216 So. 3d 1095
La. Ct. App.2017Background
- On May 8, 2012, during a sudden severe thunderstorm, a large limb from an oak tree at 508 Charter Street fell onto a vehicle, crushing the roof and rendering passenger Cheryl Wells a quadriplegic.
- The tree stood on the property line: roots under the sidewalk/right-of-way controlled by the Town of Delhi and trunk/limbs on Chad and Kristi Morgan’s property.
- Wells sued under La. C.C. arts. 2315 and 2317.1 against Delhi and the Morgans, alleging the tree was defective (heart rot) and the defendants knew or should have known of the danger.
- Defendants moved for summary judgment, asserting lack of actual or constructive notice of the defect and raising an Act of God defense because the limb fell in a violent storm.
- The trial court granted summary judgment for defendants, finding the tree was defective but that defendants lacked requisite knowledge; it also ruled no spoliation despite removal of the tree after suit.
- On appeal the court found a genuine dispute of material fact (based largely on a forestry expert affidavit and admissions about lack of inspection) and reversed and remanded; it also held the trial court improperly disposed of the spoliation issue by summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Notice of defect (private/public) | Wells: defendants knew or should have known; they failed to inspect despite signs (fallen limbs, cracked sidewalk, thinning crown). | Defs: tree appeared alive (green leaves); they lacked actual or constructive notice and did not observe obvious rot. | Reversed summary judgment — expert affidavit and depositions create genuine factual dispute whether defendants knew or should have known. |
| Act of God defense | Wells: defense unavailable if defendants were negligent. | Defs: limb fell solely from severe thunderstorm; thus no liability. | Not decided on summary judgment — availability depends on whether defendants were free from negligence; factual question for trial. |
| Appropriateness of summary judgment | Wells: material factual disputes (knowledge, inspection, preventability) preclude summary judgment. | Defs: movants met burden; no evidence defendants knew or should have known. | Court applied de novo review and held summary judgment improper because movants did not negate factual disputes, particularly given expert affidavit and absence of counter-expert evidence. |
| Spoliation (removal of tree) | Wells: Delhi removed tree post-suit without promised notice — spoliation of evidence. | Defs: tree was removed two years after suit for safety; no agreement requiring notice and plaintiff had opportunity to inspect earlier. | Trial court erred to dispose of spoliation via summary judgment because spoliation was not raised in the motions; issue must be addressed separately. |
Key Cases Cited
- Bank of New York Mellon v. Smith, 180 So.3d 1238 (La. 2015) (summary judgment de novo standard and criteria)
- Catahoula Parish School Bd. v. Louisiana Machinery Rentals, LLC, 124 So.3d 1065 (La. 2013) (summary judgment burden and evidentiary showing)
- Hutchinson v. Knights of Columbus, Council No. 5717, 866 So.2d 228 (La. 2004) (credibility determinations inappropriate on summary judgment)
- Independent Fire Ins. Co. v. Sunbeam Corp., 755 So.2d 226 (La. 2000) (courts must assume affidavits credible on summary judgment)
- Jones v. Hawkins, 731 So.2d 216 (La. 1999) (elements for defective-thing claim against public entity include notice and corrective opportunity)
- Saden v. Kirby, 660 So.2d 423 (La. 1995) (Act of God defense unavailable where human fault is involved)