311 So.3d 521
La. Ct. App.2020Background
- Harkins (owner/operator of a florist at 1601 Magazine St.) alleged that construction of The Julian condominiums at 1581 Magazine St. (across Richard St.) during 2016–Jan. 2017 impeded customer access and caused economic (lost-profits) and property-damage claims.
- Defendants on appeal ("Movers") were Winingder (former owner of the Julian parcel) and Felicity (developer/property manager); the appeal challenges only dismissal of Harkins’ economic-loss claim against them.
- Movers moved for partial summary judgment seeking dismissal of economic damages, arguing (1) typical construction inconveniences are noncompensable under La. C.C. arts. 667–668 (vicinage) and (2) Harkins cannot prove lost profits with reasonable certainty.
- Harkins opposed with photographs and affidavit evidence showing fencing, equipment, trailers, and occasional street/sidewalk closures adjacent to the florist; he argued these facts raise triable issues whether the conduct was more than a mere inconvenience and whether Felicity may be liable in negligence.
- The trial court granted partial summary judgment, finding the construction-related impediments were a noncompensable ‘‘mere inconvenience,’’ certified that ruling as final under La. C.C.P. art. 1915(B)(1), and Harkins appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether construction-related impediments are "real damage" under vicinage (La. C.C. arts. 667–668) | Harkins: fencing/equipment/closures substantially hindered access and caused lost sales, raising factual dispute whether impact was more than a mere inconvenience | Movers: the alleged impediments are typical construction inconveniences and thus noncompensable under articles 667–668 | Held: impediments here constitute a mere inconvenience as a matter of law; no vicinage recovery for economic loss |
| Whether Harkins proved lost profits with reasonable certainty | Harkins: lost customers and sales during construction; photographic evidence supports claim | Movers: Harkins cannot prove economic loss with reasonable certainty; loss is speculative and typical of construction disruptions | Held: summary judgment appropriate—economic-loss claim fails (no compensable basis under vicinage and insufficient proof) |
| Whether owner (Winingder) may be liable in tort (La. C.C. art. 2315) for the same conduct | Harkins: owner can be liable in negligence separate from vicinage law | Movers: lawful conduct causing only a mere inconvenience does not breach a tort duty; vicinage analysis is dispositive | Held: where conduct is legally a mere inconvenience under vicinage, there is no separate negligence duty breached—tort claim fails |
| Whether non-owner property manager (Felicity) can be liable in negligence for the same conduct | Harkins: Felicity (manager/developer) allowed/failed to prevent blocking/closures and should be liable in negligence | Movers: same facts would be insufficient against owner; no distinct legal duty alleged against non-owner manager | Held: no separate duty shown; summary judgment for Felicity affirmed |
Key Cases Cited
- Constance v. State Through Dep't of Transp. & Dev. Office of Highways, 626 So.2d 1151 (La. 1993) (construction barricades and impediments that leave access possible are typically mere inconveniences and nondispositive for compensation)
- State Through Dep't of Transp. & Dev. v. Chambers Inv. Co., 595 So.2d 598 (La. 1992) (articulates distinction between compensable "damage" and tolerable "inconvenience" under vicinage articles)
- Lodestro Co. v. City of Shreveport, 768 So.2d 724 (La. App. 2 Cir. 2000) (construction blocking drive-up access is an inconvenience, not actionable vicinage damage)
- Hogg v. Chevron USA, Inc., 45 So.3d 991 (La. 2010) (reasonableness questions may be resolved on summary judgment when facts are undisputed)
- Van Cleave v. Temple, 278 So.3d 1005 (La. App. 1 Cir. 2019) (summarizes standard for granting summary judgment when mover entitled as a matter of law)