures, diminution in the value of their property, other economic damages, loss of society and quality of life, loss of community[,] and other damages to be set forth and established" due to Exxon's negligence. The plaintiffs also alleged that the "explosion and fire caused the release of noxious and toxic chemicals, which permeated the atmosphere over the area adjacent to the Exxon refinery site and into the surrounding communities," which caused injuries to the plaintiffs including "considerable fear, mental anguish, uncertainty[,] and inconvenience of the populace of the communities surrounding the refinery site...." The city court consolidated the three suits and transferred the matter to Division D. On December 2 and 3, 2013, the city court conducted a trial on the claims of six plaintiffs out of the thousands who filed suit against Exxon. The city court heard closing arguments on January 31, 2014. After closing arguments, the city court announced its ruling, holding that the trial plaintiffs proved their claims of negligence pursuant to La. C.C. art. 2315, and rendered judgment in favor of the trial plaintiffs, awarding damages as follows: (1) $7,500.00 to Gloria H. Poole; (2) $7,500.00 to Patricia A. Brue; (3) $7,500.00 to Dorothy J. Browder; (4) $4,000.00 to Barbara W. Burks; (5) $7,500.00 to Doris J. Vondo; and (6) $7,500.00 to D'Ann L. Scott. The city court further held that the trial plaintiffs failed to prove their claims of strict liability pursuant to La. C.C. arts. 2317 and 2322. On February 24, 2014, the city court signed a partial final judgment in accordance with its oral ruling. The city court issued written reasons for judgment on March 14, 2014, which stated, in pertinent part:

The Court[,] having reviewed the exhibits and briefs and heard the evidence, finds that [Exxon] had a duty to maintain and operate the Baton Rouge refinery in a manner that would not endanger the health of the local residents. [Exxon] breached this duty. The Court also finds that [Exxon's] breach was the proximate cause of the Trial Plaintiff[s'] damages and that the Trial Plaintiffs were within the zone of danger. Accordingly, this Court finds [Exxon] liable to the Trial Plaintiffs for their claim[s] of negligence pursuant to La. Civ. Code Ann. Art. 2315. The Court also finds that the Trial Plaintiffs failed to prove their claims of strict liability pursuant to La. Civ. Code Ann. Art[s.] 2317 and 2322.

Appeals to the 19th JDC

Exxon appealed from the portion of the city court's February 24, 2014 judgment finding Exxon negligent and awarding damages to the trial plaintiffs. Exxon argued that the city court erred in failing to assign any fault to Foster Wheeler and in awarding excessive damages to the plaintiffs, who they argued suffered minor symptoms or no symptoms at all and who never sought medical attention.

The trial plaintiffs also appealed from the portion of the city court's February 24, 2014 judgment finding that Exxon was not strictly liable. The 19th JDC consolidated Exxon's appeal with the trial plaintiffs' appeal and transferred the matter to Section 25, Division O.

The 19th JDC held oral arguments on the appeals on November 10, 2014. The 19th JDC orally rendered judgment affirming the city court's judgment on December 10, 2014, and issued written reasons on January 7, 2015, which stated, in pertinent part:

Whereupon , the Court found that the City Court, the trial court in this matter, did not abuse [its] discretion. For these reasons[,] the Court affirmed the judgment from Baton Rouge City Court on December 10, 2014.
The Court further adopts the Appellee's brief as its written reasons.

The 19th JDC signed a judgment in accordance therewith on January 22, 2015.

Review by the First Circuit and Supreme Court

Thereafter, Exxon applied for supervisory and/or remedial writs with the Louisiana Supreme Court. The supreme court granted writs and remanded the matter to this Court for consideration under our supervisory jurisdiction. See Aaron v. Exxon Mobil Corp. , 2015-0045 (La. 4/10/15), 163 So.3d 800.

On remand, this Court issued the following action:

WRIT GRANTED . This matter is remanded to the City Court of Baton Rouge for a determination of whether a stipulation between the parties or other evidence, including a judicial admission, was introduced as to whether Foster Wheeler Corporation installed the elbow pipe that ruptured in the East Coker Unit, whether that pipe was different from that stated in the design and building specifications for that unit, and whether the ruptured pipe caused or contributed to the alleged injuries suffered by the plaintiffs. Based on the record, the trial court should make a determination of whether Foster Wheeler Corporation was at fault, and if so, the percentage of fault attributable to Foster Wheeler Corporation. See La. Civ. Code arts. 2323 and 2324. See also La. Code Civ. P. arts. 1812(C) and 1917(B).
GH
WRC
JMG

Aaron v. ExxonMobil, Corp. , 2015-1829 (La. App. 1 Cir. 3/08/16) (unpublished writ action ).

Thereafter, Exxon applied for supervisory and/or remedial writs in the Louisiana Supreme Court, which issued the following action:

Granted. The judgment of the court of appeal is amended to provide that the city court should also reconsider its damage awards in this matter pursuant to the standards set forth in Howard v. Union Carbide Corp., 09-2750 (La. 10/19/10), 50 So.3d 1251.
SJC
BJJ
JLW
GGG
MRC
JDH
KNOLL, J., dissents and assigns reasons. ["I would deny the writ for the reasons I assigned in my dissent in Howard v. Union [Carbide] Corporation , 09-2750, pp. 1-3 (La. 10/19/10), 50 So.3d 1251, 1258-59."]

Aaron v. Exxon Mobil Corp. , 2016-1072 (La. 9/16/16), 201 So.3d 241.

Based on the directives of this Court and the supreme court, the city court was charged with: 1) reviewing the testimony and evidence received at the trial of this matter to determine whether, based on the record, Foster Wheeler was at fault, and if so, the percentage of fault attributable to Foster Wheeler; and 2) reviewing the testimony and evidence received at the trial of this matter and reconsidering its damage awards pursuant to Howard v. Union Carbide Corp. , 2009-2750 (La. 10/19/10), 50 So.3d 1251. Neither this Court nor the supreme court ordered a new trial for the receipt of additional evidence and testimony.

Remand to City Court

Following remand, the city court heard oral arguments on January 6, 2017. Thereafter, the city court signed a judgment after remand on May 1, 2017, which vacated and amended, in part, its prior February 24, 2014 judgment. The city court's May 1, 2017 judgment after remand decreed that Exxon was 100% at fault. The judgment after remand further vacated and amended the previous damage awards to the trial plaintiffs as follows: (1) $2,500.00 to Gloria H. Poole; (2) $2,500.00 to Patricia A. Brue; (3) $2,500.00 to Dorothy J. Browder; (4) $1,250.00 to Barbara W. Burks; (5) $2,500.00 to Doris J. Vondo; and (6) $2,500.00 to D'Ann L. Scott. The city court also issued written reasons for judgment on May 1, 2017.

Review by the First Circuit and Supreme Court Following Remand

Exxon appealed the city court's May 1, 2017 judgment after remand to the 19th JDC. After briefing and oral arguments, which were held on November 9, 2017, the 19th JDC took the matter under advisement. Thereafter, on December 4, 2017, the 19th JDC affirmed the city court's May 1, 2017 judgment after remand and adopted the brief of the trial plaintiffs as its written reasons for judgment. On January 9, 2018, the 19th JDC signed a judgment in accordance with its oral ruling.

Thereafter, Exxon applied for supervisory and/or remedial writs in the Louisiana Supreme Court, which issued the following action:

Granted. See per curiam. ["PER CURIAM . Writ granted for the sole purpose of transferring the application to the court of appeal for briefing, argument and full opinion under its supervisory jurisdiction. La. Const. art. V, § 5 (A); La. Const. art. V, § 10 (A)."]
SJC
MRC
JTG
JOHNSON, C.J., would deny.
WEIMER, J., would grant and docket.
GUIDRY, J., additionally concurs and assigns reasons. ["Review on remand should ensure strict compliance with this Court's earlier order in this case. Aaron v. Ex[x]on Mobil Corp. , 16-1072 (La. 9/1[6]/[16] ), 201 So.3d 241."]
HUGHES, J., would deny.

Aaron v. Exxon Mobil Corp. , 2018-0009 (La. 3/9/18), 237 So.3d 1184.

Following the transfer of the matter to this Court, the parties timely submitted briefs, and oral arguments were held on September 25, 2018. We now consider the merits of the appeal as an application for supervisory writs pursuant to our supervisory jurisdiction. See La. Const. art. V, §§ 5 (A), 10 (A), and 16 (B); see also Miazza , 34 So.3d at 849 ; Caire , 379 So.2d at 1057 ; Tower Credit, Inc. , 194 So.3d at 64.

