Summary of a Recent
Judicial Development in
Environmental Law

General Duty of Care Owed to Public Is Subject
to One-Year Prescriptive Period

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Roche v. Jefferson Davis Electric Cooperative, 922 So.2d 759 (La. Ct. App. 2006), the Louisiana Third Circuit Court of Appeals affirmed the decision of the district court, holding that the plaintiff's action was barred. A landowner alleged that the utility company damaged his oak, pecan, and crepe myrtle trees by spraying herbicide along its power lines. The court held that the case sounded in tort rather than contract; therefore, it was barred by Louisiana's one-year prescriptive period for tort actions.

Background

In July 2003, Jeff Davis Electric Cooperative, Inc. sprayed herbicide along power lines located along a strip of the plaintiff's land. Id. at 760. On October 25, 2004, the plaintiff sued the cooperative alleging that the herbicide migrated beyond the boundaries of the cooperative's servitude and damaged the plaintiff's oak, pecan, and crepe myrtle trees. Id. However, the plaintiff originally complained about the property damages and met with a representative of the cooperative at the site of the alleged damage on August 14, 2003, more than one year prior to bringing suit. Id. The cooperative responded to the plaintiff's suit by filing a peremptory exception of prescription, claiming that the action had prescribed because the plaintiff waited more than one year to file suit after the damages occurred or became known to him. Id. The trial court sustained the cooperative's exception, finding that the cause of action was a tort action with a one-year prescriptive period. Id. The plaintiff appealed. Id.

Arguments

On appeal, the plaintiff argued that his damages were caused by the cooperative's breach of a special duty owed to the plaintiff as owner of a servient estate. Id. at 761. His petition alleged that the cooperative "went beyond the limits of its servitude and exceeded its rights and breached its quasi contractual rights, when . . . it allowed herbicide to migrate onto [the plaintiff's] oak, pecan and crepe myrtle trees, thereby causing substantial damage to same." Id.

The cooperative argued that its duty to the plaintiff was the same duty "owed to all property owners in the vicinity of its spraying of the herbicide; thus, this duty was general," and subject to a one-year prescriptive period. Id. at 763.

Analysis and Holdings

In Louisiana, tort actions are subject to a one-year prescriptive period, while actions for breach of a contract are subject to ten-year prescription. Id. at 761. The distinction between contract damages and tort damages is that "the former flows from the breach of a special obligation contractually assumed by the obligor, whereas the latter flows from the violation of a general duty owed to all persons." Id. at 762.

In the instant case, the court held that "the duty to avoid damage to the trees and shrubs of [the cooperative's] customers, or strangers, has no special aspect to it and is unrelated to any implied obligation under any servitude or other contract." Id. at 763. Continuing this reasoning, the court stated:

While the duty not to neglect his servitude can be interpreted as being a specific duty owed to [the plaintiff], thereby sounding in contract, we do not find that the duty not to negligently damage [the plaintiff's] trees, while in the process of maintaining the servitude over his land, is a specific duty sounding in contract.
Id.

Therefore, the court held that the plaintiff's claims sounded in tort and were barred by Louisiana's one-year prescriptive period. Id.

The case was decided on February 1, 2006.