Gasoline Leak in Lincoln Parish Demonstrates the Potential Perils of Prescription

In Louisiana, actions in tort must be brought within a certain period of time after the incident occurs. This is called the “prescriptive period,” and reflects the state’s position that “a plaintiff is responsible to seek out those whom he believes may be responsible for a specific injury,” Jordan v. Employee Transfer Corporation, 509 So.2d 420, 423 (La. 1987), and to file suit within a reasonable period of time. The specific prescriptive period for a given tort is set by statute. For example, the prescriptive period for damage to immovable, or real, property is one year. LSA C.C. Art. 3493. The one-year period “commences to run from the day the owner of the [land] acquired, or should have acquired, knowledge of the damage.” LSA C.C. Art. 3493. A plaintiff’s knowledge of damage is often closely connected with the concept of “constructive notice,” which has been defined by Louisiana courts as “whatever notice is enough to excite attention and put the injured party on guard or call for inquiry.” Campo v. Correa, 828 So.2d 502, 510-511 (La. 2002).

The expiration of the prescriptive period for property damage was central to the case of Hogg v. Chevron USA, Inc., No. 2009-CC-2632 (La. 2010). The Hogg family owned property in Ruston that was located next to Burt’s Chevron Station. In 1997, it was discovered that the gas station’s underground storage tanks were leaking. The tanks were replaced, after which the Louisiana Department of Environmental Quality (LDEQ) investigated for soil and groundwater contamination. In December 2001 and April 2002, the LDEQ sent the owners of property around Burt’s Chevron, including the Hoggs, letters informing them of the environmental contamination. The first letter, dated December 20, 2001, reported that environmental contamination had been detected in the vicinity of Burt’s Chevron as a result of a leaking underground storage tank system. The letter explained that the contamination had been detected in the subsurface soil and groundwater, and appeared to be migrating in a “west-northwesterly direction,” toward an unnamed stream on the Hoggs’ property. The letter further reported that water samples collected from the stream indicated “the presence of chemicals commonly found in gasoline (i.e., benzene, toluene, ethylbenzene, xylene).” The letter specifically warned the Hoggs: “Due to the direction of groundwater flow, there is a possibility that gasoline may have migrated underground from the Burt’s Chevron site to your property or that such migration may occur in the future.” The second letter, dated April 26, 2002, contained the results of ambient air sampling which revealed the presence of petrochemicals in the area of the stream. A map enclosed with the letter showed that the tests were actually conducted on the Hoggs’ property. The LDEQ also recommended that the Hoggs “limit the time spent in the area immediately adjacent to the stream.”

The Hogg family did not file suit against E. Lee Young, the owner of Burt’s Chevron, until September 6, 2007–shortly after they were contacted by the LDEQ to request permission to enter their property to conduct clean-up. In the district court, Young filed a motion for summary judgment arguing that the one-year prescriptive period for filing the tort action had expired. Young’s theory was that the period began to run when the Hoggs received the letters from the LDEQ in 2001 and 2002, as the letters provided them with notice of the presence of gasoline on their property. The Hoggs countered that the LDEQ’s letters were subject to more than one interpretation, thereby rendering the reasonableness of the Hoggs’ lack of response a question of fact that should go to a jury. The district court denied Young’s motion, finding issues of fact about whether the LDEQ’s letters provided knowledge of damage sufficient to start the running of the prescriptive period.

On appeal, the Supreme Court of Louisiana essentially reframed the nature of the dispute. The court stated:

“the dispute in this case centers around whether the information conveyed in the letters was sufficient to commence the running of prescription. Thus, while the question of subjective knowledge is ordinarily inappropriate for resolution by summary judgment, such a question is not presented here. In this case, there is no question as to what the plaintiffs knew and when. Plaintiffs’ knowledge is contained in the letters. The question presented is whether this knowledge constitutes actual or constructive knowledge sufficient to commence the running of prescription.”

The court found that “a plain reading of the LDEQ letters reveals that while it is arguable that the letters do not, as the district court concluded, specifically inform plaintiffs that the soil and groundwater on their property is contaminated, it is beyond peradventure that they provide sufficient information to excite attention and put plaintiffs on guard and call for inquiry.” In conclusion, the court held that the Hoggs had “acquired constructive knowledge of the damage to their … property sufficient to commence the running of prescription no later than 2002.” Thus, their suit filed in 2007, well beyond the one-year period, was barred by prescription.

The decision in this case reveals the serious approach that the Louisiana courts take in enforcing the prescriptive period. Plaintiffs must always keep in mind that state law limits the amount of time they can wait before filing a suit. Although, in the words of the Hogg court, the prescription period “should not be used to force a person who believes he may have been damaged in some way to rush to file suit,” it is clear that the courts are not sympathetic to a plaintiff who does not act even when given a reasonably good indication that he has suffered a loss due to someone else’s conduct. For this reason, anyone who feels he may have been injured should seek the advice of counsel immediately to ensure that an expired prescription period does not ruin his day in court.