LAW AND DISCUSSION

In reviewing the city court's judgment after remand, the 19th JDC functioned as an appellate court. Thus, this Court owes no deference to the 19th JDC's factual findings or legal conclusions, just as the supreme court owes no deference to the state's courts of appeal. See La. C.C.P. art. 5001(B) ; cf. Carpenter v. State, Dep't of Health and Hosps. , 2005-1904 (La. App. 1 Cir. 9/20/06), 944 So.2d 604, 608 n.2, writ denied, 2006-2804 (La. 1/26/07), 948 So.2d 174. Accordingly, this Court will conduct its own independent review of the record, applying the appropriate standards of review.

The appropriate standard for appellate review in this case is the manifest error-clearly wrong standard, which precludes the setting aside of the city court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. See Hayes Fund for the First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mt., LLC , 2014-2592 (La. 12/8/15), 193 So.3d 1110, 1115. It is well settled that a court of appeal may not set aside a fact-finder's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." See Stobart v. State through Dep't of Transp. and Dev. , 617 So.2d 880, 882 (La. 1993). A reviewing court may not merely decide if it would have found the facts of the case differently. Hall v. Folger Coffee Co. , 2003-1734 (La. 4/14/04), 874 So.2d 90, 98. The Supreme Court has proclaimed a two-part test for the reversal of a fact-finder's determinations: (1) the reviewing court must find from the record that a reasonable factual basis does not exist for the finding of the trier-of-fact, and (2) the reviewing court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). See Lomont v. Myer-Bennett, 2014-2483 (La. 6/30/15), 172 So.3d 620, 633.

Notably, reasonable persons frequently can and do disagree, but where there are two permissible views of the evidence, the fact-finder's choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). In this regard, the reviewing court must give great weight to factual conclusions of the trier-of-fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the reviewing court may feel that its own evaluations and inferences are as reasonable. See Perkins v. Entergy Corp. , 2000-1372 (La. 3/23/01), 782 So.2d 606, 612-13. Accordingly, on review, the court must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently, and when findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier-of-fact's findings. Rosell , 549 So.2d at 844-45.

Although deference to the fact-finder should be accorded, the Louisiana Supreme Court has instructed that a reviewing court has a constitutional responsibility to review the entire record and to determine whether, as a whole, it supports the judgment rendered by the fact-finding tribunal. See Ambrose v. New Orleans Police Dep't Ambulance Serv. , 93-3099 (La. 7/5/94), 639 So.2d 216, 221. Nevertheless, even though we are required to give deference to the trier-of-fact's findings, we are not obliged to "rubberstamp" all factual determinations made by the fact-finding tribunal. See Lomont , 172 So.3d at 633. The issue to be resolved on review is not whether the fact-finder was right or wrong, but whether the fact-finder's conclusion was a reasonable one. See Rosell , 549 So.2d at 844.

This matter consisted of four days of live testimony in which the record undisputedly shows that the city court was actively involved and participated. In our review, we are faced with a cold transcript consisting of thirty volumes. We are tasked with reviewing the city court's factual findings for error, all the while paying heed to the fact-finder's broad discretion in credibility determinations.

Assignment of Error No. 1: Allocation of Fault

In their first assignment of error, Exxon argues that the city court erred in imposing 100% fault on Exxon and failing to impose any fault on Foster Wheeler, a non-party to this litigation. Exxon argues that Foster Wheeler was solely responsible for creating the hazard that resulted in the fire. The court is required to determine the fault of all persons causing or contributing to injury, death, or loss, regardless of whether the person is a party to the action or a nonparty, and regardless of the theory of liability asserted against that party. See La. C.C. art. 2323. Where non-parties are claimed by a defendant to be at fault in causing damages to the plaintiff, the burden shifts to the defendant to show the fault of the non-party by a preponderance of the evidence. See La. C.C.P. arts. 1917(B) and 1812(C) ; see also Flipping v. JWH Properties, LLC , 50,648 (La. App. 2 Cir. 6/8/16), 196 So.3d 149, 157-58 ; Parker v. Templet , 2011-0095 (La. App. 1 Cir. 2/10/12), 2012 WL 601843, at *2 (unpublished ). Proof by a preponderance of evidence means that the fact or cause sought to be proved is more probable than not. James v. McHenry , 36,098 (La. App. 2 Cir. 9/18/02), 828 So.2d 94, 95.

Following the initial trial, the city court rendered judgment in favor of the trial plaintiffs on their negligence claims, reasoning that "[Exxon] had a duty to maintain and operate the Baton Rouge refinery in a manner that would not endanger the health of the local residents. [Exxon] breached this duty ... [, and] [Exxon's] breach was the proximate cause of the Trial Plaintiff[s'] damages...." After directed by this Court to consider whether Foster Wheeler was at fault for the failure of the piping elbow and the resulting fire, and if so, the percentage of fault attributable to Foster Wheeler, the city court rendered judgment after remand, decreeing "[Exxon] is found to be 100[%] at fault in this action."

On appeal, Exxon argues that Foster Wheeler, not Exxon, was solely responsible for the design, construction, and testing of the component parts of the East Coker Unit, making Foster Wheeler solely at fault for installing a piping elbow made of the wrong material. Exxon argues that it had no actual knowledge that Foster Wheeler had installed a piping elbow made of the wrong material. Contrary to the plaintiffs' argument, Exxon further contends it should not have discovered the carbon steel piping elbow negligently installed by Foster Wheeler by conducting positive material identification ("PMI") tests on every pipe and fitting in every coker unit because such an expectation is unreasonable. Exxon further avers that its program for testing pipe-wall thickness likewise met or exceeded industry standards. Finally, Exxon avers that the majority of, if not all of, the fault should be placed on Foster Wheeler because between the owner of a thing containing a hazard and the party who created the hazard, the majority of fault should be allocated to the party who created the hazard.

The city court provided eleven pages of detailed, thorough reasons for judgment after remand, discussing the allocation of 100% of the fault in this action to Exxon and its application of the Watson factors to the facts of this case. See Watson v. State Farm Fire and Casualty Insurance Co. , 469 So.2d 967, 974 (La. 1985). Therein, the city court stated:

The sole cause of the explosion was [Exxon's] failure to inspect both before [it] took control of the Unit and after [it] took control of the Unit, and down through the years.
It is undisputed that [Exxon] and its predecessor in interest, Humble Oil, contracted with Foster Wheeler Corporation to design and build the East Coker Unit at the [Exxon] Plant in Baton Rouge, Louisiana on Scenic Highway. [Exxon] accepted the unit without inspection and, as owner and operator of the unit, placed the Unit in operation. As to the design of the unit by Foster Wheeler, it included the use of [a] 5 Chrome ½ moly steel elbow, as opposed to the pipe elbow composed of Carbon steel, which was mistakenly installed.
From the testimony of the witnesses and experts used by [Exxon] and the Plaintiffs, Exxon was aware of their vulnerability as to the carbon steel elbow piping having been installed by the contractor, Foster Wheeler, and not the design specific, 5 Chrome, ½ moly steel elbow. Notwithstanding, [Exxon] never corrected the serious weakness in the system nor did they require Foster Wheeler to correct it. The correction should have been possible during any plant shutdown, or even without the shutdown of the Unit. This was not done, and some 30 years later on August 2, 1993, an explosion and fire occurred destroying the Unit, causing death and injury within the plant, and seriously and adversely affecting the adjacent communities.

The city court held that Foster Wheeler was not negligent, concluding "that [Foster Wheeler] has no complicity in the events that ultimately caused the piping to rupture." Following our review of the record, including the city court's extensive reasons for judgment after remand, we conclude that Exxon failed to demonstrate-by a preponderance of the evidence-that Foster Wheeler's negligence contributed to the plaintiffs' injuries. See La. C.C.P. arts. 1917(B) and 1812(C) ; see also Flipping , 196 So.3d at 157-58 ; Parker , 2012 WL 601843, at *2.

