MARKS v. WALMART INC (2025)

In this appeal, Walmart, Inc. challenges a judgment awarding special and general damages to a customer whose vehicle remained in a Walmart parking lot for almost two years after Walmart lost his keys while servicing his vehicle. After review, we amend in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

On June 21, 2022, James Marks brought his 2018 Nissan Kicks to the Walmart automotive center in New Roads, Louisiana, for an oil change. After the oil change was completed and Mr. Marks paid for the service, the Walmart clerk advised him that the keys to his vehicle had been lost. Walmart's video surveillance footage revealed that Mr. Marks’ keys had been mistakenly given to another customer. According to Mr. Marks, Sherlanda Derozan, the Walmart auto care manager, instructed him to return to the store in three days to “see about getting ․ a key.” Mr. Marks left the next: morning for his offshore job in Mississippi.

On June 23, 2022, Mr. Marks rented a vehicle and drove back from Mississippi to Walmart in New Roads to follow up on obtaining a replacement key for his vehicle. According to Mr. Marks, he spoke to Ms. Derozan again, who explained that she had contacted a Nissan dealership and obtained an estimate of $325 for a duplicate key. Because the cost of the duplicate key and charges to have the vehicle towed to the Nissan dealership totaled $600, exceeding her maximum reimbursement authority of up to $500, she advised Mr. Marks that she was required to submit a claim for reimbursement to Walmart's corporate office. Mr. Marks contacted a person named Rudy at the corporate office, but the claim remained unresolved and Mr. Marks’ vehicle remained in the Walmart parking lot.

Upon his return from offshore work in September 2022, Mr. Marks went to Walmart to check the status of his claim.¹ Mr. Marks testified that he was advised that Walmart had closed his case. Ms. Derozan testified that Walmart would have reimbursed Mr. Marks for a duplicate key, but she would have needed a receipt documenting the key purchase and Mr. Marks never produced an invoice or receipt for a duplicate key.

On April 25, 2023, approximately 10 months after his keys were lost, Mr. Marks filed a petition seeking damages for the loss of the use of his vehicle and for mental anguish and distress. Walmart answered the petition and asserted affirmative defenses, including Mr. Marks’ failure to mitigate his damages.

The matter proceeded to a bench trial on April 30, 2024. Mr. Marks conceded at trial that he did not attempt to contact a Nissan dealership, locksmith, or other third party vendor for a replacement key; he did not attempt to have his vehicle towed to a Nissan dealership; he did not submit an estimate to Walmart for a replacement key; and, at the time of trial approximately 22 months later, his vehicle remained in the Walmart parking lot.

At the conclusion of the trial, the trial court stated in oral reasons that Mr. Marks’ placement of the keys with the Walmart automotive center was an onerous deposit pursuant to La. C.C. art. 2930,² such that Walmart was responsible for the value of the replacement key, approximately $325, as well as for the cost of a rental vehicle for Mr. Marks to return to work in Mississippi. The trial court determined that, because Mr. Marks was required to work offshore from June 22, 2022, through September 2022, he was unable to obtain a replacement key and was thus also unable to mitigate his damages within that timeframe. The trial court further determined, however, that, upon his return from offshore work in September 2022, Mr. Marks “could have easily contacted Nissan and/or a locksmith to come and provide him with a key to get his vehicle and/or a locksmith to change the locks in order for him to be able to make use of his vehicle” but that “leaving [his] vehicle out there that long after that September time period was unreasonable.” The trial court concluded Mr. Marks was entitled to damages from June 21, 2022 through September 2022, comprised of special damages for expenses incurred for a rental vehicle, loss of use, and a replacement key, as well as $10,000 in general damages for “loss of convenience and mental anguish.”³

On May 15, 2024, the trial court signed a judgment in favor of Mr. Marks and against Walmart for $11,440.50, plus judicial interest and costs. Walmart now appeals, contending the trial court erred in awarding Mr. Marks special damages for rental vehicle expenses incurred after September 2022 and in awarding Mr. Marks general damages.

DISCUSSION

Special Damages

In its first assignment of error, Walmart contends the trial court erred in awarding Mr. Marks rental vehicle costs incurred after September 2022, after having determined that, at that point, Mr. Marks could have “easily” contacted Nissan, obtained a new key, and then retrieved his vehicle.

