SEAN HERIGODT AND PROJECT NEMO, L3C VERSUS LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, DR. SHAWN D. WILSON IN HIS OFFICIAL CAPACITY AS LA DOTD SECRETARY, ANTOINE BANKS, AND TYISHA BANKS
NO. 2024-CA-0580
COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA
March 7, 2025
Judge Rosemary Ledet
Sean Herigodt
1416 St. Ferdinand Street
New Orleans, LA 70117
IN PROPER PERSON/APPELLANT
Elizabeth Baker Murrill, ATTORNEY GENERAL
Louisiana Department of Justice
Litigation Division
1885 North Third Street, 3rd Floor
Baton Rouge, LA 70802
E. Scott Hackenberg, SPECIAL ASSISTANT ATTORNEY GENERAL
HENCHY LAW FIRM, LLC
7737 Old Hammond Highway, Suite B-4
Baton Rouge, Louisiana 70809
COUNSEL FOR DEFENDANT/APPELLEE
REVERSED AND REMANDED
RML
RLB
KKH
This appeal arises from a petition seeking damages allegedly sustained as a result of lack of maintenance of the Robertson
DOTD filеd numerous exceptions contending that prevention and/or eradication of these issues were not the responsibility of DOTD. The trial court maintained DOTD‘s exception of no cause of action and dismissed Plaintiffs’ claims against DOTD.
Upon review, we find Plaintiffs’ petition included allegations sufficient for stating a claim for inverse condemnation. Thе trial court erred by failing to permit Plaintiffs to amend their petition pursuant to
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Mr. Herigodt resides approximately a half block from the Overpass. He contends that the encampment of unhoused people under and in the Overрass has caused numerous problems for himself and the neighborhood. Namely, he alleges that a junkyard business, as well as drug usage and dealing, has led to an increase in crime, including the murders of people known to Mr. Herigodt. Further, he maintains that his eldest daughter relocated to Texas to live with her grandparents because she became too afraid to live near the Overpass.
As a result of these alleged occurrences, Plaintiffs filed a Petition for Injunctive Relief, Damages, Fees, and Costs against Dr. Shawn D. Wilson, as the DOTD secretary; DOTD; Antoine Banks; and Tyisha Banks.2 Plaintiffs alleged these parties were responsible for creating the perfect environment for the encampment of unhoused people by failing to maintain their respective properties. Plaintiffs filed an Amended Complaint and Petition for Damages wherein they removed Dr. Wilson as a defendant.
DOTD filed an Answer, including numerous exceptions: lis pendens, vagueness, non-conformity, non-joinder of indispensable parties, lack of procedural capacity, no right of action, prescription, and no cause of action. The
trial court conducted a hearing,3 granted DOTD‘s exception of no cause of action, and dismissed Plaintiffs’ claims against DOTD with prejudice. The trial court also deemed DOTD‘s remaining exceptions as moot. Plaintiffs’ appeal followed.
“Appellate courts review rulings on exceptions of no cause of action using the de novo standard of review because exceptions of no cause of action present legal questions.” Green v. Garcia-Victor, 2022-0413, p. 5 (La. App. 4 Cir. 9/7/22), 348 So. 3d 799, 802.
NO CAUSE OF ACTION
“This Court has explained that ‘[a]n exception of no cause of action tests ‘the legal sufficiency of the petition by determining whether the law affords a remedy on the facts аlleged in the pleading.‘‘” Green, 2022-0413, p. 4, 348 So. 3d at 802 (quoting Henderson v. State Farm Mut. Auto. Ins. Co., 2021-0654, pp. 4-5 (La. App. 4 Cir. 12/17/21), 335 So. 3d 349, 353). “[C]ourts can only review the petition, amendments to the petition and any documents attached thereto in deciding an exception of no cause of action.” Green, 2022-0413, p. 4, 348 So. 3d at 802. “A court cannot consider assertions of fact referred to by the various counsel in their briefs that are not pled in the рetition.” 2400 Canal, LLC, 2012-0220, p. 7, 105 So. 3d at 825. “The grant of the exception of no cause of action is proper when, assuming all well pleaded factual allegations of the petition and any annexed documents are true, the plaintiff is not entitled to the relief he seeks as a matter of law; any doubt must be resolved in the plaintiffs’ favor.” Id.
Plaintiffs raise the following issues on appeal:4
- Whether the trial court erred by incorrectly applying the standard for an exception of no cause of action, thereby dismissing the plaintiff[s‘] claims without considering all possible legal theories under which relief could be granted.