We proceed to review the record for manifest error on the city court's allocation of fault. The allocation of fault is within the sound discretion of the trier-of-fact and will not be disturbed on appeal in the absence of manifest error. Duncan v. Kansas City Southern Railway Co. , 2000-0066 (La. 10/30/00), 773 So.2d 670, 680-81, cert. dismissed, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001) ; Edmond v. Cherokee Insurance Company , 2014-1509 (La. App. 1 Cir. 4/24/15), 170 So.3d 1029, 1036-37. If an appellate court finds a "clearly wrong" allocation of fault, it should adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively, which is reasonably within the fact-finder's discretion. Hebert v. Rapides Parish Police Jury , 2006-2001 (La. 4/11/07), 974 So.2d 635, 654-55, on reh'g (Jan. 16, 2008). The Louisiana Supreme Court has instructed that in allocating fault between the parties, the trier-of-fact is bound to consider the nature of each party's wrongful conduct and the extent of the causal relationship between that conduct and the damages claimed. Watson , 469 So.2d at 974. In assessing the nature of the parties' conduct, factors that may influence the degree of fault allocated include: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances that might require the actor to proceed in haste, without proper thought. Watson , 469 So.2d at 974 ; Goza v. Par. of W. Baton Rouge , 2008-0086 (La. App. 1 Cir. 5/5/09), 21 So.3d 320, 331, cert. denied, 560 U.S. 904, 130 S.Ct. 3277, 176 L.Ed.2d 1184 (2010). These factors also guide an appellate court's determination as to the highest or lowest percentage of fault that could reasonably be assessed to each party. Clement v. Frey , 95-1119 (La. 1/16/96), 666 So.2d 607, 611. We must be mindful that the allocation of fault is not an exact science, or the search for one precise ratio, but rather an acceptable range, and that any allocation by the fact-finder within that range cannot be "clearly wrong." See Hebert , 974 So.2d at 655 ; Clement , 666 So.2d at 611.

Considering the nature of each party's wrongful conduct and the extent of the causal relationship between that conduct and the damages claimed, we utilize the Watson factors to guide our determination as to the highest or lowest percentage of fault that could reasonably be assessed to each party. After reviewing the entire record, we find that the city court did not err in its allocation of 100% fault to Exxon.

Because the city court found that Foster Wheeler was not negligent, the city court did not consider Foster Wheeler in its allocation of fault. See Duzon v. Stallworth , 2001-1187 (La. App. 1 Cir. 12/11/02), 866 So.2d 837, 854, writ denied sub nom., Duzon ex rel. Cmty. of Acquets and Gains v. Stallworth, 2003-0589 (La. 5/2/03), 842 So.2d 1101, and writ denied, 2003-0605 (La. 5/2/03), 842 So.2d 1110. As to the fault allocated to Exxon, the city court considered the Watson factors and found that Exxon's conduct involved an awareness of the danger and how great a risk was created by the installation of a piping elbow in the East Coker Unit made of the wrong material. Under the original contract between Humble Oil (Exxon's predecessor) and Foster Wheeler, Humble Oil had the right to appoint representatives to witness the construction, tests, and inspections of the component parts of the East Coker Unit prior to the spraying of asbestos on the pipes, but did not do so. Exxon could have also rejected the unit until it had an assessment done as to the correctness of the construction in accordance with the plans and specifications. Exxon's failure to oversee the construction, conduct inspections, or order an assessment as to the correctness of the East Coker Unit's construction in accordance with the design plans were conscious actions that necessarily involved adverting to, or consciously considering the risk, or possible danger that the East Coker Unit was not properly constructed.

As owner of the East Coker Unit for more than thirty years, Exxon retained ultimate responsibility for maintaining the East Coker Unit in a reasonably safe condition. Despite this, Exxon failed to make inspections, repairs, or replacements in a reasonably prudent manner. For example, the record reveals that later-constructed portions of the East Coker Unit contained parts made of carbon steel, as opposed to chrome-moly. For example, an April 25, 1988 "Near Miss Report" details a replacement spool pipe installed in 1978 that was made of carbon steel. Similarly, an "Inspection History Report," dated December 9, 1993, memorializing an inspection conducted on September 7, 1982 details a small bore instrument piping made of carbon steel that was threaded and screwed onto existing piping. Exxon's failure to inspect the work done constructing, repairing, and replacing parts of the East Coker Unit, which contributed to weaknesses in the unit, had a direct causative impact on the accident that occurred.

Therefore, we find that there is a reasonable factual basis for the city court's finding that Exxon was 100% at fault for the plaintiffs' injuries. Accordingly, we affirm the city court's allocation of 100% fault to Exxon.

Assignment of Error No. 2: Damages

In its second assignment of error, Exxon argues that the city court's damage awards are excessive and violate the supreme court's order to reconsider the awarded damages in light of Howard , 50 So.3d 1251. See Aaron , 201 So.3d 241.

The trier-of-fact is accorded much discretion in fixing general damage awards. La. C.C. art. 2324.1 ; Cheramie v. Horst , 93-1168 (La. App. 1 Cir. 5/20/94), 637 So.2d 720, 723. The discretion vested in the trier-of-fact is great, even "vast," so that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp. , 623 So.2d 1257, 1261 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier-of-fact. Wainwright v. Fontenot , 2000-0492 (La. 10/17/00), 774 So.2d 70, 74 ; Youn , 623 So.2d at 1260. The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the "much discretion" of the trier-of-fact. Youn , 623 So.2d at 1260.

Before an appellate court can disturb the quantum of an award, the record must clearly reveal that the trier-of-fact abused its discretion. In order to make this determination, the reviewing court looks first to the individual circumstances of the injured plaintiff. Theriot v. Allstate Ins. Co. , 625 So.2d 1337, 1340 (La. 1993). Reasonable persons frequently disagree about the measure of general damages in a particular case. Youn , 623 So.2d at 1261. It is only when the award is, in either direction, 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 that the appellate court should increase or decrease the award. Id. Only after analysis of the facts and circumstances peculiar to the particular case and plaintiff may an appellate court conclude that the award is inadequate. Theriot , 625 So.2d at 1340.

If the appellate court determines that an abuse of discretion has been committed, it is then appropriate to resort to a review of prior awards, to determine the appropriate modification of the award. Prior awards under similar circumstances serve only as a general guide. In such review, the test is whether the present award is greatly disproportionate to the mass of past awards for truly similar injuries. Id.

In Howard , a chemical leak that occurred at a plant in Taft, Louisiana, owned by the defendant, Union Carbide, from ten o'clock one night until three o'clock the following afternoon, vaporized 4.6 million pounds of naphtha and dispersed the naphtha vapor into the surrounding communities. Howard , 50 So.3d at 1253. Affected individuals sustained irritation of the eyes, nose, and throat, as well as headaches, nausea, dizziness, stinging and tearful eyes, stinging nasal membranes, sore throat, coughing, and a sensation of almost feeling drunk. None of the affected individuals sought or required medical attention, had to evacuate the area, or missed any work or school. The symptoms resolved in a day and could be treated with over-the-counter medication such as Visine. Id. at 1254.

The plaintiffs instituted a class action, and a trial of certain randomly-selected claimants was held to determine whether the claimants were exposed to the naphtha fumes; whether they suffered compensable damages; and the amount of their damages. Id. at 1253-54. The supreme court granted certiorari to review the quantum of general damages awarded by the district court in Howard . Five of the plaintiffs who were in the plant at the time of the leak were awarded $3,500 each, which the supreme court held was excessive and reduced to $500 each. One plaintiff, who was working near the plant on the night of the leak, was awarded $2,500, which the supreme court held was excessive and reduced to $250. Two plaintiffs residing in a nearby town (Montz, Louisiana) were awarded $2,000 each, which the supreme court held was excessive and was reduced to $150 each. Four plaintiffs residing in a nearby town near the fringe of the exposure area (Killona, Louisiana) were awarded $1,500 each, which the supreme court held was excessive and reduced to $100 each. Id. at 1254, 257. The supreme court held that "the damages proven, such as eye, nose, and throat irritations, are not unlike the symptoms suffered by persons afflicted with common seasonal allergies. There is simply no reasonable relationship between the claimants' injuries, which might be characterized as mere annoyances, and the damage awards." Id. at 1256.

Following remand and with the instruction to consider the damage awards pursuant to the standards set forth in Howard , the city court vacated and amended its damage awards to the trial plaintiffs as follows: (1) $7,500.00 to Gloria H. Poole reduced to $2,500.00; (2) $7,500.00 to Patricia A. Brue reduced to $2,500.00; (3) $7,500.00 to Dorothy J. Browder reduced to $2,500.00; (4) $4,000.00 to Barbara W. Burks reduced to $1,250.00; (5) $7,500.00 to Doris J. Vondo reduced to $2,500.00; and (6) $7,500.00 to D'Ann L. Scott reduced to $2,500.00.

