Contributed by Melody Akhavan
A Louisiana appeals court recently issued an important opinion about the continuing tort doctrine in toxic tort actions, finding that seepage from a single chemical spill doesn’t constitute a continuing tort. Some background: In April 1983, a chemical spill occurred in Lake Charles, Louisiana that resulted in the release of 11,000 gallons of perchloroethylene (PCE). A few months later, the responsible parties cleaned up the spill and eliminated all PCE from the ground surface level. After July 1983, about 1,000 gallons of PCE remained underground. Cleaning and remediation efforts continued through groundwater monitoring, treatment and extraction of impacted groundwater, maintenance, and installation of monitored wells.
In the spill’s wake, several lawsuits were filed against the responsible parties. Among these suits were five individual toxic tort actions filed in 2003, which were later consolidated. Defendants filed a “peremptory exception of prescription,” which was denied by the trial court in 2010 on the basis that Plaintiffs could continue with their action through the continuing tort doctrine. Among other procedural developments, Defendants filed a partial motion for summary judgment a year ago, seeking dismissal of two groups of Plaintiffs based in part on limitations arguments. Last June, the trial court granted Defendants’ motion. Plaintiffs then appealed the grant of partial summary judgment, based in part on limitations issues. The Louisiana Third Circuit Court of Appeal issued its decision on these arguments and others in Ned v. Union Pacific Corp., 2015 WL 1651052, Nos. 14-1310, 14-1311, 14-1312, 14-1313, 14-1314 (La. App. April 15, 2015).
The most significant issue addressed by the court was the proper interpretation of the continuing tort doctrine in a chemical spill case. Here, Plaintiffs’ claims carried a one-year limitations period. But Plaintiffs contended that because of the continuing tort doctrine, their claims weren’t time-barred despite having actual and/or constructive knowledge of the cost of their symptoms more than a year prior to filing suit. The court disagreed, citing recent Louisiana case law. The court explained that several recent Louisiana Supreme Court cases with similar facts have held the continuing tort theory inapplicable.
Stated simply, “a continuing tort is occasioned by unlawful acts, not the continuation of the ill effects of an original, wrongful act.” In this case, the court determined that the alleged injury-causing conduct was the one-time release of PCE in April 1983, and not the continued migration of PCE throughout the groundwater. In other words, the court focused on the alleged actions of the tortfeasors and not the alleged effects of their conduct. So in Louisiana, the alleged ongoing deterioration of a plaintiff’s property due to migration of chemicals in groundwater does not trigger the continuing tort doctrine, as long as the defendant has stopped the unlawful release of chemicals.
This is significant. A court’s determination of what constitutes a continuing tort, especially in toxic spill cases, can be the difference between no liability and expensive protracted litigation concerning alleged damages from conduct that ceased long ago. In considering the application of the continuing tort doctrine in a toxic tort case, a court must balance the interests of plaintiffs who wish to recover for damages arising from wrongful acts against the interests of the legal system and defendants who need certainty and finality, especially where there has been no ongoing wrongful conduct by the defendants. The law rightly recognizes temporal limits, and in this case, such limits have been enforced in Louisiana.