Has Prescription Preempted Peremption?: A Plea To Bury the Ghosts of Survival Actions

Comment by Jeffrey J. Gelpi

Over the last decade, litigation involving personal injuries and property contamination resulting from exposure to naturally occurring radioactive materials (NORM) has been on the rise. Juries have awarded millions of dollars in compensatory damages for NORM contamination, and punitive damages have reached the billions. In many instances, the person injured by the exposure dies before filing suit; on the other hand, the defendants, typically oil companies or corporations, can live for centuries. For this reason, the victim’s relatives utilize “wrongful death” and “survival actions” to hold the tortfeasors liable for damages. The survival action permits recovery for the injuries suffered by the victim up to the time of death. Under Louisiana Civil Code article 2315.1, this right to recover damages for the injuries suffered by the victim survives for a period of one year from the death of the deceased. Recently, the Louisiana Supreme Court held that the one-year period for survival actions is a period of prescription. As a result, a victim’s relatives may bring a survival action long after the action’s one-year period of “survival.” This Comment discusses the history of time limitations in Louisiana and explains the test for identifying a peremptive period. It concludes with a determination that the period provided in article 2315.1 is one of peremption.


89 Tul. L. Rev. 253 (2014)