As previously mentioned, the city court provided eleven pages of detailed, thorough reasons for judgment after remand. Each of the six trial plaintiffs' situations was thoroughly examined in determining the amount of damages. The city court reasoned:

The Plaintiffs and their losses in the Howard v. Union Carbide case are very distinguishable from the [Aaron ] case. Generally[,] in the Aaron case, to distinguish it from [ Howard ], the following facts existed, to wit:
(1) The plaintiffs in the [Aaron ] case lived close to the plant, some closer than others;
(2) In the [Aaron ] case, there was an explosion and fire of such a degree as to cause fumes, chemical releases, a wide field of debris and other particulate matter directly from the explosion and fire to spread over the communities and fall on their homes, cars, yards, streets, and all areas in between, and themselves;
(3) They were directed to "shelter in place";
(4) They were directed to turn off their air conditioners (in the month of August in South Louisiana);
(5) They were directed not to touch the debris and particulate matter that was falling from the sky and settling all over their community, but this was only on the second day; they were not told the nature of the debris [;]
(6) There were police cars, ambulances, fire trucks[,] and hazmat trucks in their neighborhoods outside of the chemical plant;
(7) Their communities were invaded by persons in "space type" white jump suits with appropriate gear to begin and complete cleanup and retrieval of the contaminated debris and postulate matter in the atmosphere and settling all over the community, including planting itself in the grass and plants in their yards; but they were not given any personal protective equipment[;]
(8) They were in the "Zone of Danger", and they knew it;
(9) The plaintiffs, as to physical injuries, complained of:
a. irritated and watery eyes;
b. irritation to throat;
c. irritation and aggravation to the membranes in the nose;
d. nausea and vomiting;
e. dizziness; and
f. fear and fright.
(10) Their symptoms lasted for more than one day.
[...]
The Plaintiffs in the [Aaron ] case complained of: watery eyes, irritation to the eyes, noses[,] and throat. Some testified that they experienced these conditions as well as nausea and vomiting. Generally, each one testified of the fear and fright that they experienced after finding out what happened, and that there might be some long term adverse health condition that would surface from this exposure at some point in their lives. They testified that no one from [Exxon] communicated with them, nor offered them protection.
[...]
In the instant case[,] [Exxon] never attempted to provide any information to the residents, who were concerned and very frightened for their health and safety, and that of their loved ones. [Exxon] did not attempt to mitigate the losses to the community by providing instructions for safety, sending medical teams into the communities to talk with the residents and treat if necessary, provide any instructions as to the emission and the content of the emissions-whether deadly or otherwise. Nor did [Exxon] offer any assistance to them.
The plaintiffs were exposed for some time to the emissions and releases since there was no immediate warning signal. They were still asleep with their air conditioners on, bringing the substance into their homes. Ultimately[,] most of the plaintiffs moved from their homes in the neighborhood, seeking safer communities that they could afford. Therefore, contrary to the rationale in the Union Carbide, supra case, these plaintiffs suffered quite a bit more than "nuisance" allergy-like symptoms. They were impacted and so were their lives.
This Court has considered the remand of the Higher Courts; has considered their concern and heeded their suggestions. However, this Court strongly believes that these communities of people suffered from this incident in many ways, which includes physical injuries, emotional and mental distress, contamination to their properties which they could not afford to move from, and physical suffering.

We have carefully examined the arguments of Exxon regarding the alleged errors in the damage awards made by the city court. We have individually considered the claims of the trial plaintiffs, giving particular attention to each plaintiffs proximity to the release site; the evidence of her symptoms; the nature and duration of the symptoms; whether medical treatment was sought, and if so, the diagnosis received; whether each plaintiff was required to shelter-in-place or evacuate from her home; and whether each plaintiff experienced fear and fright. The city court found that the trial plaintiffs experienced physical symptoms such as burning, irritated, and red eyes, sore throat, nausea, vomiting, and trouble breathing. These physical symptoms lasted for a few days to several weeks. The city court concluded that the trial plaintiffs also experienced fear and fright based on the ensuing emergency and environmental response at the plant and in their community following the explosion and fire. Responders clad in white "space type" protective jumpsuits came into their communities to conduct testing and retrieve debris. The trial plaintiffs testified that they were not told whether the debris and ash blanketing their properties and belongings was harmful, nor whether there was anything harmful in the smoke they breathed. The trial plaintiffs were not provided with information or protective clothing, but were merely instructed not to touch anything. The trial plaintiffs experienced fear and fright regarding any adverse health effects that may arise as a result of the accident. In some instances, this fear lasted for months.

Based on our review of the entire record, as well as the city court's detailed reasons for judgment after remand, we find no manifest error in the factual findings made by the city court relative to its quantum determinations. Further, we find no abuse of the city court's broad discretion in the general damage awards made. In reaching this conclusion, we are extremely mindful of the holding of the supreme court in Howard , which does not, however, establish a bright line rule for evaluating this type of chemical exposure case. Rather, we believe the Howard court only confirmed a common sense approach to determining quantum in such occurrences. See Crowe v. Pearl River Polymers, Inc. , 2012-1323 (La. App. 1 Cir. 12/30/14), 2014 WL 7454995, at *5 n.8 (unpublished ). Therefore, we affirm the city court's damage awards after remand.

DECREE

Based on the foregoing, the writ application is denied. The city court's May 1, 2017 judgment after remand allocating 100% fault to the defendant, ExxonMobil, Corporation, and awarding damages to the trial plaintiffs in the following amounts-(1) $2,500.00 to Gloria H. Poole; (2) $2,500.00 to Patricia A. Brue; (3) $2,500.00 to Dorothy J. Browder; (4) $1,250.00 to Barbara W. Burks; (5) $2,500.00 to Doris J. Vondo; and (6) $2,500.00 to D'Ann L. Scott-is affirmed. All costs associated with this matter are assessed to the defendant, ExxonMobil, Corporation.

WRIT DENIED; JUDGMENT AFTER REMAND AFFIRMED.

CHUTZ J., Concur

      Pursuant to La. C.C.P. art. 5001(B), an appeal from a judgment "rendered by a city court located in the Nineteenth Judicial District shall be taken to the district court of the parish in which the court of original jurisdiction is located." By mandating that such appeals be filed in the 19th JDC, the Legislature granted appellate jurisdiction over the Baton Rouge City Court judgments to the 19th JDC and, likewise, divested this Court of that jurisdiction. See La. Const. art. V, §§ 5 (A), 10 (A), and 16 (B); see also Miazza v. City of Mandeville , 2010-0304 (La. 5/21/10), 34 So.3d 849 (per curiam ); Caire v. Stassi , 379 So.2d 1056, 1057 (La. 1980). However, this proceeding is within our supervisory jurisdiction pursuant to La. Const. art. V, §§ 5 (A) and 10 (A) and La. C.C.P. art. 2201. When a party files an appeal under these circumstances, our supreme court has directed that the appeal should be converted to an application for supervisory writs. Tower Credit, Inc. v. Bradley , 2015-1164 (La. App. 1 Cir. 4/15/16), 194 So.3d 62, 64.

      For more background information on the East Coker Unit, see Exxon Corp. v. Foster Wheeler Corp. , 2000-2093 (La. App. 1 Cir. 12/28/01), 805 So.2d 432, 433-34, writ denied, 2002-0261 (La. 3/28/02), 812 So.2d 633.

      See In Re 1993 Exxon Coker Fire Litigation , Master Docket No. 3:93-MD-2-BMGL-SCR (M. D. La.).

      See Order , In Re 1993 Exxon Coker Fire Litigation , Master Docket No. 3:93-MD-2-BMGL-SCR, No. 93-MS-2-B-2 (M. D. La. July 28, 2000); Judgment , In Re 1993 Exxon Coker Fire Litigation , Master Docket No. 3:93-MD-2-BMGL-SCR, No. 93-MS-2-A-M2 (M.D. La. Aug. 8, 2000).

      See Exxon Corporation v. Foster Wheeler Corporation, Texas Pipe Bending Inc., Tube Turns Technology, Inc., ABC Insurance Companies, and XYZ Insurance Companies , Docket No. 408,309, Division I,19th JDC, Parish of East Baton Rouge, State of Louisiana (La. Dist. Ct. Aug. 3, 2000), 2000 WL 35441896 (unpublished ).