Special damages have a ready market value that theoretically can be determined with relative certainty. Waters v. Hebert, 2019-0435 (La. App. 1 Cir. 11/20/19), 291 So.3d 278, 282. A plaintiff must prove special damages by a preponderance of the evidence. Pinn v. Pennison, 2016-0614 (La. App. 1 Cir. 12/22/18), 209 So.3d 844, 849. This Court reviews an award of special damages under the manifest error standard of review. Waters, 291 So.3d at 282.

The evidence at trial established that Mr. Marks incurred the following rental vehicle expenses:

At the conclusion of trial, the trial court made a factual finding that Mr. Marks failed to mitigate his damages after he returned from offshore in September 2022; accordingly, the trial court stated that it would specifically limit the award of special damages for rental vehicle costs to the three-month time period from June 22, 2022, through September 2022, during which time Mr. Marks was working offshore and was not able to mitigate his damages. However, the trial court then signed a judgment awarding Mr. Marks $1,115.50 in special damages, representing the total amount of all rental vehicle expenses Mr. Marks incurred from June 2022 through March 2023. We find this award to be manifestly erroneous because it is inconsistent with the trial court's factual findings and is not supported by the record.

Thus, in accordance with the trial court's factual findings as set forth in its oral reasons, which are supported by the record, we amend the award of special damages to award Mr. Marks rental vehicle expenses incurred from June 22, 2022, through September 2022, for an award of $456.66, plus the $325 replacement key cost, for a total of $718.66.

General Damages

In its remaining two assignments of error, Walmart contends the trial court erred in awarding Mr. Marks general damages.⁴

General damages are those that are inherently speculative and cannot be fixed with mathematical certainty. They involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle that cannot be definitely measured in monetary terms. CD v. SC, 2022-00961 (La. 6/1/23), 366 So.3d 1245, 1248-49; Bryant v. Helix Energy Solutions, Inc., 2023-1290 (La. App. 1 Cir. 12/11/24), 404 So.3d 804, 815. Herein, as mentioned, the trial court awarded Mr. Marks $10,000 in general damages for the time period from June 21, 2022 to September 2022.

Louisiana courts have allowed recovery for negligently inflicted emotional distress, mental anguish, and inconvenience resulting from damage to property, absent physical injury, only in four categories of cases: (1) when the property was damaged by an intentional or illegal act; (2) when the property was damaged by acts giving rise to strict or absolute liability; (3) when the property was damaged by activities amounting to a continuous nuisance; and (4) under circumstances where the owner was present or nearby at the time, or shortly after, the damage occurred and suffered psychic trauma in the nature of or similar to a physical injury as a direct result of the incident itself. Sierra v. American Alternative Ins. Corp., 2013-1808 (La. App. 1 Cir. 6/18/14), 147 So.3d 1125, 1129. The jurisprudence has limited such recovery by requiring that the psychic trauma be severe and not merely the result of the usual, upset, worry, or anxiety attendant to property damage. See Id. Every incident of property damage is necessarily accompanied by some degree of worry and consternation over such things as possible financial loss, settlement of insurance claims, and discomfort or inconvenience while awaiting and undergoing repair work. See Id. An owner of damaged property may not recover for such unless he proves he suffered a psychic trauma in the nature of or similar to a physical injury, as a direct result of the property damage. Id. The trial court's findings as to whether a property owner experienced trauma is a factual determination, which this Court will not disturb on appeal in the absence of manifest error. See Enriquez v. Safeway Insurance Company of Louisiana, 52,425 (La. App. 2 Cir. 1/16/19), 264 So.3d 648, 655.

At trial, Mr. Marks testified that dealing with this incident had been “very stressful” and that he had “been wrestling with this case for two years.” However, Mr. Marks testified that he was not prescribed any medication as a result of this incident. He further candidly testified that he had trouble sleeping, but that it was “not from the car incident” and admitted that his “trouble sleeping has nothing to do with the lost car key[.]” Moreover, despite Mr. Marks’ testimony that he has been “wrestling with this case for two years,” the trial court's damage awards were limited to a three-month period from June 21, 2022, through September 2022, after which time period the trial court found that Mr. Marks failed to mitigate his damages and make any effort to attain a replacement key for his vehicle.

