Opinion
Civil Action No. 05-4198, SECTION "B" (1).
February 14, 2006
ORDER AND REASONS
For the following reasons, Defendant Sundown Energy, L.P.'s Motion to Dismiss (Rec. Doc. No. 15) is DENIED.
LAW AND ANALYSIS
Plaintiffs pled liability under Louisiana Civil Code article 2317. (Rec. Doc. No. 1 at ¶ 6). The law of strict liability was amended in 1996 to add the requirement of knowledge on the part of the owner or custodian of a "thing." The new law is embodied in Louisiana Civil Code article 2317.1. Now, to prevail on such a claim, an injured plaintiff must prove that (1) the object was in the defendant's custody; (2) the thing contained a vice or defect which presented an unreasonable risk of harm to others; (3) the defective condition caused the damage; and (4)defendant knew or should have known of the defect. Cormier v. Dolgencorp, Inc., 136 Fed. Appx. 627, 627-28 (5th Cir. 2005) (citing La. Civ. Code arts. 2317; 2317.1); see also Johnson v. Entergy Corp., et al., 827 So. 2d 1234 (La.App. 2 Cir. 9/20/02). The element of prior knowledge or constructive knowledge by the defendant is a requirement of either an action in negligence or in strict liability. Carr v. Wal-Mart Stores, Inc., (La.App. 5 10/31/00) 772 So. 2d 865, 867. See Johnson v. Entergy Corp., (La.App. 2 Cir. 09/20/02); 827 So. 2d 1234, 1238 (explaining "[t]he concept of constructive knowledge imposes a reasonable duty to discover apparent defects in things under the defendant's garde").Sundown does not dispute that it owned and therefore had custody of the petrochemicals and petroleum storage facilities near Port Sulpher, Louisiana. (Rec. Doc. No. 15 at 6; Rec. Doc. No. 17 at 6). Defendants submit that the elements of defect and causation have not been adequately pled.
Plaintiffs have adequately pled a claim upon which relief may be granted. Plaintiffs complaint complies with the pleading requirements of Rule 8. Federal Rule of Civil Procedure Rule 8(a) requires that a claim for relief contain "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ."
It is plausible, construing the facts in the light most favorable to Plaintiffs, that a claim under article 2317 can be sustained. See Stewart-Sterling One v. Tricon Global Rest., Inc., No. 00-0477, 2001 U.S. Dist. LEXIS 1425 (E.D.La. January 31, 2001) (sustaining article 2317 and 2322 strict liability claims in motion to dismiss where plaintiff does not specify what defects in building may have caused contamination).