The Louisiana Supreme Court answered the question of when general damages are recoverable for mental anguish by tort plaintiffs who suffer no physical injury in Spencer v. Valero Refining Meraux, LLC. In this action which involved the claims of four plaintiffs, an accident, fire, and explosion occurred at the Valero refinery in Meraux, Louisiana at 12:45 a.m. Nearly 32 hours later, at 10:00 a.m. on April 11, 2020, the fire was extinguished. Although no significant levels of chemicals were detected as a result of the explosion, multiple residents who lived in the vicinity of the refinery filed suit for negligent infliction of emotional distress.
In their complaints, each plaintiff alleged hearing loud sounds at the time of the explosion and feeling nervous or anxious after the explosion. The plaintiffs also alleged disturbances to their sleep, but each were able to return to normal sleep schedules and resume their daily activities in the days and weeks after the explosion. The court noted that none of the plaintiffs received medical treatment or experienced any physical symptoms, and the damages sought by the plaintiffs were only for general fear and anxiety resulting from the explosion.
In determining whether Valero was liable for negligent infliction of emotional distress, the court considered the jurisprudence relied on by the parties. In Moresi v. Department of Wildlife and Fisheries, the Louisiana Supreme Court considered whether a trial court properly awarded plaintiffs damages for negligent infliction of emotional distress. The plaintiffs had not alleged that they suffered any bodily harm or property damage as a result of the Louisiana Department of Wildlife and Fisheries agents’ negligence. Instead, the plaintiffs alleged that the agents’ ordinary negligence caused them mental disturbance.
The Louisiana Supreme Court noted in Moresi that generally, if a defendant’s conduct is merely negligent and causes only mental disturbances, in the absence of accompanying physical consequences or injuries, the defendant is not liable for such emotional disturbance. Louisiana courts have deviated from the general rule; however, as the court in Moresi noted, where there have been deviations, the cases all fell into categories where there was an “especial likelihood of genuine and serious mental distress, arising from special circumstances. . . .” In Moresi, the court found that the plaintiffs’ mental disturbances were not severe, or “related to personal injury or property damage, and the plaintiffs were not in great fear of their personal safety.” Therefore, the case did not fall into a category that had an especial likelihood of genuine and serious mental distress, and it lacked any elements that would guarantee the genuineness of the injury claimed.
In Spencer, after examining the relevant jurisprudence, the Louisiana Supreme Court noted that for negligent infliction of emotional distress, a plaintiff is required to prove “the especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious.” This rule must be stringently applied in cases that are inherently speculative in nature, and the defendant’s actions must constitute negligence. Additionally, the plaintiff’s mental disturbance must be “serious.”
The court noted that in analyzing whether a plaintiff’s mental disturbance is serious, evidence of generalized fear or mere inconvenience is insufficient. A plaintiff is not required to present evidence of medical treatment or history, but he or she bears the burden of presenting sufficient evidence on the nature and extent of the mental anguish suffered. Further, emotional distress does not need to be reasonably foreseeable or severe and debilitating, and whether mental distress is serious is a matter of proof.
These guidelines, the court went on, must be applied with necessary policy considerations, including deterring future harm, economic considerations, and opening the floodgates to unnecessary litigation. The court considered that the purpose of tort law is “to protect some persons under some risks.” In applying the policy considerations and guidelines to the facts of this case, the court found that Valero owed a duty to protect those in the surrounding community and that the plaintiffs fell within the class of plaintiffs to whom the duty is owed. The court also found that Valero breached the duty owed, and that breach was the cause-in-fact of the plaintiffs’ generalized fear and anxiety. However, under the stringent application of the rule from Moresi, the plaintiffs failed to prove the “especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious.” Further, no plaintiff put forth sufficient evidence that their mental disturbances were “serious.” Therefore, the plaintiffs did not prove the element of damages within the parameters of claims for negligent infliction of emotional distress absent physical damage or injury, and there was no factual basis for an award for such claim.
The Louisiana Supreme Court added that recovery for negligent infliction of emotional distress in the absence of physical damage or injury is not precluded. However, because of the nature of such claims, courts must be mindful of the policy goal of preventing spurious claims, and not every harm yields accompanying liability and damages. Here, none of the plaintiffs established that the mental disturbances they suffered were “serious.”
As Justice Crain noted his concurrence, however, one problem with the majority’s decision is that “serious” was not defined; rather, it was left to be defined “in an ad hoc manner.” Crain signaled that he would move in the direction of code-based analysis rather than fact-specific inquiry the court adopted. He then suggested that the “zone of danger test” was applicable in this case, and Valero did not breach its duty to the plaintiffs because there were no chemicals released into the area of their homes. Also in concurrence, Justice Weimer noted that in limiting recovery, he would not impose guidelines which are applied with policy considerations that are not tethered to legislation. Instead, he suggested that the Louisiana Civil Code provides a more appropriate analysis under article 2315.6 which reflects the legislative will of limiting claims for negligent infliction of emotional distress without physical damage or injury.
The majority opinion in Spencer, written by Justice Genovese, rejected a “direct duty” owed by defendants to plaintiffs as a condition for recovery of negligent infliction of emotional distress in the absence of physical injury or damage. Instead, the court applied guidelines from relevant jurisprudence and policy considerations to come to its conclusion, and it emphasized that these cases are fact intensive. In doing so, the court rejected a code-based analysis and established a fact-specific standard for sufficient proof of damages.
 Spencer v. Valero Refining Meraux, L.L.C., 2023 WL 533268, at *1 (La. 2023).
 Id. at *2.
 Id. at *3–4.
 567 So. 2d 1801 (La. 1990).
 Moresi, 567 So. 2d at 1096 (In determining whether the sufficiency of the plaintiff’s claim, the court noted the general rule that the absence of accompanying physical injury, illness, or other physical consequences, a defendant is not liable for such emotional disturbance. However, Louisiana has deviated from the general rule. The court noted circumstances where Louisiana courts have allowed recovery for negligent infliction of emotional distress in the absence of physical injury, including: negligent transmission of a message, especially one announcing death, mishandling of corpses, failure to install, maintain or repair consumer products, failure to develop film, and negligent damage to one’s property while the plaintiffs were present and saw their property damaged).
 Id. at *8.; see also Moresi, 567 So. 2d at 1096.
 Spencer, 2023 WL 533268, at *8.
 Id. at *9.
 Id. at *16 (Crain, J., concurring).
 Id. at *14 (Crain, J., concurring).
 Id. at *12 (Weimer, C.J., concurring).