- Whether the trial court erred by misapplying the need for a statutory private right of action, ignoring established Louisiana law that allows negligеnce claims based on common law duties without explicit statutory authorization.
- Whether the trial court erred by failing to acknowledge general negligence as the proper legal theory and by not applying the duty-risk analysis to the plaintiff[s‘] claims.
- Whether the trial court erred by failing to recognize that the plaintiff[s] adequately pleaded DOTD‘s breach of statutory duties, including allegations of actual and constructive notice of hazardous conditions.
- Whether the trial court erred by failing to address causality due to misapplication of legal standards, neglecting to determine whether the plaintiff[s] had adequately pleaded causation as an essential elemеnt of negligence.
- Whether the trial court erred by improperly limiting recoverable damages to physical injuries and property damage, excluding emotional distress and economic losses recoverable under Louisiana law.
- Whether the trial court committed procedural errors by dismissing the case
with prejudice without allowing the plaintiff[s] an opportunity to amend the petition, particularly given the plaintiff[s‘] pro se status, and by prematurely dismissing claims against defendants who had not yet appeared.
In sum, Plaintiffs contend the trial court erred by granting DOTD‘s exception of no cause of action and by failing to grant leave to amend the petition pursuant to
Pleadings
Plaintiffs alleged5:
9.
Plaintiffs allеge various negligences by Defendants, resulting in foreseeable and preventable damages. Negligences affecting Plaintiffs include, but are not limited to Defendants‘:
-Failure to inspect, maintain, and repair properties they own, control, or bear legal responsibility for, in the manner required by law. Alternatively—if inspections were perfоrmed—failure to correct problems described under the premise.
-Failure to prevent or correct unsafe and hazardous conditions on property they own, control, and/or bear legal responsibility for from affecting the public and Plaintiffs.
-Failure (in DOTD‘s case) to design and install critical safety features that could not be easily rеmoved and stolen, especially by scrappers, or to timely replace stolen safety features, up to a decade after their theft.
-Failure to exclude trespassers, prevent illegal structures, habitations, and occupancies from taking over property they own or control.
-Failure to prevent or correct blighting conditions affecting these properties.
-Failure to prevent or correct septic and unsanitary conditions on these properties.
-Failure to prevent an unlawful junkyard from flourishing on these properties.
-Contributing to the fostering of a welcoming environment for bold, brazen, and blatantly criminal
activity including murder and attempted murder on these properties.
These negligences will be more specifically pleaded elsewhere, and proven at trial.
14.
. . . Defendant DOTD bears responsibility for inspecting, maintaining, and repairing both “on-system” (state owned) and “off-system” (locally owned) bridges, including the ROBERTSON STREET (LA 39) OLIVER YARD OVERPASS elevating the 2700-3000 BLOCKS OF NORTH ROBERTSON STREET above and across the Norfolk Southern Oliver Yard [Oliver Yard] BETWEEN PORT STREET аnd FELICIANA STREET in NEW ORLEANS [the Bridge].
23.
Plaintiffs believe DOTD‘s failure to post adequate “No Trespassing” signage bearing a valid phone number left multiple city agencies and the complaining public clueless and about who owned or was responsible for the land under the bridge, rendering them largely helpless to redress their grievances.
24.
Plaintiffs believe DOTD‘s failure to maintain its fenсe under the bridge led directly to a junkyard and encampment flourishing on its land, which formed the cause-in-fact of Plaintiff‘s [sic] damages. 31.
Plaintiffs believe that DOTD‘s neglect to inspect, maintain, repair, or replace covers designed to exclude people from the interior of the Bridge‘s abutments prior to November 30th, 2021, led directly to human occupancy, which occasioned the homeless encampment, which formed the cause-in-fact of Plaintiffs’ damages.
43.
Plaintiffs believe that DOTD neglect of the Bridge in the above ways contributed to an atmosphere of blight, abandonment, and lawlessness that encouraged dumping, criminal activity, thefts, and murder, on Plaintiffs’ block, which form the cause-in-fact of Plaintiffs’ damages.
Further, Plaintiffs filed an Amended Complaint, and Petition for Damages, Fees, and Costs wherein they removed Dr. Wilson as a defendant and reiterated that:
12.
Upon information and belief, DOTD owns, controls, and/or bears various responsibilities for the Bridge and land under the
Bridge, and for an unimproved easement along the Bridge‘s south-facing side running between the Oliver Yard and Port St. [the Easement].
