55 So. 3d 37
La. Ct. App.2010Background
- Demery purchased 857 Sherwood Dr. in 1998; City later identified a leak in a city drainage pipe under her yard and along her house.
- City relocated the drainage line to run along a public street and added catch basins; relocation completed in 2005.
- Demery filed suit in Sept. 2005 for property damage and emotional distress due to alleged maintenance failures.
- Trial court excluded documentary evidence after a scheduling-order breach; on writ, appellate court reversed but imposed sanctions on counsel.
- Court found the pipe leak caused soil erosion, a sink hole, and minor settlement; awarded Demery $6,000 for stabilization and filling the sink hole; emotional distress and flooding claims rejected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Damage award adequacy for property damage | Demery seeks greater compensation for structural repair | City argues damages were insufficient and not proven | Court affirms $6,000 award; weight given to expert Cole and credibility |
| Recovery for emotional distress | Property damage caused psychic trauma and depression | No direct causal link proven between leak and depression | Court upholds dismissal of emotional-distress damages |
| Loss of enjoyment of life damages | Damage to lifestyle due to property harm warrants hedonic damages | There is no personal-injury basis or lifestyle alteration proven | No hedonic damages awarded; lack of personal-injury element |
| Economic loss/repair costs | Total repair costs and property depreciation warranted higher award | Award reasonable and supported by credible testimony | Affirms that trial court did not abuse discretion; uses Cole's estimates; allows interim cost increase |
Key Cases Cited
- Day v. Ouachita Parish School Board, 823 So. 2d 1039 (La.App.2d Cir.8/8/02) (general damages overview; discretion of trial court in awards)
- Kemper v. Don Coleman, Jr., Builder, Inc., 746 So. 2d 11 (La.App.2d Cir.7/29/99) (real mental injury required for psychic damages)
- Graves v. Page, 703 So. 2d 566 (La.11/7/97) (manifest-error standard for reviewing factual findings)
- McGee v. A C and S, Inc., 933 So. 2d 770 (La.7/10/06) (loss of enjoyment of life as compensable under Art. 2315)
- Willis v. Safeway Insurance Company of Louisiana, 968 So. 2d 346 (La.App.2d Cir.10/24/07) (weighing credibility when evidence conflicts)