Energy Law

Louisiana Third Circuit Court of Appeal Reverses District Court's Dismissal in Arsenic Land Damage Case

By Kelly Becker

By Stephen Wiegand

In David v. Mosaic Global Operations, (La. App. 3 Cir. 10/27/10), the Louisiana Third Circuit Court of Appeal reversed the dismissal of land contamination claims brought against the manufacturer of a tick-killing agent used on cattle. The plaintiffs were landowners who alleged that the product had contaminated their land and water with arsenic. The trial court dismissed the plaintiffs' claims on various grounds. Notably, the trial court determined that because the utility of the cattle dip outweighed the danger-in-fact, the cattle dip was not 'dangerous per se' under Louisiana products liability law. Additionally, the trial court concluded that the plaintiffs had no standing to bring the action because they did not own the property when the original contamination occurred and because none of the plaintiffs acquired the right to pursue recovery for such damage from the previous landowners.

On appeal, the court reversed the dismissal and remanded the case to the trial court. The appellate court found that genuine issues of fact existed with regard to whether the cattle dip was dangerous per se. For example, there were no instructions for safe disposal of the dip and no instructions on how to decontaminate land saturated by the product. Further, it was improper for the trial court to determine that because the cattle dip effectively eradicated ticks that the utility necessarily outweighed the danger-in-fact. The trial court failed to undertaken a full and proper analysis of the risk utility test for determining whether the product was dangerous per se.

Most notably, the appellate court found that the plaintiffs had standing to assert their claims under Louisiana products liability law based on their allegations that they had been injured as a result of exposure to high levels of arsenic in the groundwater. In reaching this conclusion, the court found that the defendant's reliance on LeJeune Bros., Inc. v. Goodrich Petroleum Co., LLC, (La. App. 3 Cir. 11/28/07), 981 So.2d 23, for the proposition that the plaintiffs lacked standing was misplaced. The court reasoned that the Lejeune holding was limited to a specific set of circumstance: the potential acquisition of a cause of action under a pre-existing mineral lease. Because the David plaintiffs' claims, however, were not based on property law but instead on Louisiana products liability law, the Lejeune reasoning was not applicable. Accordingly, the fact that the plaintiffs did not own the property when the contamination occurred and that none of the plaintiffs acquired the right to pursue recovery from the previous landowners did not necessarily preclude their claims.

The full text of the opinion is available here: www.la3circuit.org/opinions/2010/10/1027/09-1237opi.pdf
 

Full post as published by The Energy Law Blog on November 12, 2010 (boomark / email).