Predecessors to Exxon Mobil Corporation (“Exxon”) and 2H Incorporated (“2H”) gained leasing rights to use lands owned by Emile Levet (“Levet”) and Roger and Julie Moore (“the Moores”) for oil and gas exploration and production activities in the 1950s, 1960s, and 1970s. These lands are located in the Bayou Sale Oil & Gas Field in St. Mary Parish, Louisiana. Levet and the Moores filed suit against Exxon and 2H seeking damages for contamination of their land resulting from disposal of hazardous oilfield waste in unlined earthen pits near their property.
In the lawsuit, Levet and the Moores assert that Exxon and 2H are strictly liable under articles 2317 (pdf) and 2322 (pdf) because they had garde of the facilities and equipment that polluted their property. To prevail on a custodial liability claim under article 2317, a plaintiff must prove four elements: 1) the thing causing his damage was in the garde of the defendant; (2) the thing had a “defect” or a condition creating an unreasonable risk of harm; (3) the defective condition caused plaintiff’s injuries; and 4) the defendant knew or should have known of the defect that caused the plaintiff’s injuries. To prevail against the owner of a building under article 2322, a plaintiff must prove five elements: (1) ownership of the building; (2) the owner knew or, in the exercise of reasonable care, should have known of the ruin or defect; (3) the damage could have been prevented by the exercise of reasonable care; (4) the defendant failed to exercise such reasonable care; and (5) causation.
Thus, to state a claim under either article, a plaintiff must allege the existence of a vice or defect. The district court dismissed the premises liability claims because Levet and the Moores failed to allege any facts suggesting that any of Exxon’s or 2H’s facilities and/or equipment contained a vice or defect that created an unreasonable risk of harm to their properties. The failure to allege such facts was fatal to their premises liability claims.
Take-Away: Simply because a property has been damaged does not necessarily mean someone will be held accountable for the damage. A plaintiff’s claim for environmental damage will rise or fall on the theory of recovery actually alleged by a plaintiff, even when other non-asserted theories of recovery may be available to the plaintiff.