Covington v. Howard

• Decision Date: 13 August 2014
• Docket Number: 49,135–CW.
• Citation: 146 So.3d 933
• Parties: Heather COVINGTON, Plaintiff–Writ Respondent v. Christopher HOWARD and Knight Transportation, Inc., Defendant–Writ Applicant.
• Court: Court of Appeal of Louisiana — District of US

146 So.3d 933

Heather COVINGTON, Plaintiff–Writ Respondent

v.Christopher HOWARD and Knight Transportation, Inc., Defendant–Writ Applicant.

49,135–CW.

Court of Appeal of Louisiana, Second Circuit.

Aug. 13, 2014.

Richard L. Fewell, Jr., Duncan M. Jones, West Monroe, for Writ Respondent.

Cook, Yancey, King & Galloway, Shreveport, by Brian A. Homza, Allison C. Foster, for Defendant Writ Applicants.

Before CARAWAY, MOORE and GARRETT, JJ.

Opinion

MOORE, J.

The defendants, Christopher Howard and Knight Transportation, Inc., applied for a writ of review of the district court's judgment denying their motion for summary judgment. We granted the application, docketed the case for oral argument and directed the parties to submit briefs. For the following reasons, we make the writ peremptory, grant the motion for summary judgment and dismiss the plaintiff's claim.

Facts

On February 14, 2011, Heather Covington was driving west on I–20 when she drove over an object in the road that she mistakenly believed was a paper plate or paper cup. In fact, the object was a drive shaft that had fallen from a tractor-trailer truck driven by Christopher Howard and owned by Knight Transportation, Inc. Howard had pulled over on the roadside further down the Interstate. Traveling at 70 miles per hour, Covington decided to straddle the object with her vehicle. As she passed over the object, she felt the car jerk and heard a noise. Alarmed, she pulled her car onto the shoulder. The drive shaft was lodged under her vehicle. Friction from the drive shaft rubbing the concrete surface created enough heat to ignite a minor grass fire. Covington's vehicle also suffered some minor damage, including a flat tire.¹

Although she suffered no physical injuries, Covington filed a petition for damages on February 13, 2012, against Knight and Howard (collectively “Knight”) for pain and suffering, mental anguish and medical expenses caused by their negligence. Covington began seeing a psychologist, Dr. E.H. Baker, on March 10, 2011.

Knight filed an answer denying the allegations and alleging nine “affirmative defenses.” Thereafter, on July 10, 2013, Knight filed a motion for summary judgment asserting that the plaintiff cannot meet her burden of proving that Knight's acts or omissions constituted “outrageous conduct” that caused the plaintiff genuine and serious emotional distress. Attached to their motion were the affidavit of Covington and her psychologist, Dr. E.H. Baker. Knight alleged no issues of material fact and entitlement to summary judgment as a matter of law.

Covington opposed the motion. She argued that the special circumstances of the accident created by her fragile pre-existing mental condition caused her to suffer genuine emotional distress which she continues to experience. This mental distress, she argues, has led to physical consequences such as sleeplessness, nightmares and poor appetite. Dr. Baker stated in his deposition that the accident was the final straw (that broke the camel's back), pushing her over the edge into generalized anxiety disorder

.

After a hearing on December 17, 2013, the district court denied Knight's motion, stating that there remained issues of material fact regarding the report of Dr. Baker, who acknowledged that the incident would have aggravated the plaintiff's pre-existing mental condition. The court also noted that there was some property damage to the plaintiff's vehicle that distinguished the case from Moresi v. State, Through Dept. of Wildlife & Fisheries, 567 So.2d 1081 (La.1990). This writ application followed.

Discussion

The defendants' sole assignment of error is that the trial court erred by denying their motion for summary judgment because the plaintiff cannot meet her burden of proving certain essential elements of her claim for negligent infliction of emotional distress. Specifically, they contend she cannot meet her burden of proving: (1) the “especial likelihood of genuine and serious mental distress arising from special circumstances” required to recover mental distress damages; (2) outrageous conduct by the defendants; and, (3) that her mental distress was caused by the incident.