      See In Re 1993 Exxon Coker Fire Litigation , Master Docket No. 3:93-MD-2-BMGL-SCR, Nos. 3-.07-CV-348, 3:07-CV-349, 3:07-CV-350 (M.D. La. July 18, 2008 [Amended "Judgment and Findings of Fact and Conclusions of Law" signed Aug. 8, 2008] ), 2008 WL 2795146 (unpublished ).

      See In re 1993 Exxon Coker Fire , 336 F. App'x 431 (5th Cir. 2009) (per curiam ) (unpublished ).

      See Andre Aaron, et al. v. ExxonMobil, Corporation f/k/a Exxon Company U.S.A., Exxon Corporation , Docket No. 0704-02964-D, Division D, Baton Rouge City Court, Parish of East Baton Rouge, State of Louisiana. (It appeared that 386 of the 4,172 named plaintiffs in the city court action were named plaintiffs in the federal litigation.).

      See Ayanna Abadie, et al. v. ExxonMobil, Corporation f/k/a Exxon Company U.S.A. , Exxon Corporation , Docket No. 0704-02965-D, Division D, Baton Rouge City Court, Parish of East Baton Rouge, State of Louisiana. (It appeared that 887 of the 2,939 named plaintiffs in the city court action were named plaintiffs in the federal litigation.).

      See Adlean McAlope, et al. v. ExxonMobil, Corporation f/k/a Exxon Company U.S.A., Exxon Corporation , Docket No. 0704-03054-A, Division A, Baton Rouge City Court, Parish of East Baton Rouge, State of Louisiana. (It appeared that 283 of the 1,450 named plaintiffs in the city court action were named plaintiffs in the federal litigation.).

      Louisiana Civil Code article 2315(A), the general negligence article, states that "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it."

      At the time of the explosion and fire, Louisiana law still recognized strict liability in La. C.C. arts. 2317 and 2322. The Legislature has eliminated strict liability in favor a negligence standard (except in cases of dogs, whose owners are responsible for damages caused thereby that the owner could have prevented and that did not result from the injured person's provocation of the dog. See La. C.C. art. 2321.). See 1996 La. Acts. No. 1, § 1, 1st Ex. Sess. (eff. Apr. 16, 1996) ). Accordingly, an owner or custodian of a thing and an owner of a building are responsible for damage caused by a ruin, vice, or defect in the thing/building where the owner/custodian possessed actual or constructive knowledge of the ruin, vice, or defect; the damage could have been prevented through the exercise of reasonable care; and the owner/custodian failed to exercise reasonable care. See La. C.C. arts. 2317, 2317.1, and 2322.

      Exxon removed the three city court suits to the United States District Court for the Middle District of Louisiana on May 17, 2007, which automatically stayed the city court proceedings pursuant to 28 U.S.C. § 1446(d). See Andre Aaron, et al. v. ExxonMobil, Corporation f/k/a Exxon Company U.S.A., Exxon Corporation ; Ayanna Abadie, et al. v. ExxonMobil, Corporation f/k/a Exxon Company U.S.A., Exxon Corporation ; and Adlean McAlope, et al. v. ExxonMobil, Corporation f/k/a Exxon Company U.S.A., Exxon Corporation , Docket Nos. 3:07-CV-00348-BMGL-SCR, 3:07-CV-00349-BMGL-SCR, 3:07-CV-00350-BMGL-SCR (M.D. La. May 17, 2007). The federal court remanded the matters to city court on October 18, 2007. See Andre Aaron, et al. v. ExxonMobil, Corporation f/k/a Exxon Company U.S.A., Exxon Corporation ; Ayanna Abadie, et al. v. ExxonMobil, Corporation f/k/a Exxon Company U.S.A., Exxon Corporation ; and Adlean McAlope, et al. v. ExxonMobil, Corporation f/k/a Exxon Company U.S.A., Exxon Corporation , Docket Nos. 3:07-CV-00348-BMGL-SCR, 3:07-CV-00349-BMGL-SCR, 3:07-CV-00350-BMGL-SCR (M.D. La. Oct. 18, 2007).

      The trial plaintiffs were Gloria H. Poole, Patricia A. Brue, Dorothy J. Browder, Barbara W. Burks, Doris J. Vondo, and D'Ann L. Scott. (We note that portions of the record utilize the spelling "Vando" instead of "Vondo," as well as "Deane" instead of "D'Ann." We will utilize the "Vondo" and "D'Ann" spellings for consistency.).

      The Louisiana Code of Civil Procedure defines three types of judgments: an interlocutory judgment, which determines a preliminary matter in the course of an action, but does not determine the merits (see La. C.C.P. art. 1841 ); a final judgment, which determines the merits of the case in whole or in part (see La. C.C.P. art. 1841 ); and a partial final judgment, which disposes of some, but not all, of the issues on the merits, and in some instances, requires a designation of finality by the trial court (see La. C.C.P. art. 1915 ). Different rules govern the appealability of these three types of judgments. See La. C.C.P. arts. 2083(A), 2083(C), and 1915(B).

      See La. Const. art. V, §§ 5 (A), 10 (A), and 16 (B); see also Miazza , 34 So.3d at 849 ; Caire , 379 So.2d at 1057 ; Tower Credit, Inc., 194 So.3d at 64.

      Andre Aaron, et al. v. ExxonMobil Corporation, et al. , Docket No. C-631,599, Section 25, 19th JDC, East Baton Rouge Parish, State of Louisiana.

      Gloria Poole, et al. v. ExxonMobil Corporation, et al. , Docket No. C-631,686, Section 27, 19th JDC, East Baton Rouge Parish, State of Louisiana.

      Exxon's first supervisory writ application seeking review of the 19th JDC's January 22, 2015 judgment was denied on the showing made. See Andre Aaron, et al. v. ExxonMobil, Corporation f/k/a Exxon Company U.S.A., Exxon Corporation , 2015-0601 (La. App. 1 Cir. 11/4/15) (unpublished writ action ).

      Andre Aaron, et al. v. ExxonMobil Corporation, et al. , Docket No. C-661,310, Division O, Section 25, 19th JDC, East Baton Rouge Parish, State of Louisiana.

      Exxon filed a motion for new trial, seeking to set aside the city court's May 1, 2017 judgment after remand, which the trial plaintiffs opposed. Following a hearing, the city court denied Exxon's motion.

      December 2 and 3, 2013, January 31, 2014, and January 6, 2017.

      Citing Thompson v. Winn-Dixie Montgomery, Inc. , 2015-0477 (La. 10/14/15), 181 So.3d 656, 667 and Williams v. City of Monroe , 27,065 (La. App. 2 Cir. 7/3/95), 658 So.2d 820, 831, writs denied, 95-1998, 95-2017 (La. 12/15/95), 664 So.2d 451, 452.


source: Caselaw Access Project

author: PETTIGREW, J.

license: Public Domain

text:
    Marko and Erica Jill BACA, Arlis and Donnia Barrow, Lee and Tina Marie Blackmon, Roy and Vondal Blackmon, Ernestine Boone, Russell Brack, Donald and Pamela Brack, Mastern and June Brack, Mary Clark, Kevin and Diana Connally, Ruby Craft, Bradley Craft, Robert Cryer, Edward Cryer, Katie Evans Daffin, Rusty and Carla Egan, Bobby and Frances Egan, Joel Evans, Jimmy Fleniken, Johnny Nash, Kina Hill, Rodney Jarrell, Scotty Jeane, Toni Jordan, John Lisa Kerr, Susan Knight Mathews, Edward and Elizabeth Knowlton, John Kramer, Robert and Morgan Lewis, Luther Logan, Jr., Katherine Maresh, Brent and Betty Mcbride, Amber Mcneil, Abbie Mitcham, William and Geraldine Mitcham, Kelly Nash, Linda Newsom, Donnie and Mary Parker, Joel Pennington, Kenneth Pennington, Richard Phillips, Von Savell, Max and Donice Shaw, Jeffrey Simmons, Jr., Jeffrey and Alice Simmons, Marvin Smith, Glenna Smith, John Smith, Melvin Smith, Silvia Smith, Emery and Jean Soileau, Wade Stanley, Charles and Geraldine Tilley, Kenneth Vincent, Gregg Walker, Mark Williams, & Lonnie and Yvonne Young v. SABINE RIVER AUTHORITY, State of Louisiana
    NO. 2018 CA 1046
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered DECEMBER 27, 2018
    JENNIFER N. WILLIS, NEW ORLEANS, LA AND GARY J. GAMBEL, NEW ORLEANS, LA, ATTORNEYS FOR PLAINTIFFS-APPELLANTS, MARKO BACA, ET AL.
    JOHN P. WOLFF, III, NANCY B. GILBERT, SYDNEE D. MEOU, BATON ROUGE, LA, ATTORNEYS FOR DEFENDANT-APPELLEE, SABINE RIVER AUTHORITY, STATE OF LOUISIANA
    HARRY J. VORHOFF, BATON ROUGE, LA, ATTORNEY FOR DEFENDANT-APPELLEE, STATE OF LOUISIANA
    BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.
   PETTIGREW, J.

