The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
LARRY W. ASHWORTH CASE NO. 2:20-CV-00053
VERSUS JUDGE JAMES D. CAIN, JR.
INTERNATIONAL PAPER CO., ET AL. MAGISTRATE JUDGE KAY
MEMORANDUM RULING
Before the court are a Motion to Dismiss [doc. 17] and Motion for a More Definite
Statement [id.] filed by defendant BNSF Railway Company, in response to the putative
class action brought by plaintiff Larry W. Ashworth. The motions are unopposed.
I.
BACKGROUND
This action arises from claims of land contamination by plaintiff Larry Ashworth,
who asserts that his property has been damaged by toxic waste from former creosote plants
in Beauregard Parish, Louisiana. Doc. 1. Specifically, Mr. Ashworth identifies the
International Paper Company (“IP”) site (Parcel A) and the American Creosote site (Parcel
B). Id. at ¶¶ 6–10. He asserts that creosoting operations ceased on Parcel A in 1989 and on
Parcel B in 1963. Id.
Mr. Ashworth asserts that he first became aware of the contamination less than one
year before filing this suit, when he witnessed “dark colored thick liquid coming from the
ground” after extracting a tree stump. Id. at ¶ 25. He brought claims for damages and
injunctive relief based on theories of negligence (Count I), strict liability (Count II), and
continuing nuisance and trespass (Count III). He asserts that he is also entitled to punitive
damages under former Louisiana Civil Code Article 2315.3 (Count IV).
As defendants Mr. Ashworth names various corporations as owners/operators of the
creosote plants, or successors to same. He also raises the same claims against BNSF
Railway Company, which allegedly owned a right-of-way and track “in and near” the two
parcels where creosote-treated poles were stored and/or loaded and transported on BNSF’s
railways for commercial sale. Id. at ¶ 10. Mr. Ashworth further asserts that BNSF and IP
discovered contamination in the soil and waters underlying the creosote plant sites when
they drilled monitoring wells near Parcels A and B. Id. at ¶¶ 10, 19.
BNSF now moves for dismissal of all claims raised against it, arguing that Mr.
Ashworth’s factual allegations fail to state a claim on which relief can be granted for each
of the above counts. Doc. 17, att. 1. It also asserts that Mr. Ashworth should be limited to
pre-purchase damages under the subsequent purchaser rule and moves for a more definite
statement as to certain allegations. No party has filed an opposition to this motion and the
time for doing so has passed. Accordingly, the motions are regarded as unopposed.
II.
LAW & APPLICATION
A. Rule 12(b)(6)
Rule 12(b)(6) allows for dismissal of a claim when a plaintiff “fail[s] to state a claim
upon which relief can be granted.” When reviewing such a motion, the court should focus
on the complaint and its attachments. Wilson v. Birnberg, 667 F.3d 591, 595 (5th Cir.
2012). The court can also consider matters of which it may take judicial notice, including
matters of public record. Hall v. Hodgkins, 305 Fed. App’x 224, 227 (5th Cir. 2008)
(unpublished). Such motions are reviewed with the court “accepting all well-pleaded facts
as true and viewing those facts in the light most favorable to the plaintiff.” Bustos v. Martini
Club, Inc., 599 F.3d 458, 461 (5th Cir. 2010). However, “the plaintiff must plead enough
facts ‘to state a claim to relief that is plausible on its face.’” In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). Accordingly, the court’s task is not to evaluate the plaintiff’s likelihood
of success but instead to determine whether the claim is both legally cognizable and
plausible. Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th
Cir. 2010).
B. Application
1. Count I – Negligence
Under the negligence count, Mr. Ashworth alleges that defendants (including
BNSF) are liable for a continuing tort based on their “knowing, and calculated failure to
remediate and remove” contaminated soils and water beneath the land they controlled. Doc.
