When defending claims of mental injury/distress in New Orleans and in Louisiana, defense counsel must take into consideration what type of mental injury claim is being made. Like many jurisdictions, Louisiana law contemplates three kinds of mental injury/distress:
- Direct victim mental injury — mental injury flowing directly from the alleged bad actions of the defendant
- Bystander mental injury — mental injury following observing some horrific scene/behavior and
- Intentional infliction of emotional distress
When defending Louisiana negligence cases, some defense tactic/strategies can be used for each/all of these types of mental injuries (e.g., demanding an independent psychological evaluation). In general, the best defense strategy will vary depending on the type of mental injury/distress that is being claimed. As always, the touchstones here are the Louisiana Civil Code and case law.
This article discusses strategies for defending claims of direct mental injury. Later articles will discuss strategies for defending the bystander emotional distress rule and defending other circumstances where mental injuries/damages can be asserted.
Louisiana Claims of Mental Injury: Direct Mental Injury
Louisiana does not recognize a stand-alone cause of action for negligent infliction of emotional distress. See Bacas v. Falgoust, 760 So. 2d 1279 (La. App. 5th Cir. 2000) (McManus, J. concurring).
Any claim for emotional distress or trauma must flow from some other bad behavior such as breach of contract or from a tort. Moresi v. State, Dept. of Wildlife & Fisheries, 567 So. 2d 1081 (La. Supreme Court 1990) (discussing mental injuries). This is codified at La. Civ. Code Art. 2315 which states in pertinent part:
- Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
- Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person. Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease.
Clearly, Art. 2315 contemplates recovery for mental injuries. This is consistent with long-standing Louisiana case law. As one of many examples, see St. Julien v. South Cent. Bell Telephone Co., 433 So. 2d 847 (La. App. 3rd Cir. 1983). In that case, an employee of the telephone company came into the plaintiffs’ home, disturbed belongings and the furnishings, but failed to leave a note or otherwise notify the homeowners that the telephone company employee had been in the apartment. The plaintiffs believed that they had been the victim of burglary. Upon discovering the truth, they sued the phone company for trespass and claimed mental injury. As described by the Court of Appeals:
“Plaintiffs testified as to their fright and mental distress when they discovered someone had entered their home during their absence without their knowledge or consent. They no longer felt secure in their home. Mr. St. Julien placed a chair next to the entrance each night before retiring and kept a pistol on a table next to his bed despite their child’s fear of guns. Defendants made no attempt to controvert this.”
The Court of Appeals awarded the plaintiffs $1,000.00 to compensation them for their mental suffering.
Defense Strategies: Direct Mental Injury
There are several strategies in defending these types of direct mental injury claims including:
- Demanding an independent psychological/psychiatric examination
- Seeking discovery on any physical manifestations of the mental anguish — absence would suggest merely mild “mental disturbance” — medical records
- Seeking discovery with respect to medications for any alleged mental anguish — no need for medication would suggest merely mild “mental disturbance”
- Arguing/working up facts showing no causation
- Arguing/working up facts showing preexisting condition
Case law makes it clear that the emotional distress must be severe. There is no recovery for a mere “mental disturbance.” Baca, above.
Some case law seems to require that a physical manifestation must be present for mental anguish to be compensable. See Gonzales v. Ochsner Clinic Foundation, 170 So. 3d 1099, 1106 (La. App. 5th Cir. 2015) (“… if a defendant’s conduct is merely negligent and it causes only mental disturbance without a physical consequence, the defendant is not liable for the emotional injury.”) However, such cases appear to be in the minority, so it may be wiser to argue about physical manifestation as a factual issue, rather than as a legal issue.
Defending Louisiana Negligence Cases: Contact an Experienced Louisiana Defense Lawyer
If you want further information about defending Louisiana negligence claims and defeating claims related to mental injuries, an experienced Louisiana insurance defense lawyer can help you.
The author may be contacted at:
Kristin M. Lausten
This article is provided as an educational service for general informational purposes only. The material does not constitute legal advice or rendering of professional services.