PER CURIAM.[fn1] [fn1] Judge Henry L. Yelverton, Court of Appeal, Third Circuit, sitting by assignment in place of Associate Justice James L. Dennis. Lemmon, J., (recused) not on panel. Rule IV, § 3.
After a collision between John S. Chustz, Sr.'s pickup truck and J. B. Hunt Transport, Inc.'s eighteen wheeler truck, Chustz died. The truck was hauling cases of petroleum lubricating oil, and Chustz's survivors are seeking exemplary damages under LSA-C.C. art. 2315.3. It is alleged that the truck was transporting a toxic or hazardous substance with wanton or reckless disregard for public safety. The trial court denied Hunt's motion for partial summary judgment on the exemplary damage claims, and the court of appeal denied review.
Under Louisiana law, statutes which impose a penalty, such as punitive or exemplary damages, are strictly construed. International Harvester Credit v. Seale, 518 So.2d 1039 (La. 1988). Although this statute does not define hazardous or toxic substances, the words must be given their generally accepted meaning. LSA-C.C. art. 11. Hazardous substances are those that present substantial danger to public health or the environment. A toxic substance is a substance poisonous to living organisms. Thus, the terms "hazardous" and "toxic" refer to substances which cause injury or death to human beings and/or create an environmental hazard. Applying strict construction, under the facts here cases of petroleum lubricating oil are not hazardous or toxic. Plaintiffs are not entitled to pursue exemplary damages.
For the foregoing reasons, the judgment of the trial court is reversed and partial summary judgment is rendered dismissing plaintiffs' claims for exemplary damages.
REVERSED AND RENDERED.
LEMMON, J., — recused; not on panel. Rule IV, Part 2, § 3.
KIMBALL, J., — concurs in result.
JOHNSON, J., — concurs in result.
YELVERTON, J., — dissents and assigns reasons.
YELVERTON, JUSTICE PRO TEMPORE, dissenting.
Electricity is the only thing excluded, as a matter of law, from the term "hazardous or toxic substances" as used in Article 2315.3. Electricity was excluded by Act 302 of 1990. As originally introduced, Senate Bill No. 676 (which became Act 302) was to amend and reenact the article to define the term and exclude many things, including oil, from what might be hazardous or toxic. Committee action in both chambers rejected that definition and left excluded, as a matter of law, only electricity.
Most people think of oil as hazardous and toxic. The denial of summary judgment in the trial court and court of appeal was supported by affidavits and depositions of experts. The summary judgment evidence raised a genuine issue of material fact. Whether petroleum lubricating oil is hazardous or toxic in this case should be decided by the trier of fact.