CHRISTOPHER VITRANO * NO. 2022-C-0146 VERSUS * COURT OF APPEAL VALERO REFINING * MERAUX, LLC FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPLICATION FOR WRITS DIRECTED TO ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 21-0473, DIVISION “E” Honorable Eric A. Bopp ****** Judge Nakisha Ervin-Knott ****** (Court composed of Chief Judge Terri F. Love, Judge Paula A. Brown, Judge Nakisha Ervin-Knott) Jacque R. Touzet Jacque Touzet, Attorney at Law Camp St., Floor 3 New Orleans, LA 70130 Raymond P. Ward Roland M. Vandenweghe, Jr. Taylor E. Brett Adams and Reese LLP Poydras St., Suite 4500 New Orleans, LA 70139 COUNSEL FOR RELATOR Lance V. Licciardi Licciardi Law Office, L.L.C. 1019 W. Judge Perez Dr. Chalmette, LA 70043 Michael C. Ginart, Jr. Law Offices of Michael C. Ginart, Jr. 2114 Paris Rd. Chalmette, LA 70043 David C. Jarrell Law Offices of David C. Jarrell, A.P.L.C.

9101 W. St. Bernard Hwy.

Chalmette, LA 70043 COUNSEL FOR RESPONDENT

WRIT GRANTED; FEBRUARY 4, 2022 JUDGMENT REVERSED; AND JUDGMENT RENDERED April 18, 2023 NEK TFL PAB

This matter is before the Court on remand from the Louisiana Supreme Court. In a per curiam, the Louisiana Supreme Court ordered that this Court reconsider its previous ruling in light of the decision in Spencer v. Valero Ref.

Meraux, L.L.C., 2022-00469, 2022-00539, 2022-00730 (La. 1/27/23), 356 So. 3d 936. For the following reasons, we grant the writ and reverse the district court’s judgment.

Relevant Facts and Procedural History This case is one of many that arises from a refinery explosion. The Louisiana Supreme Court explained the background to the underlying action as follows: On April 10, 2020, at approximately 12:45 a.m., an accident, fire, and explosion (“the explosion”) occurred in the hydrocracker unit at the Valero refinery in Meraux, Louisiana. The fire was extinguished at approximately 10:00 a.m. on April 11, 2020, and the all-clear was given. No significant levels of chemicals were detected as a result of the explosion. Multiple residents in the vicinity of the refinery filed suit for the negligent infliction of emotional distress.

Spencer, 2022-00469, 2022-00539, 2022-00730, pp. 1-2, 356 So. 3d at 940-41.

Christopher Vitrano is one of the residents who witnessed the event and filed suit. On January 22, 2021, Mr. Vitrano filed a Petition for Damages with the

Justice of the Peace Court in St. Bernard Parish. Valero Refining Meraux, LLC (herein “Valero”) answered and sought to dismiss the petition. On March 26, 2021, the Justice of the Peace dismissed the case, and Mr. Vitrano appealed to the 34th Judicial District Court. The district court held a trial de novo on January 6, 2022, during which it considered argument, evidence, and testimony from the parties. On February 4, 2022, the district court issued a judgment in favor of Mr. Vitrano in the amount of $1,000.00 for general damages.

Valero timely filed a supervisory writ with this Court. In its writ application, Valero argued that the district court erred in awarding general damages for emotional distress when Mr. Vitrano had not suffered any physical injury from the explosion. On March 31, 2022, we denied the writ, specifically finding that there was a special likelihood of Mr. Vitrano experiencing genuine and serious mental distress after witnessing the refinery explosion. Valero then filed a supervisory writ with the Louisiana Supreme Court. On January 27, 2023, the Louisiana Supreme Court issued its decision in Spencer. On April 4, 2023, the Louisiana Supreme Court granted writ in this case and remanded the matter back for reconsideration in light of its opinion in Spencer. See Vitrano v. Valero Ref. Meraux, LLC, 2022- 00724 (La. 4/4/23), ___ So.3d ____, ____, 2023 WL 2769305.

Discussion The Spencer Decision The plaintiffs in the Spencer case were similarly situated to Mr. Vitrano. The plaintiffs in Spencer all lived near the Valero refinery and witnessed the explosion.

Although none of the plaintiffs had sought therapy, all noted that they experienced anxiety from the explosion. They all received monetary judgments for emotional distress despite not having suffered a physical injury from the explosion.

In analyzing the claims, the Louisiana Supreme Court determined that public policy considerations require reasonable limits be placed on recovery for negligent infliction of emotional distress damages, especially for claims that do not have an accompanying physical damage or injury. Spencer, 2022-00469, 2022-00539, 2022-00730, p. 10, 356 So. 3d at 946. In order to recover such damages absent a physical injury, a plaintiff must prove that there was a special likelihood of genuine and serious mental distress arising from special circumstances. Id. at p. 16, So. 3d at 950 (quoting Moresi v. State Through Dep’t. of Wildlife & Fisheries, 567 So. 2d 1081, 1096 (La. 1990)). However, “[t]his rule must be ‘stringently applied’ in cases that are inherently speculative in nature.” Id. (quoting Bonnette v. Conoco, Inc., 2001-2767, p. 24 (La. 1/28/03), 837 So. 2d 1219, 1235). Evidence of generalized fear or mere inconvenience is insufficient to meet this standard. Id. A plaintiff must show that his or her mental disturbance was serious. Id. Ultimately, the Louisiana Supreme Court determined that none of the plaintiffs in the case put forth sufficient evidence to prove that their mental disturbances were serious. Id. at p. 18. As such, the record did not support a reasonable basis for the awards, and the Louisiana Supreme Court reversed the lower courts awards for negligent infliction of emotional distress damages.

On Remand The Louisiana Supreme Court noted in Spencer that this Court must review the district court’s factual determination under a manifest error standard. Spencer, 2022-00469, 2022-00539, 2022-00730, p. 8, 356 So. 3d at 945. Under this standard, we must review the record in its entirety and determine that a reasonable factual basis for the determination does not exist for the district court’s ruling. Id.

(citing Stobart v. State, through the Dep't of Transp. & Dev., 617 So. 2d 880, 882 (La. 1993)).

At the trial of this matter, Mr. Vitrano testified that he lived about a mile and a half away from the refinery. On the night of the incident, he was awakened by a loud explosion, and he witnessed fire and smoke coming from the refinery. Mr. Vitrano testified that he was unable to fall back asleep after the explosion and remained awake for hours. He also admitted that he did not seek any medical attention for a physical or mental injury. Mr. Vitrano did not provide any further evidence regarding his mental anguish. Similar to the Spencer plaintiffs, Mr. Vitrano failed to put forth sufficient evidence that his mental disturbance was serious and more than a generalized fear or inconvenience. In light of this, we find that the record does not contain a reasonable basis to support the district court’s award for negligent infliction of emotional distress damages.

Decree For the foregoing reasons, we grant Valero’s supervisory writ and reverse the judgment of the district court awarding Mr. Vitrano damages.

WRIT GRANTED; FEBRUARY 4, 2022 JUDGMENT REVERSED; AND JUDGMENT RENDERED