On review of the testimony and documentary evidence herein, the sole evidence supporting the trial court's award of general damages is Mr. Marks’ testimony that he was very stressed. We do not find this degree of psychic trauma rises to the level of “severe” or a psychic trauma in the nature of a physical injury so as to substantiate an award for general damages. See Sierra, 147 So.3d at 1129. Instead, we find the stress described by Mr. Marks at trial was stress resulting from the usual upset, worry, or anxiety attendant to property damage. Simply stated, Mr. Marks’ testimony alone is insufficient to support an award for general damages. Accordingly, we find the trial court manifestly erred in awarding Mr. Marks general damages as a result of damage to property where such an award is not supported by the record.

Having concluded that Mr. Marks is not entitled to general damages under a tort theory, we now turn to whether Mr. Marks is entitled to an award of general damages due to Walmart's alleged breach of a contract of deposit, considering the trial court's determination that Mr. Marks’ transfer of his vehicle key to Walmart was an onerous deposit. A deposit is a contract by which a person, the depositor, delivers a movable thing to another person, the depositary, for safekeeping under the obligation of returning it to the depositor upon demand. La. C.C. art. 2926. Thus, to the extent that Mr. Marks sought general damages under the theory of breach of a contract for deposit, we note that La. C.C. art. 1998 provides for damages for a nonpecuniary loss when a contract is intended to gratify a nonpecuniary interest. However, Mr. Marks points to no evidence in the record showing the subject oil change contract was intended to gratify a nonpecuniary interest. See Aucoin v. Southern Quality Homes, LLC, 2007-1014 (La. 2/26/08), 984 So.2d 685, 696; Young v. Ford Motor Co., Inc., 595 So.2d 1123, 1134 (La. 1992) (noting plaintiff failed to make requisite showing of having entered into contract to gratify a significant nonpecuniary interest as required by La. C.C. art. 1998). Even if it was, mere worry or vexation is not a compensable nonpecuniary loss. See La. C.C. art. 1998, Revision Comments - 1984, comment (e). Accordingly, we further find that the trial court erred in concluding Mr. Marks was entitled to an award of general damages under the theory of breach of a contract for deposit.

Finding merit to Walmart's assignments of error, we reverse the trial court's award of general damages to Mr. Marks.

CONCLUSION

For the above reasons, we amend the May 15, 2024 judgment in part and reverse it in part. We amend the award of special damages to $718.66. We reverse the award of general damages. We assess costs of this appeal to James Marks.

AMENDED IN PART; REVERSED IN PART.

I must respectfully agree in part and dissent in part.

I agree with the majority's amendment to correct the special damages award, which is fully supported by the record. I likewise agree that Mr. Marks has not proven his entitlement to an award of damages for mental anguish, strictly speaking, by merely claiming he was “very stressed.”

However, I believe that the majority conflates damages for the inconvenience associated with property loss with damages for mental anguish, or psychic trauma, which is more in the nature of a physical injury. The trial court awarded general damages for both inconvenience and mental anguish. Walmart's assignment of error speaks to this latter category of damages when it references “general damages for mental anguish.” I do not believe Walmart has properly assigned error to the award for inconvenience, as an element of tort damages separate and apart from mental anguish. This court only reviews issues raised on appeal. Frandria v. Holden, 2020-0410 (La. App. 1st Cir. 12/30/20), 319 So. 3d 332, 337, writ not considered, 2021-00692 (La. 9/27/21), 324 So. 3d 102. Thus, I believe this court is without authority to review that portion of the general damage award. Frandria, 319 So. 3d at 337.

Moreover, a general damage award for mental anguish caused by damage to one's property is separate and distinct from a general damage award for inconvenience for loss of that property. See McDonald v. Illinois Central Gulf Railroad Company, 546 So. 2d 1287, 1292 (La. App. 1st Cir.), writs denied, 551 So. 2d 1340 (La. 1989); Simple Enterprises, Inc. v. Texas Property, LLC, 2017-222 (La. App. 3rd Cir. 12/28/17), 2017 WL 7513562, *4-5 (unpublished); Zaveri v. Husers, 2016-866 (La. App. 3rd Cir. 6/21/17), 224 So. 3d 3 89, 403-405, writ denied, 2017-1286 (La. 11/6/17), 229 So. 3d 475; Enriquez v. Safeway Insurance Company of Louisiana, 52,425 (La. App. 2nd Cir. 1/16/19), 264 So. 3d 648, 653-654.

