Defending Louisiana Environmental Litigation: What is the Prescription Period?
Written by Kristin Lausten
In New Orleans and elsewhere in Louisiana, any claim for environmental contamination or injury to real estate — immovable property — must be brought within the one-year liberative prescription period of LSA Civ. Code, Art. 3493. Article 3493 states that the one-year period “commences to run from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage.” This article discusses what is “constructive knowledge of damage.”
Defending Louisiana Environmental Litigation: What is Constructive Knowledge?
Our Supreme Court provided guidance on how to apply LSA Civ. Code, Art. 3493 in the case of Hogg v. Chevron USA, Inc., 2009-CC-2632, 2009-CC-2635, 45 So. 3d 991 (La. Supreme Court 2010). In Hogg, the court defined “constructive knowledge” as “whatever notice is enough to excite attention and put the injured party on guard or call for inquiry.” In a slightly different phrasing, “constructive knowledge” is “such information or knowledge as ought to reasonably put the injured party on inquiry” — that is, knowledge that should start a person asking questions, doing due diligence, and actively seeking to discover whether he or she has suffered some injury, damage, or slight.
According to the court, a party does not need to know everything at that moment; rather, constructive knowledge is considered notice of everything to which a reasonable inquiry might lead.
The determination of when a party has constructive knowledge is a fact-based determination that looks at:
- What information was obtained?
- When was the information obtained?
- What conclusions were properly to be drawn from the information possessed?
- What actions — or inactions — were taken based on the information possessed?
- Were the actions — or inactions — reasonable?
- What other actions reasonably could have been undertaken?
- Was information publicly available?
- Was information concealed?
In the Hogg case, the plaintiffs sued for damages to their property resulting from the migration of gasoline from underground storage tanks that were located on neighboring property. The Louisiana Department of Environmental Quality (“LDEQ”) discovered the leaks and the storage tanks were replaced in 1997. The LDEQ sent letters to the adjoining property owners in 2001 and then a second letter was sent in 2002. The plaintiffs did not file suit until 2007. The Supreme Court held that the plaintiff had to have had constructive notice by at least the second letter sent in 2002. The case was properly dismissed.
Contact an Experienced Louisiana Toxic Tort and Environmental Defense Lawyer
Need assistance? Have questions? Contact Kristin M. Lausten. Our legal team defends toxic tort and environmental 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 environmental contamination 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
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.