1, ¶ 33. He further asserts several specific breaches, including a failure to:
(1) properly implement safe practices to avoid the discharge, leakage, and seepage
of pollution on and then from the property they used;
(2) properly direct and supervise the training of employees and contractors in safe
and protective practices which would have protected the environment and
prevented pollution;
(3) provide timely and adequate warning to neighboring and community
landowners on whose property wood treating wastes and chemicals have
trespassed as to the scope and extent of the hazardous and toxic chemical
releases from [the defendants’] operations;
(4) prevent the continued offsite migration of contaminants resulting from the
discharge of wood treating wastes and chemicals into the environment;
(5) remediate contaminated lands and facilities, i.e. including but not limited to the
surface impoundment units and solid waste management units, in such a manner
as to eliminate such lands as a continued source of subsurface soil and ground
water pollution to on site, adjacent, and off-site properties; and
(6) properly evaluate and assess the true scope and extent of contamination into the
subsurface environment in order to be able to design and implement an effective
and reasonably prudent remedial system.
Doc. 1, ¶ 36.
The elements of a negligence claim are well established under Louisiana law. “A
plaintiff must establish that (1) the defendant owed the plaintiff a duty of care; (2) the
defendant breached the duty; (3) the plaintiff suffered damages; and (4) the breach of the
duty proximately caused the damages.” Gulf Prod. Co., Inc. v. Hoover Oilfield Supply,
Inc., 672 F.Supp.2d 752, 756 (E.D. La. 2009) (quoting Lloyd’s Leasing Ltd. v. Conoco,
868 F.2d 1447, 1449 (5th Cir. 1989)).
BNSF argues that plaintiff’s allegations fail to state a negligence claim under the
above standards, because he has not specified how BNSF was negligent in its handling of
the poles or articulated a duty breached by BNSF. BNSF further asserts that the complaint
lacks sufficient detail on a plausible theory of causation between BNSF’s activities and
plaintiff’s property damage. Doc. 17, att. 1, pp. 7–9.
The court disagrees. Plaintiff has alleged that BNSF had some responsibility for
transporting and storing poles treated with toxic chemicals, on or near parcels where sub-
surface contamination was later discovered. He has also alleged that BNSF, in particular,
drilled monitoring wells and became aware of subsurface contamination at those sites.
Several of the above allegations appear more suited to the creosote plant defendants, but
there is enough articulated with respect to BNSF’s possible failure of due care to satisfy
plaintiff’s initial burden and invite discovery. Accordingly, the motion to dismiss is denied
as to the negligence claim.
2. Count II – Strict Liability
Mr. Ashworth has also raised strict liability claims against BNSF under Louisiana
Civil Code articles 667, 2317 and 2317.1, and 2322. To this end he has alleged that BNSF
had “custody, control, and garde of damaging chemicals associated with the creosoting
process” and is strictly liable for the unreasonably dangerous condition caused by the
migration of these chemicals. Doc. 1, ¶ 39. BNSF maintains that the cause of action fails
under all of these provisions.
a. Article 667
Until tort reform amendments enacted in 1996, Article 667 imposed strict liability
for all activities deemed “ultrahazardous.”1 E.g., Brown v. Olin Chem. Corp., 231 F.3d
197, 200 (5th Cir. 2000). An activity was ultrahazardous under Article 667 if it satisfied
the following criteria: (1) it related to land or some other immovable; (2) it caused the
injury, with the defendant engaged directly in the activity; and (3) it did not require
substandard conduct to cause injury. Bartlett v. Browning-Ferris Indus., Chem. Servs., Inc.,
683 So.2d 1319, 1321–22 (La. Ct. App. 3d Cir. 1996). The most crucial issue is whether
the activity can be safely done with the exercise of reasonable care. If such care will not
sufficiently mitigate the risk of harm, then the activity is by its nature ultrahazardous. Id.
at 1322.
There is nothing in the complaint to support, much less allege, that the storage and
treatment of the creosote-treated poles would be dangerous even with the exercise of
reasonable care. Accordingly, plaintiff has shown no basis for deeming the activities
ultrahazardous.2 These claims against BNSF must therefore be dismissed.
b. Articles 2317 and 2317.1
Mr. Ashworth also brings claims under Articles 2317 and 2317.1. Prior to the 1996
amendments, these statutes allowed for a defendant’s strict liability for dangerously
1 The amended article now limits strict liability to pile-driving and blasting with explosives. See La. Civ. Code art.
667. Accordingly, liability for any other activity requires a showing of negligence.
2 Additionally, as BNSF notes, under federal law it may not refuse a reasonable request for transportation – including
transportation of hazardous materials. 49 U.S.C. § 11101(a); Town of E. Troy v. Soo Line R.R. Co., 409 F. Supp. 326,
330 (D. Wis. 1976). Accordingly, the common carrier exception likely shields it from liability though it has not been
adopted by Louisiana courts. See Restatement (Second) of Torts § 521 (1977); see, e.g., Ind. Harbor Belt R.R. Co. v.
