Legal Blog

Louisiana Environmental Defense: Passive Breach of Contract Not Tortious

Written by Kristin Lausten

A recent case from the US Federal Court for the Eastern District of Louisiana presents a real-world example of the difference between a passive breach of contract, allowing only a breach of contract remedy, and an active breach of contract, which might allow both contract and tort claims. See La.Civ.Code Art. 2315. In general, here in New Orleans and elsewhere in Louisiana, if you have been damaged by some act or misconduct of another arising out of a contractual relationship, you can choose to sue for breach of contract and/or under theories of tort if the act or misconduct is ACTIVE breach of contract. The case of Vintage Assets, Inc. v. Tennessee Gas Pipeline Company, LLC, Civil Action No. 16-713 (US E.D. La. August 22, 2017) presents an interesting example in the environmental law context.

Louisiana Environmental Defense: Facts of Case

 In the Vintage Assets case, several landowners sued the Tennessee Gas Pipeline Company for various causes of action related to canals dredged and created between 1953 and 1970. The facts showed that, over the decades, the canals were not maintained, had been allowed to widen and nearly all have come to exceed the widths that were allowed by the eight right-of-way servitudes that were granted. In some places, the canals have eroded into “open water.” The landowners, the grandchildren of the owner who granted the servitudes, brought claims for trespass, breach of contract, and negligence under Louisiana law claiming, in general, that the failure to maintain the canals was in violation of the contracts and caused damage to the property.

With reference to the tort claims, on summary judgment motions, the court found that passive breach of contract, based on the failure to maintain the canals, did not rise to the level of tortious conduct under Louisiana law. As such, the court dismissed those claims.

Louisiana Environmental Defense: Legal Principles

 As noted, under Louisiana law, damage caused by acts or omissions arising out of a contractual relationship may give rise to contract damages and tort damages. See Mentz Constr. Services, Inc. v. Poche, 87 So.3d 273 (La. App. 4th Cir. 2012). Moreover, a plaintiff may assert both an action in contract and in tort if the facts and evidence show breach of a contractual duty and active negligence.

However, a passive breach of contract, a failure to fulfill an obligation due under a contract, will allow for only an action in contract. Hennessy v. South Central Bell Telephone Co., 382 So.2d 1044 (La. App. 2d Cir. 1980); Fie, LLC v. New Jax Condo Ass’n, No. 2016-CA-0843, Consolidated with No. 2017-CA-0423 (La. App. 4th Cir. 2018).

In the Vintage Assets case under discussion here, the landowners’ allegation amounted only to a passive breach of the eight servitude contracts. Nothing was alleged — and, indeed, there was no evidence — suggesting that Tennessee Gas Pipeline did anything. The only allegation was that Tennessee Gas Pipeline failed to maintain the canals and, in so failing to take action, the canals widened and caused damage to other parts of the landowners’ property. The Federal Court held such to be a mere passive breach of contract and that, pursuant to Louisiana law, such a passive breach did not also give rise to a tort claim. The court dismissed the negligence claims.

 Defending Louisiana Environmental Litigation: Contact New Orleans Attorney Kristin M. Lausten Today

Need assistance? Have questions? Contact Kristin M. Lausten. Our legal team defends toxic tort cases in both state and federal courts throughout Louisiana. We use state-of-the art technology and maintain relationships with a broad range of scientific and legal experts who are needed for defending toxic tort cases.

In addition, we provide legal consultation and planning so that you can decrease your risks of being sued for torts related to toxic substances.

The author may be contacted at:

Kristin M. Lausten

New Orleans, Louisiana
Telephone: 504.377.6585

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.