Because the trial court did not itemize the amount of general damages awarded for mental anguish and the amount awarded for loss of convenience, I would remand this matter to the trial court to identify that portion of the general damages which represents an award for inconvenience, as opposed to the award for mental anguish. See Derouen v. Mallard Bay Drilling, LLC., 2000-1268 (La. App. 1st Cir. 6/22/01), 808 So. 2d 694, 710 (where this court remanded to the trial court for an apportionment of the general damage award); Nielsen v. Northbank Towing, Inc., 1999-1118 (La. App. 1st Cir. 7/13/00), 768 So. 2d 145, 164-166, writ denied, 2000-2423 (La. 11/3/00), 773 So. 2d 149 (because the judgment did not delineate between past and future damages, this court remanded for the trial court to apportion the damage award into past and future components and to calculate prejudgment interest).

FOOTNOTES

1.   The exact date of Mr. Marks’ return from offshore work is not clear from the record.

2.   Louisiana Civil Code article 2930 provides:When the deposit is onerous, the depositary is bound to fulfill his obligations with diligence and prudence.When the deposit is gratuitous, the depositary is bound to fulfill his obligations with the same diligence and prudence in caring for the thing deposited that he uses for his own property.Whether the deposit is gratuitous or onerous, the depositary is liable for the loss that the depositor sustains as a result of the depositary's failure to perform such obligations.

3.   In its oral reasons for judgment, the trial court stated its damage award to Mr. Marks was for “loss of use of his vehicle as well as mental anguish” and then more specifically stated that it would award $10,000 in general damages for “loss of convenience and mental anguish ․ plus the special damages for the rental vehicle ․.” Normally, damages for loss of use of a vehicle are classified as special damages measured by the rental cost of a substitute vehicle. See Abrams v. Dinh, 471 So.2d 994, 998 (La. App. 1 Cir. 1985); see also Lopez v. Cosey, 2016-0812 (La. App. 1 Cir. 2/17/17), 214 So.3d 18, 25-26; Enriquez v. Safeway Insurance Company of Louisiana, 52,425 (La. App. 2 Cir. 1/16/19), 264 So.3d 648, 652. But, in some cases, damages for the loss of use of a vehicle need not be restricted to rental costs and may include a general damage component. See Alexander v. Qwik Change Car Center, Inc., 352 So.2d 188, 190 (La. 1977); Pourciau v. Melville, 2018-0385 (La. App. 1 Cir. 9/21/18), 2018 WL 4520283, *6 (declining to award loss of use damages of a totaled vehicle when there was no evidence that plaintiff rented a replacement vehicle nor regarding any damages related to the loss of use). On the other hand, damages for “loss of convenience” are properly classified as general damages. Enriquez, 264 So.3d at 652. Under the facts of this case, we review Mr. Marks’ loss of use damages as special damages and his loss of convenience damages as general damages.

4.   In assignments of error number two and three, Walmart phrases its challenge on appeal to the trial court's award of “general damages for mental anguish.” However, in the body of its appellate brief, Walmart also phrases its challenge as pertaining to the award of “general damages in connection with a property damage claim,” “non-pecuniary damages,” and, “general damages associated with an oil change resulting in a lost car key.” Further, Walmart argues “it was a clear abuse of discretion for the trial court to award [Mr. Marks] $10,000 in general damages,” and asks this Court to “remove the award of general damages in its entirety.” We acknowledge that general damage awards can be dissected into elements. See McGee v. A C and S, Inc., 2005-1036 (La. 7/10/06), 933 So.2d 770, 774. However, reading Walmart's brief as a whole, we interpret its appeal as challenging the entire general damage award, not just certain elements.

GREENE, J.

Miller, J., dissents with reasons in part Wolfe, J., agrees in part and dissents in part