In this inverse condemnation suit, the plaintiffs appeal a judgment sustaining the defendant's exception raising the objection of no cause of action and dismissing plaintiffs' petition with prejudice based on federal preemption. For the reasons set forth herein, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

Two state agencies jointly regulate the waterways of the Sabine River, which meanders between Louisiana and Texas: the Sabine River Authority, State of Louisiana ("SRA-L") and the Sabine River Authority, State of Texas ("SRA-T"). The SRA-L and the SRA-T applied for and received a license from the Federal Energy Regulatory Commission ("FERC") for the construction, operation, and maintenance of a large reservoir, the Toledo Bend Dam, a spillway, and a hydroelectric plant. In accordance with the provisions of the Federal Power Act ("FPA"), 16 USC § 791a - 828c, FERC may issue licenses for the construction, operation, and maintenance of dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction. 16 USC 797(e).

Plaintiffs are all owners of property located in Louisiana in Vernon Parish or Beauregard Parish near the Sabine River, downstream from the Toledo Bend Dam. Defendant, the SRA-L, is an agency and instrumentality of the State of Louisiana. La. R.S. 38:2324(A). In March 2017, plaintiffs filed a Petition for Compensation for Taking of Property, in which they alleged that the erection of the Toledo Bend Dam by the SRA-L caused significant changes to the Sabine River, downstream from the dam, and that those changes to the river increased the risk of flooding in the property near the Sabine River. Plaintiffs alleged that the changes to the river caused catastrophic flooding in the watershed below the Toledo Bend Dam on March 10, 2016, including plaintiffs' properties, and that their properties will continue to flood in the future due to the changes to the river. Plaintiffs contend that the SRA-L's actions causing changes to the river and the resultant flooding constituted a taking of their property without formal expropriation proceedings and without just compensation, in violation of Article I, § 4 of the Louisiana Constitution.

On April 24, 2017, the SRA-L filed a Notice of Removal to the United States District Court for the Middle District of Louisiana, alleging federal question jurisdiction under 28 U.S.C. § 1331 and 16 U.S.C. § 825p . Thereafter, the SRA-L

filed a motion to dismiss the plaintiffs' petition, and the plaintiffs filed a motion to remand the matter to the state court. The United States District Court concluded that federal jurisdiction did not exist in this case under either § 1331 or § 825p and remanded the matter to the state court. The United States District Court also denied the SRA-L's Motion to Dismiss as moot.

Following remand, the SRA-L filed a peremptory exception raising the objections of no cause of action and nonjoinder of a party. After a hearing, the trial court concluded that plaintiffs' suit is preempted under federal law and granted the SRA-L's exception of no cause of action. Because the court dismissed plaintiffs' suit with prejudice for failure to state a cause of action, the exception of nonjoinder was denied as moot. Plaintiffs appealed.

DISCUSSION

The purpose of an exception raising the objection of no cause of action is to determine the sufficiency in law of the petition. The exception is triable on the face of the petition. For the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. City of New Orleans v. Board of Commissioners of Orleans Levee District, 93-0690 (La. 7/5/94), 640 So.2d 237, 241 ; see La. C.C.P. arts. 927 and 931. Furthermore, the facts shown in any documents annexed to the petition must also be accepted as true. See La. C.C.P. art. 853 ; Cardinale v. Stanga, 01-1443 (La.App. 1 Cir. 9/27/02), 835 So.2d 576, 578. The burden of demonstrating that no cause of action has been stated is on the exceptor. Home Distribution, Inc. v. Dollar Amusement, Inc., 98-1692, p. 5 (La.App. 1 Cir. 9/24/99), 754 So.2d 1057, 1060.

In ruling on an exception of no cause of action, the trial court must determine whether the law affords any relief to the claimant if he proves the factual allegations in the petition and annexed documents at trial. Adams v. Owens-Corning Fiberglas Corp., 04-1296, p. 3 (La.App. 1 Cir. 9/23/05), 921 So.2d 972, 975, writ denied, 05-2501 (La. 4/17/06), 926 So.2d 514. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. When a petition is read to determine whether a cause of action has been stated, it must be interpreted, if possible, to maintain the cause of action instead of dismissing the petition. Any reasonable doubt concerning the sufficiency of the petition must be resolved in favor of finding that a cause of action has been stated. Brister v. GEICO Ins., 01-0179, p. 6 (La.App. 1 Cir. 3/28/02), 813 So.2d 614, 617. When an exception of no cause of action is based on an affirmative defense, such as federal preemption, the exception should not be sustained unless the allegations of the petition exclude every reasonable hypothesis other than the premise upon which the defense is based. Adams, 04-1296 at pp. 3-4, 921 So.2d at 976 ; Fisher v. Halliburton, 667 F.3d 602, 609 (5th Cir. 2012), cert. denied, 568 U.S. 941, 133 S.Ct. 427, 184 L.Ed.2d 258 (2012).

The reviewing court conducts a de novo review of a trial court's ruling sustaining an objection raising the exception of no cause of action, because the exception raises a question of law, and the lower court's decision is based only on the sufficiency of the petition. Adams, 04-1296 at p. 4, 921 So.2d at 976.

Article I, § 4 of the Louisiana Constitution provides that property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner. La. Const. art. I, § 4 (B)(1). The procedural remedy for a property owner seeking compensation for land already taken or damaged against a governmental or private entity having the powers of eminent domain where no expropriation has commenced is through an action for inverse condemnation. State Through Dept. of Transp. & Development v. Chambers Inv. Co., Inc., 595 So.2d 598, 602 (La. 1992). The action for inverse condemnation is available in all cases where there has been a taking or damaging of property where just compensation has not been paid, without regard to whether the property is corporeal or incorporeal. Id. To establish a claim for inverse condemnation, a party must show that: (1) a recognized species of property right has been affected; (2) the property has been taken or damaged in a constitutional sense; and (3) the taking or damaging was for a public purpose under La. Const. art. I, § 4. 1900 Highway 190, L.L.C. v. City of Slidell, 15-1755, p. 6 (La.App. 1 Cir. 6/3/16), 196 So.3d 693, 698.

The well-pleaded facts of the plaintiffs' petition seeking just compensation for the inverse condemnation of their property under La. Const. Art. I, § 4 and La. R.S. 13:5111 are as follows: the SRA-L's construction of the Toledo Bend Dam caused significant changes to the Sabine River, downstream from the dam, which changes caused an increased risk of flooding in the property near the river. The changes to the river resulting from the erection of the dam caused catastrophic flash flooding in the watershed below the Toledo Bend Dam on March 10, 2016, including the property belonging to the plaintiffs. The Toledo Bend Dam was constructed for a public purpose, including providing recreation, irrigation, and flood control for the area. The modification of the watershed so as to cause flooding constituted a taking, in a constitutional sense, of plaintiffs' property by causing increased flooding in the past, which will continue to occur in the future, preventing the plaintiffs from using their properties to their highest and best use and diminishing the value of the properties. No compensation was ever paid for the taking.

The SRA-L's exception argued that plaintiffs' petition failed to state a cause of action because their state law claim for inverse condemnation is preempted by the FPA, and is otherwise an impermissible collateral attack on the final and unappealable licensing orders issued by FERC. In concluding that plaintiffs' petition failed to state a cause of action, the trial court reasoned that "everything concerned with the causation and liability associated with this ["]taking["] falls within federally-perempted [sic] matters."