Am. Cyanamid Co., 916 F.2d 1174, 1180 (7th Cir. 1990); Actiesselskabet Ingrid v. Central R. Co. of New Jersey, 216
F. 72 (2d Cir. 1914).
defective things in his custody. To prevail on such a claim, a plaintiff must show that (1)
the defendant had custody of a thing, (2) the thing had a vice or defect, (3) the vice or defect
created an unreasonable risk of harm, (4) the defendant failed to make the thing safe or
take adequate steps to prevent damage, and (5) that the vice or defect caused the damage.
Friou v. Phillips Petrol. Co., 948 F.2d 972 (5th Cir. 1991) (citing Kent v. Gulf State Utils.
Co., 418 So.2d 493, 496–98 (La. 1982)). For purposes of this statute, “vice” is synonymous
with “defect” and describes “a physical imperfection, deformity or taint.” Myers v. Dronet,
801 So.2d 1097, 1107 (La. Ct. App. 3d Cir. 2001). Mr. Ashworth has not described any
vice or defect with respect to the creosote-treated poles in BNSF’s custody. Accordingly,
he also fails to state a strict liability claim under these articles.
c. Article 2322
Finally, before 1996 Article 2322 allowed strict liability claims for damages caused
by the ruin of a building owned by the defendant. Jackson v. Gardiner, 785 So.2d 981,
984–85 (La. Ct. App. 2d Cir. 2001). “Ruin,” as BNSF notes, is a term of art that reflects
“the fall or collapse of a substantial component of the building.” Calloway v. CNG
Producing Co., 1999 WL 447451, at *5 (E.D. La. Jun. 29, 1999) (citing Mott v. ODECO,
577 F.2d 273 (5th Cir. 1978)). Mr. Ashworth describes no particular building owned by
BNSF that contributed to the damages alleged here, nor does he allege the ruin of any of
BNSF’s facilities. Accordingly, he also fails to state a claim under Article 2322.
3. Count III – Continuing Nuisance and Trespass
BNSF argues that the claims against it for continuing nuisance and trespass fail
because plaintiff alleges no ongoing conduct or presence of any neighbor. As BNSF notes,
the essential inquiry in determining the existence of a continuing trespass claim is whether
the defendant “perpetuates the injury through overt, persistent, and ongoing acts” giving
rise to successive damages. Hogg v. Chevron USA, 45 So.3d 991, 1003 (La. 2020). Where,
on the other hand, the trespass permanently changes the physical condition of the land, no
additional cause of action accrues merely because the damage continues to exist or even
worsens. Id. Here plaintiff has alleged that creosoting operations ceased at Parcel A in 1989
and at Parcel B in 1963. Doc. 1, ¶¶ 7–11. He does not allege any ongoing conduct by BNSF
after that period. Accordingly, plaintiff fails to state a claim of continuing trespass.
The continuing nuisance claim arises under Louisiana Civil Code Article 667.
Articles 667 through 669 set “standards of responsibility for a landowner to his
neighbors[.]” Inabnet v. Exxon Corp., 642 So.2d 1243, 1251 (La. 1994). Accordingly, it
only creates obligations between owners of properties that are adjacent or lay physically
close to one another. Barasich v. Columbia Gulf Transmission Co., 467 F.Supp.2d 676,
690 (E.D. La. Sep. 28, 2006); TS&C Investments, LLC v. Beusa Energy, Inc., 637
F.Supp.2d 370, 383 (W.D. La. 2009). On this principle, the Eastern District of Louisiana
rejected plaintiffs’ nuisance claims relating to work done on the Mississippi River Gulf
Outlet. In re Katrina Canal Breaches Consol. Litig., 647 F.Supp.2d 644 (E.D. La. 2009).