DOTD contends it “is not liable (nor statutorily authorized or funded) to evict homeless encampments or to provide security guards for its bridges or to otherwise protect the public from neighborhood property crimes caused by third parties.” Further, the “DOTD does not engage in ‘policing’ or the enforcement of Criminal or Municipal laws.”
However, Plaintiffs alleged, in their Amended Complaint:
24.
On December 1st, 2021, DOTD—finally—performed a stellar job evicting the occupants and remediating the encampment and junkyard from DOTD-controlled land [the December 1st eviction]. DOTD employees repaired the Bridge lighting system: occupants had tapped into the Bridge‘s lighting system, eventually causing much of the Bridge‘s lighting to fail. DOTD wоrkers were courteous, professional, efficient. Upon information and belief, DOTD hauled away twenty-one dump-truck-loads of debris from the Bridge‘s footprint and surrounds.
25.
Upon information and belief, an occupant was arrested after assaulting some of those participating in the December 1st eviction with an axe. He was quickly releаsed, immediately returning to the Bridge to rebuild.
26.
On December 4th, other occupants returned to DOTD-owned land, erecting structures similar to their former shelters. Hoarding under the bridge resumed the same day. On December 18th, occupants suspended a tarp-partition from Bridge girders, partly enclosing a workshop where Occupants could be seen switching parts among half-a-dozen-or-so bicycles. The Junkyard rapidly reappeared. Everything rapidly reappeared.
27.
The December 1st eviction failed to prevent the encampments’ immediate return. Plaintiffs noted few measures taken, at the time, to prevent this.
28.
Inverse Condemnation
“Under
Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. However, if the work he makes on his estate deprives his neighbor of enjoyment or causes damage to him, he
is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to еxercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. Nonetheless, the proprietor is answerable for damages without regard to his knowledge or his exercise of reasonable care, if the dаmage is caused by an ultrahazardous activity. An ultrahazardous activity as used in this Article is strictly limited to pile driving or blasting with explosives.
Jurisprudence has found that
The Louisiana Supreme Court noted that the 1996 amendments to
in order for a proprietor/landowner to be held responsible for damages allegedly caused by works or actions on his property, it must be shown that the рroprietor/landowner knew or should have known that the “works” on his
property would cause damage, and that the damage could have been prevented by the exercise of reasonable care.
Yokum v. 615 Bourbon St., L.L.C., 2007-1785, pp. 21-22 (La. 2/26/08), 977 So. 2d 859, 874. Work on property “includes not only constructions but also activities that may cause damage.” Id., 2007-1785, p. 22, 977 So. 2d at 875. Further, “inverse condemnation is available in all cases where there has been a taking or damaging of property where just compensation has not been paid, without regard to whether the property is corporeal or incorporeal.” Chambers, 595 So. 2d at 602.
The Louisiana Supreme Court established a three-prong test for determining whether a party is entitled to eminеnt domain compensation. First, the court must decide if a party‘s “legal right with respect to a thing or an object has been affected.” Chambers, 595 So. 2d at 603. Second, the court must find that the
property “has been taken or damaged, in a constitutional sense.” Id. Lastly, the Chambers Court required a finding that the taking was for a public purpose. Id. The Court also explained that “where there is no allegation or evidence of personal injury or physical damage to property, a finding of liability under Article 667 ‘require[s] proof of the presence of some type of excessive or abusive conduct.‘” Constance, 626 So. 2d at 1157 (quoting Chambers, 595 So. 2d at 605).
When reviewing the pleadings of a pro se litigant, we are required to liberally construe the pleadings. Lewis v. Dep‘t of Hum. Servs., 2017-0608, p. 5 (La. App. 4 Cir. 3/21/18), 242 So. 3d 675, 679. Arguably,7 Plaintiffs’ lengthy allegations outline some of the components of a claim for inverse condemnation. Moreover, any doubts must be resolved in Plaintiffs’ favor. 2400 Canal, LLC, 2012-0220, p. 7, 105 So. 3d at 825. Given these factors, we find the trial court erred by granting DOTD‘s exception of no cause of action and by failing to permit Plaintiffs an opportunity to amend their petition pursuant to
DECREE
For the above-mentioned reasons, we find the trial court erred by granting DOTD‘s exception of no cause of action and by failing to permit Plaintiffs an opportunity to amend their petition pursuant to
REVERSED AND REMANDED