On appeal, the plaintiffs argue that the trial court erred in concluding that their claim was federally preempted "after the federal court specifically found that there was no federal question presented by this case," and remanded the matter to state court. However, even where a suit is remanded to state court for lack of federal subject matter jurisdiction, the state law claim may nevertheless be preempted by federal law. See Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 337 (5th Cir. 1999). The presence of conflict preemption does not establish federal question jurisdiction. Rather than transmogrifying a state cause of action into a federal one-as occurs with complete preemption-conflict preemption serves as a defense to a state action. In such a case, the federal court, being without removal jurisdiction, cannot resolve the dispute regarding preemption;

it lacks the power to do anything other than remand to the state court where the preemption issue can be addressed and resolved. Id. In this case, the United States District Court remanded plaintiffs' suit to the state court due to a lack of federal question jurisdiction, which prevented the United States District Court from determining the issue of preemption. This does not equate to a finding that the claim is not preempted. Thus, the issue before us is simply whether the plaintiffs' state law claim for the inverse condemnation of their property by the SRA-L is preempted by federal law.

Federal preemption is based on the Supremacy Clause, which provides that federal law shall be the supreme Law of the Land. U.S. Const. art. VI, cl. 2. Federal preemption fundamentally is a question of congressional intent. English v. General Electric Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65 (1990). There are three types of preemption: express preemption, field preemption, and conflict preemption. Kurns v. R.R. Friction Products Corp., 565 U.S. 625, 630-31, 132 S.Ct. 1261, 1265-66, 182 L.Ed.2d 116 (2012). Express preemption occurs when Congress, in enacting a federal statute, expresses a clear intent to preempt state law. Louisiana Public Service Commission v. Federal Communications Commission, 476 U.S. 355, 368-69, 106 S.Ct. 1890, 1898, 90 L.Ed.2d 369 (1986). Field preemption occurs when the intent to displace state law altogether can be inferred from a framework of regulation so pervasive that Congress has left no room for the States to supplement it or where there is a federal interest so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. Simmons v. Sabine River Authority of Louisiana, 732 F.3d 469, 473-74 (5th Cir. 2013), cert. denied, --- U.S. ----, 134 S.Ct. 1876, 188 L.Ed.2d 912 (2014). Conflict preemption occurs where compliance with both federal and state laws is a physical impossibility, and in those instances where the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Id. There is a strong presumption against federal preemption. Simmons v. Sabine River Authority of Louisiana, 11-1146, p. 5 (La.App. 3 Cir. 8/15/12), 97 So.3d 1177, 1179, writ denied, 2012-2043 (La. 11/16/12), 102 So.3d 40.

Although the FPA reveals congressional intent for a broad federal role in the development and licensing of hydroelectric power, Congress carefully preserved the separate interests of the states throughout the Act, without setting up a divided authority over any one subject. Simmons, 732 F.3d at 474. Under this dual system of control, the states and FERC each have final authority over their own subject matter, and the duality does not require that they share in the final decision of the same issue. South Carolina Public Service Authority v. F.E.R.C., 850 F.2d 788, 796 (D.C. Cir. 1988).

Although a licensee, such as the SRA-L, is required by 16 U.S.C. § 803(c) to conform to FERC rules and regulations for the protection of life, health, and property; § 803(c) also provides that the licensee "shall be liable for all damages occasioned to the property of others by the construction, maintenance, or operations of the project ... constructed under the license, and in no event shall the United States be liable therefor." This provision does not create a federal right of action; rather, it preserves state law claims against licensees. Simmons, 732 F.3d at 474.

While liability for property damage caused by FERC licensees is determined by reference to state law, this preservation of state law claims cannot be interpreted so broadly as to supplant FERC's exclusive control of licenses. State law cannot be employed in a collateral attack on a FERC license. Simmons, 732 F.3d at 475-77. In Simmons, property owners sued the SRA-L for property damage after the opening of the Toledo Bend Dam, in accordance with the FERC license, resulted in flood damage to their property. The Simmons plaintiffs asserted various theories of liability under state law, including trespass, negligence, and unconstitutional taking, and sought damages as well as injunctive relief. The United States Fifth Circuit affirmed the district court's dismissal of the Simmons plaintiffs' state law claims, finding that they infringed on FERC's operational control by attempting to impose liability on the SRA-L for acting in compliance with the FERC license, and thus are conflict preempted. Id. The court in Simmons noted that the Supreme Court has recognized that claims for damages can serve the same effect as regulations, since the obligation to pay compensation can be, and is indeed designed to be, a potent method of governing conduct and controlling policy. Simmons, 732 F.3d at 477, quoting Kurns, 132 S.Ct. at 1269. Because operators typically avoid acting in a manner that will expose them to liability, state law claims for damages arising out of the operation of a FERC-licensed dam have just as much potential to change the manner in which a dam is operated as do claims for injunctive relief. Thus, where a property damage claim based in state law alleges damage as a result of the licensee "negligently" operating in compliance with a FERC license, the state property damage claim is preempted, because FERC (not state tort law) must set the appropriate duty of care for licensees. Simmons, 732 F.3d at 476-77 ; 16 U.S.C. § 803(c) (requiring licensees to conform to FERC's rules and regulations). Applying state tort law to set the duty of care for the operation of FERC-licensed projects would stand as an obstacle to the accomplishment and execution of the full purposes and objectives of the FPA. Simmons, 732 F.3d at 477.

While state law property damage claims are conflict preempted where they are used as a collateral attack on the FERC license or stand as an obstacle to the accomplishment and execution of the full purposes and objectives of the FPA, not all state property damage claims are necessarily preempted by the FPA. For example, the United States Fifth Circuit recognized in dicta in Simmons that certain state law property damage claims would not be preempted because they would not conflict with FERC's operational control, such as claims alleging negligence by a licensee for failure to conform to FERC's guidelines. Simmons, 732 F.3d at 477, n. 9. See also Bonin v. Sabine River Authority of Texas, 2018 WL1190234, *2 (E.D. Tex. 2018).

The plaintiffs' petition does not allege negligence by the SRA-L in constructing, operating, or maintaining the Toledo Bend Dam, nor does it seek injunctive relief to effect change in the SRA-L's operation of the dam under the license. The petition merely alleges that the construction of the Toledo Bend Dam caused significant changes to the Sabine River downstream from the dam, which increased the risk of flooding on plaintiffs' properties, resulting in a taking without just compensation. Section 803(c) specifically preserves such state law claims. Assuming plaintiffs are able to prove all of the elements of their inverse condemnation claim and receive compensation for the taking of their property under the Louisiana Constitution and La. R.S. 13:5111, we cannot see how this would interfere with FERC's operational control or stand as an obstacle to the accomplishment and execution of the full purposes and objectives of the FPA.

Although the SRA-L argues that in order for plaintiffs to prevail on their inverse condemnation claim, the trial court would have to disregard FERC's determination that the project did not result in an increased risk of flooding downstream; we are limited when reviewing an objection of no cause of action to the well-pleaded facts of the petition (and any documents annexed thereto), which must be accepted as true. City of New Orleans, 93-0690 at p. 2, 640 So.2d at 241. Accepting the allegations of the plaintiffs' petition as true, and in light of the strong presumption against federal preemption, we cannot say that the SRA-L carried its burden of proving that plaintiffs' petition fails to state a cause of action.

CONCLUSION

For the reasons set forth herein, the judgment of the trial court sustaining the Sabine River Authority, State of Louisiana's exception raising the objection of no cause of action and dismissing plaintiffs' petition with prejudice is reversed. Costs of this appeal, in the amount of $1,165.50, are assessed to defendant, the Sabine River Authority, State of Louisiana.

REVERSED.

      FERC was formerly known as the Federal Power Commission.

      The Toledo Bend Dam spans the Louisiana/Texas state line and is located in the southern part of the reservoir.

      28 U.S.C. § 1331 provides that the District Courts of the United States shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

      16 U.S.C. § 825p provides that the District Courts of the United States shall have exclusive jurisdiction of violations of the Federal Power Act, or the rules, regulations, and orders thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by, or to enjoin any violation of, this chapter or any rule, regulation, or order thereunder.

      Louisiana Revised Statutes 13:5111 provides, in part, for the award of reasonable attorney fees to a successful plaintiff in an inverse condemnation proceeding.

      Although the Simmons decision focused on the plaintiffs' negligence claims, it also affirmed, without much discussion, the lower court's dismissal of the plaintiffs' other state law claims, including claims for unconstitutional taking and damage of property without just compensation. This seems to be at odds with the court's statement that "[w]e do not hold that all state property damage claims are preempted by the FPA," such that state law claims which do not conflict with FERC's operational control are not preempted. Simmons, 732 F.3d at 477, n. 9.


author: GUIDRY, J.

text:
    Fred O. RUSSELL v. CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE
    NUMBER 2018 CA 0600
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JANUARY 17, 2019
    David C. Forrester, Baton Rouge, LA, Counsel for Plaintiff/Appellant, Fred O. Russell
    Arlene C. Edwards, Baton Rouge, LA, Counsel for Defendant/Appellee, City of Baton Rouge/Parish of East Baton Rouge
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   GUIDRY, J.