There it noted that the closest plaintiff lived three miles from the levee and the canal,
precluding a finding that it was a neighbor within the meaning of the statute. Id. at 734.
Mr. Ashworth asserts that his property is approximately 5.1 miles away from Parcel
A. Doc. 1, ¶ 20; see doc. 2. He does not describe the property over which BNSF was owner
or proprietor. The exhibit attached identifies only Parcels A and B and the Ashworth
property. Doc. 2. The court cannot gauge the scale or locate BNSF-owned or -controlled
property on this map. Mr. Ashworth, however, has not alleged that BNSF’s property is
adjacent to his or otherwise any closer. Accordingly, he fails to establish that he is a
neighbor within the meaning of the nuisance statute and this claim fails as well.
4. Count IV – Punitive Damages
Finally, Mr. Ashworth seeks punitive damages from BNSF under Louisiana Civil
Code Article 2315.3 (repealed) with the following:
Further, BNSF’s predecessors stored, transported, handled, or
otherwise managed toxic and hazardous wood treating wastes long before
1984 and the pollution began migrating off of BNSF controlled property and
caused extensive damage to Plaintiffs’ class members’ properties between
the years of 1984 and 1996, as well as to the present. BNSF’s deficient
conduct in the storing, handling and transport of the toxic materials as
described above was in wanton and reckless disregard for public safety for
all of the reasons stated above in the preceding paragraphs.
Doc. 1, ¶ 42. BNSF argues that there is no basis for such an award, because Mr. Ashworth
fails to adequately allege conduct occurring while Article 2315.3 was in effect.
Punitive damages are only allowed under Louisiana law where authorized by
statute. E.g., Mosing v. Domas, 830 So.2d 967, 973 (La. 2002). Article 2315.3 was in effect
from 1984 until 1996 and allowed a plaintiff to recover exemplary damages if he could
prove injuries “caused by the defendant’s wanton and reckless disregard for public safety
in the storage, handling, or transportation of hazardous or toxic substances.” Addison v.
Illinois Central R. Co., 967 F.Supp. 173, 180 (E.D. La. 1997). The article only applies to
conduct that occurred while it was in effect. Anderson v. Avondale Indus. Inc., 798 So.2d
93, 97–101 (La. 2001). The relevant inquiry, then, is when that conduct occurred and not
when the cause of action arose. See id.
Under the punitive damages claim plaintiff has only alleged that BNSF engaged in
the damage-causing activities before 1984 and that these activities then caused the creosote
to migrate to his property while Article 2315.3 was in effect. Elsewhere, however, plaintiff
alleged that BNSF’s conduct lasted “from the inception of the creosoting
operations/business to its cessation on or about 1989[.]” Doc. 1, ¶ 10. At this stage the court
does not require any more specificity as to dates and plaintiff has adequately alleged that
some conduct giving rise to punitive damages might have occurred within the time period
covered by Article 2315.3. Accordingly, the motion is denied as to this claim.
5. Subsequent Purchaser Limitation
Next, BNSF argues that plaintiff’s claims must be dismissed to the extent he seeks
damages incurred before his purchase of the property. To this end BNSF attaches a cash
warranty deed. See doc. 17, att. 2. From this deed it appears that Mr. Ashworth purchased
the property in 1987 and that the prior landowner did not assign any litigation rights. Id.
BNSF’s attachment is outside the scope of this motion. Moreover, any question of time
limitations on damages is premature at this point and better suited to summary judgment.
Accordingly, the motion is denied in this respect.
6. Motion for More Definite Statement
Finally, BNSF argues that it is entitled to a more definite statement under Rule 12(e)
on the timing and alleged manner of negligence. As shown above, however, Mr. Ashworth
has alleged BNSF’s involvement in the storage and transportation of a specific item from
a specific site within an approximate date range. While the time range is broad, the
geographic particularity and type of damage alleged gives BNSF adequate notice to begin
investigating the claims against it. Accordingly, this motion is also denied.
Il.
CONCLUSION
The Motion to Dismiss [doc. 17] will be granted in part and denied in part as
described above. The Motion for a More Definite Statement [id.] will be denied.
THUS DONE AND SIGNED in Chambers on this 15th day of May, 2020.
UNITED STATES DISTRICT JUDGE
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