Gaynor v. State Farm Mutual Automobile Insurance

727 So. 2d 1279, 98 La.App. 4 Cir. 1374, 1999 La. App. LEXIS 357, 1999 WL 74629
CourtLouisiana Court of Appeal
DecidedFebruary 10, 1999
DocketNo. 98-CA-1374
StatusPublished
Cited by1 cases

This text of 727 So. 2d 1279 (Gaynor v. State Farm Mutual Automobile Insurance) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gaynor v. State Farm Mutual Automobile Insurance, 727 So. 2d 1279, 98 La.App. 4 Cir. 1374, 1999 La. App. LEXIS 357, 1999 WL 74629 (La. Ct. App. 1999).

Opinion

1McKAY, J.

The plaintiff Joyce Gaynor appeals a judgment against her for psychological damages that she sustained as a consequence of viewing an automobile accident on the 1-610.

On July 22, 1994, the plaintiff, Joyce Gay-nor was driving her car eastbound on 1-610 when her car began to sputter because of water accumulation on the road, causing her to pull over to the left side of the interstate. Ms. Gaynor and Ms. Layosa, her companion, left the vehicle to seek assistance. They climbed over a concrete highway barrier and across three westbound lanes and into an emergency lane on the opposite side of the highway from the scene of the incident. When they were approximately 100 feet away from the scene they heard a loud crash. The defendant’s vehicle had spun out of control due to puddling on the road and had hit Ms. Gaynor’s stalled vehicle causing considerable damage. The defendant insurance company State Farm paid Ms. Gaynor for her property loss in the amount of $2,858.68.

bThe appellant claims that after the accident she experienced severe emotional trauma and received two years of treatment for these traumatically induced complaints. These complaints included chest pains, anxiety attacks, depression, nausea, loss of appetite, shortness of breath and headaches. In her petition for damages she alleged that her condition resulted from viewing the destruction of her automobile.

A bench trial was held on February 5, 1998, and a judgment was rendered on February 19, 1998, against the appellant. The appellant claims that the trial erred when it found that she was not within the zone of danger when the impact occurred, that she suffered no severe physical or emotional injury as a result of viewing her property damaged, and that she was not entitled to a recovery for her damages.

In reviewing the factual findings of a trial court, an appellate court is limited to a determination of manifest error. Hill v. Morehouse Parish Police Jury, 95-1100 (La.1/16/96) p. 4, 666 So.2d 612, 614; Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 745; Stobart v. State through Dept. of Transp. And Development, 617 So.2d 880 (La.1993). “It is well settled that a court of appeal may not set aside a trial court’s ... finding of fact in the absence of ‘manifest error’ or unless it is ‘clearly wrong, and where there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review even though the appellate court may feel that its own evaluations and inferences are reasonable ...” Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989). “The reasons for this well settled principal of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the allocation of trial and [1281]*1281appellate functions between the respective courts” ... where two permissible views of the evidence exist, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883 (La.1993), (citing, Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973)).

The appellant claims that the trial court erred in failing to find that she was in the “zone of danger” when the impact to her automobile occurred. The appellant is advancing two separate theories of recovery based on mental anguish; one is based on a “zone of danger” theory and the other based on loss of property. The law in Louisiana is very nebulous as to the actual definition of “zone of danger.” “The zone of danger rule provides some mechanism for recovery of emotional injuries absent any physical contact, which result from the witnessing of peril or harm to another (emphasis added) if the plaintiff is also threatened with physical harm as a consequence of the defendant’s negligence.” Anselmi v. Penrod Drilling Corp., 813 F.Supp. 436 (E.D.La.1993). In Gaston v. Flowers Transp., 866 F.2d 816 (5th Cir.1989), the plaintiff witnessed his half brother being crushed to death between a barge and a tugboat. The plaintiff urged that recovery should be permitted under a zone of danger theory. Even though the court recognized that Louisiana law does allow recovery for those within ka zone of danger in relation to the injuring events, the court maintained that the plaintiff had made no showing that he even thought himself to be in danger. The plaintiff was not a direct victim. Id. at 820. In Anselmi, the plaintiff was a crane operator on a jack-up rig who had gone to bed in the living quarters when he was awakened by a loud whistle. The rig exploded and many members of the crew were injured. The plaintiff suffered no physical injury but was diagnosed with post traumatic stress disorder. The court maintained that the circumstances surrounding the fear-inducing occurrence may themselves supply sufficient indicia of genuineness. “It is for the jury to decide questions such as the existence, severity and reasonableness of the fear.” Anselmi, supra, at 440 (citing Hagerty v. L & L Marine Services, 788 F.2d 315, 318 (5th Cir.1986)). The Anselmi Court also noted that:

“Under the right circumstance, one may recover for purely emotional harm under a zone of danger theory if the facts place the plaintiff within the definable zone. What is necessary for a valid claim is that the claimant must have been objectively within a zone of danger, he must have feared at the time of the incident that his life or person was in danger and his emotional injuries must be reasonably foreseeable consequence of the defendant’s alleged negligence.”

Anselmi, supra, 813 F.Supp. at 439-42. The zone of danger theory preserves traditional tort doctrines of negligence, legal causation, and foreseeable risks. Id. at 443.

The zone of danger theory of recovery is employed in situations where the plaintiff has an impending fear of death or injury due to his proximity to an actual or near accident. We are reticent to expand this definition. What is clear fefrom the record in the instant case is that there is no way Ms. Gaynor was in the “zone of danger.” Accordingly, the trial court properly denied her claim for emotional distress based on a “zone of danger” theory of recovery.

The appellant additionally contests the trial court’s denial of recovery for non-peeuni-ary losses for the damage to her vehicle based on mental anguish/emotional distress. The appellant claims that as result of her property damage she developed a post traumatic stress disorder.

It is well established in Louisiana jurisprudence that recovery for mental anguish/emotional distress from property damage is possible even without actual physical injury or a manifestation of the physical injury. Our court in Blache v. Jones, 521 So.2d 530 (La.App. 4th Cir.1988), citing a long line of Louisiana jurisprudence, identified the four situations when a mental anguish award can result from property damage. The situations are:

((1) When property is damaged by an intentional or an illegal act;
[1282]

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727 So. 2d 1279, 98 La.App. 4 Cir. 1374, 1999 La. App. LEXIS 357, 1999 WL 74629, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaynor-v-state-farm-mutual-automobile-insurance-lactapp-1999.