Plaintiff, Fred Russell, appeals from a judgment of the trial court granting summary judgment in favor of defendant, City of Baton Rouge, Parish of East Baton Rouge (City/Parish), and dismissing his claims against the City/Parish with prejudice. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

On December 9, 2014, Russell, who was seventy eight years old, was a pedestrian on a crowded walkway between St. Louis Street and the Nineteenth Judicial District Court (19th JDC) building. While traversing the area, Russell tripped on an elevated section of concrete, causing him to fall onto the pavement and sustain injuries. Russell subsequently filed a petition for damages, naming the City/Parish as defendant and asserting that the cause of his fall was a transitional section of the sidewalk that abruptly changed elevation and created an unreasonably dangerous condition.

Thereafter, the City/Parish filed a motion for summary judgment, asserting that the condition of the sidewalk was open and obvious, and therefore, not unreasonably dangerous, and that Russell simply failed to watch where he was walking. As such, the City/Parish asserted that it did not owe a duty to protect Russell against an open and obvious condition. Following a hearing on the City/Parish's motion, the trial court signed a judgment granting the motion and dismissing Russell's suit with prejudice. Russell now appeals from the trial court's judgment.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. M/V Resources LLC v. Louisiana Hardwood Products LLC, 16-0758, p. 8 (La. App. 1st Cir. 7/26/17), 225 So.3d 1104, 1109, writ denied, 17-1748 (La. 12/5/17), 231 So.3d 624. A motion for summary judgment is properly granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing a motion for summary judgment, and all doubt must be resolved in the opponent's favor. Willis v. Medders. 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050 (per curiam).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. M/V Resources LLC, 16-0758 at p. 9, 225 So.3d at 1109. A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. C.C.P. art. 966(F).

On a motion for summary judgment, the burden of proof is on the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

In ruling on a motion for summary judgment, the court's role is not to evaluate the weight of the evidence or to determine the truth of the matter but instead to determine whether there is a genuine issue of triable fact. Clark v. J-H-J Inc., 13-0432, pp. 3-4 (La. App. 1st Cir. 11/1/13), 136 So.3d 815, 817, writ denied, 13-2780 (La. 2/14/14), 132 So.3d 964. Because the applicable substantive law determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Nash v. Rouse's Enterprises, LLC, 15-1101, p. 3 (La. App. 1st Cir. 2/26/16), 191 So.3d 599, 600-601.

In order to prove a public entity is liable for damages caused by a defect in a sidewalk, the plaintiff must establish: (1) custody or ownership of the sidewalk by the public entity; (2) the defect created an unreasonable risk of harm; (3) the public entity had actual or constructive notice of the defect; (4) the public entity failed to take corrective action within a reasonable time; and (5) causation. Temple v. Morgan, 15-1159, p. 9 (La. App. 1st Cir. 6/3/16), 196 So.3d 71, 76, writ denied, 16-1255 (La. 10/28/16), 208 So.3d 889.

There is no fixed rule for determining whether a defect in a sidewalk is unreasonably dangerous. Instead, a risk-utility balancing test is used to determine whether the defect creates an unreasonable risk of harm. Temple, 15-1159 at p. 10, 196 So.3d at 77. This test considers: (1) the utility of the complained of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of its social utility or whether it is dangerous by nature. Broussard v. State ex rel. Office of State Buildings, 12-1238, p. 10 (La. 4/5/13), 113 So.3d 175, 184.

The second prong of this inquiry focuses on whether the dangerous or defective condition is obvious and apparent. Broussard, 12-1238 at p. 10, 113 So.3d at 184. Under Louisiana law, a defendant generally does not have a duty to protect against that which is obvious and apparent. Broussard, 12-1238 at p. 10, 113 So.3d at 184. A defect is obvious and apparent when it is one that should be open and obvious to everyone who may potentially encounter it. Broussard, 12-1238 at p. 10, 113 So.3d at 184. The open and obvious inquiry thus focuses on the global knowledge of everyone who encounters the defective thing or dangerous condition, not the victim's actual or potentially ascertainable knowledge. Temple, 15-1159 at p. 10, 196 So.3d at 77.

In the instant case, the City/Parish sought summary judgment, asserting that Russell was unable to establish that the condition of the sidewalk outside the 19th JDC created an unreasonable risk of harm because any alleged defect was open and obvious, and Russell simply failed to watch where he was walking. In support of its motion, the City/Parish submitted the deposition testimony of Russell, wherein he stated that he had been to the 19th JDC once before and that on the date of the accident, he was looking at the crowd on the sidewalk as he was walking. Additionally, the City/Parish submitted the deposition testimony of Michael Whatley, building manager for the 19th JDC, who stated that there had not been any falls at this location before Russell's fall, and that he did not know there was an issue with the sidewalk prior to the fall.

In opposition to the City/Parish's motion, Russell submitted the affidavit of Candace Norton, the individual who Russell was accompanying to the 19th JDC on the date of the accident. Norton stated that Russell tripped on the edge of the pavement identified in the picture attached to her affidavit, which showed the edge of the sidewalk and a broken, yellow curb as it appeared on the date of the accident. Norton stated that prior to Russell's fall, the sidewalk was crowded with pedestrians, and she and Russell moved closer to the building to get around a group of people and did not notice the broken curb or edge of the sidewalk.

Additionally, Russell submitted his own deposition testimony, wherein he stated that while walking down the sidewalk, he was met by an onrush of people on the comer. Russell stated that there were so many people that some were walking in the street, but he chose to walk closer toward the building because it was closer to the doors he would be entering. Russell stated that people were walking in front of him, and he did not look down at the ground because he was navigating the crowd. Finally, Russell stated that at the location where he fell, there was no curbing because the yellow curb was broken.

Russell also submitted the deposition testimony of Whatley, who stated that he was walking behind Russell when he fell. Whatley identified the area where Russell fell as the same area identified by Norton and Russell, but he stated that he did not see what caused Russell to fall. However, Whatley acknowledged that a four or five inch concrete section of the curb had broken off sometime prior to Russell's fall, and that he had removed the piece of the concrete curb when he discovered it but did not take any action to repair it until after Russell's fall.

Finally, Russell submitted the deposition testimony of Michael Stein, a professional engineer. Stein stated that the area where Russell fell contained a transition from the driveway to the sidewalk adjacent to the 19th JDC building. According to Stein, this transition was a trip hazard and violated the City/Parish Building Code. Particularly, Stein stated that the Code of Ordinances for the City/Parish Sections 2:170 and 2:171 require the removal and repair of all uneven and broken sections of sidewalks. Furthermore, Stein stated that the City/Parish did not comply with the Unified Development Code requiring slopes rather than abrupt drop offs in transition areas such as the one at issue.

From our de novo review of the evidence in the record, we find that a genuine issue of material fact exists as to whether the condition of the sidewalk was open and obvious and whether it presented an unreasonable risk of harm. The evidence submitted established that Russell, a seventy-eight year old man, had been to the 19th JDC on only one prior occasion, though it is not clear that he traversed this same area on his prior visit. However, Russell and Norton stated that on the date of Russell's fall, the sidewalk was crowded with people, people were walking in front of them, and they did not notice the broken curb or edge of the sidewalk. Thus, the evidence presented creates a genuine issue of material fact as to whether Russell's view of the area was unobstructed and as such, whether the alleged defect was open and obvious. See Bastian v. Rosenthal, 17-0284, p. 9 (La. App. 4th Cir. 12/20/17), 234 So.3d 1022, 1027 (finding as a matter of law that in order for a condition to be open and obvious, it must be visible). Furthermore, Stein's testimony regarding the hazard presented by the area at issue and the violations of building and development codes further presents a genuine issue as to whether the area where Russell fell was unreasonably dangerous.

Accordingly, these genuine issues of material fact preclude the granting of summary judgment in favor of the City/Parish, and as such, the trial court erred in granting the City/Parish's motion and dismissing Russell's claim with prejudice.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court and remand this matter for further proceedings. All costs of this appeal, in the amount of $1,441.00, are assessed to the City of Baton Rouge, Parish of East Baton Rouge.

REVERSED AND REMANDED.

Theriot, J. concurs

      We note that the record does not contain any evidence that Russell traversed this same area on his previous visit to the 19th JDC.