General Principles

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963) ; Jones v. Foster, 41,619 (La.App. 2 Cir. 12/13/06), 945 So.2d 262 ; Foley v. Sportran, 40,624 (La.App. 2 Cir. 5/17/06), 930 So.2d 368. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2) ; Racine v. Moon's Towing, 2001–2837 (La.5/14/02), 817 So.2d 21. The motion should be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

Supporting and opposing affidavits “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” La. C.C.P. art. 967(A). Personal knowledge means something the witness actually saw or heard, as distinguished from what he learned from some other person or source. Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978) ; Wells v. Red River Parish Police Jury, 39,445 (La.App. 2 Cir. 3/2/05), 895 So.2d 676, writ not cons., 2005–0854 (La.5/13/05), 903 So.2d 438.

The burden of proof remains with the mover; however, if the mover will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, then the mover may merely point out to the court the absence of factual support for one or more elementsessential to the plaintiff's claim. The burden then shifts to the plaintiff to present evidence demonstrating that genuine issues of material fact remain. La. C.C.P. art. 966(C)(2) ; Hardy v. Bowie, 98–2821 (La.9/8/99), 744 So.2d 606 ; Foley v. Sportran, supra. If the plaintiff then fails to produce such evidence, then summary judgment is proper. King v. Phelps Dunbar LLP, 98–1805 (La.6/4/99), 743 So.2d 181.

Appellate review of the grant or denial of a summary judgment is de novo. Jones v. Estate of Santiago, 2003–1424 (La.4/14/04), 870 So.2d 1002 ; Jones v. Foster, supra; Row v. Pierremont Plaza LLC, 35,796 (La.App. 2 Cir. 4/3/02), 814 So.2d 124, writ denied, 2002–1262 (La.8/30/02), 823 So.2d 952.

“Negligent Infliction of Emotional Distress ”

Although negligent infliction of emotional distress (“NIED”) is not an independent tort like battery, trespass, or intentional infliction of emotional distress, etc., Moresi, supra, it is now well established in Louisiana jurisprudence that a claim for NIED unaccompanied by physical injury is viable under La. C.C. art. 2315, which provides, in pertinent part, that “[e]very act whatever of man that causes damages to another obliges him by whose fault it happened to repair it.” Courts utilize a duty-risk analysis to assist in determining whether one may recover under La. C.C. art. 2315. Bordelon v. St. Frances Cabrini Hosp., 93–1331 (La.App. 3 Cir. 5/4/1994), 640 So.2d 476. For liability to attach, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard (the breach of duty element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) actual damages (the damages element). Mathieu v. Imperial Toy Corp., 94–0952 (La.11/30/94), 646 So.2d 318. A negative answer to any of those inquiries results in a determination of no liability. Mathieu, 94–0952 at p. 11, 646 So.2d at 326.

Additionally, for those NIED claims unaccompanied by physical injury, recovery is limited to facts constituting “special circumstances” involving the especial likelihood of real and serious mental distress arising from the particular circumstances. Moresi, supra; Crockett v. Cardona, 97–2346 (La.App. 4 Cir. 5/20/98), 713 So.2d 802. The guidelines for limiting recovery in NIED cases unaccompanied by physical injury reflect “the intent of the legislature and courts * * * to limit the class of claimants and prevent false claims. This policy protects the court's time and limited resources.” Crockett, supra at 805. The practical effect of these policy limitations is to narrow the scope of the defendant's duty.

Both parties in this case contend that the principles laid down in Moresi for evaluating the viability of a NIED claim support their respective positions.

In Moresi, supra, the plaintiffs alleged that they suffered mental distress as a result of a “threatening” note written on the back of a wildlife agent's business card and pinned to their camp door. The note read: “We missed you this time but look out next time.” Just two months earlier, the plaintiffs had been subjected to an allegedly wrongful search, seizure and arrest by game agents, and they assumed that the note on their door constituted further harassment by the agents. The evidence at trial indicated that the agents, who were not involved in the prior investigation, mistakenly believed they were placing the note on the camp of their friend, but misread the directions to his camp. Nevertheless, the trial court awarded each plaintiff $1,000 for his mental distress resulting from the misplaced message. The court of appeal affirmed the award. The supreme court granted certiorari.

The supreme court observed that most...