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Lowe v. Noble, L.L.C.

Court of Appeals of Louisiana, First Circuit

October 17, 2017

SCOTT LOWE AND BETH LOWE
v.
NOBLE, L.L.C., ET AL.

         Appealed from the Twentieth Judicial District Court In and for the Parish of West Feliciana State of Louisiana Suit Number 21767 Honorable Kathryn J. Jones, Presiding

          Steve Joffrion Garrett Joffrion John Kitto Prairieville, LA and Bradford H. Walker Metairie, LA Counsel for Plaintiffs/ Appellants Scott Lowe & Beth Lowe

          Rodney J. Lacoste, Jr. Kristie L. Mouney New Orleans, LA Counsel for Defendants/ Appellees Noble, L.L.C., Roy E. Poole, and Companion Property and Casualty Ins. Co.

          Kris P. Kiefer Metairie, LA Counsel for Defendants/ Appellees James Pitts and Allstate Ins. Co.

          Andrew T. Lilly New Orleans, LA Counsel for Defendant/ Appellee High Performance Solutions, LLC

          William C. Rowe, Jr. Joseph S. Manning Baton Rouge, LA Counsel for Defendant/ Appellee Tony Crawley

          Thomas J. Eppling Julie Steed Kammer Metairie, LA Counsel for Defendants/ Appellees Ernest Wilkes, Saia Motor Freight Line, LLC, and Travelers Indemnity Co. of Connecticut

          Christopher J. Kane New Orleans, LA Counsel for Defendants/ Appellees Robert Arrington, YRC, Inc. and Old Republic Ins. Co.

          G. Bruce Parkerson Jessica A. Savoie New Orleans, LA Counsel for Defendants/ Appellees Tommy Lee Marshall and Max Trans, LLC

          Anne E. Briard New Orleans, LA Counsel for Defendant/ Appellee Star Insurance Co.

          Robert A. Mahtook, Jr. Amy J. Goode Lafayette, LA Counsel for Defendants/ Appellees Little Pine Island Corp., Little Pine Island, LP, and John J. Cummings, III

          H. Minor Pipes, III Kimberly Silas New Orleans, LA Counsel for Defendant/ Appellee American First Ins. Co.

          BEFORE: WHIPPLE, C.J., GUIDRY, AND CHUTZ, JJ.

          GUIDRY, J.

         In this case arising out of a multi-vehicle accident, plaintiffs, Scott Lowe and Beth Lowe, appeal from a judgment of the trial court granting summary judgment in favor of defendants, Little Pine Island Corporation, Little Pine Island, LP, and John J. Cummings, III, dismissing plaintiffs' claims with prejudice. For the reasons that follow, we affirm in part, reverse in part and remand.

         FACTS AND PROCEDURAL HISTORY

         Oak Island, consisting of 1, 482.60 acres of marshland south of Interstate 10 in New Orleans between the Bayou Sauvage National Wildlife Refuge and Interstate 510, is owned by Little Pine Island Partnership. The general partner of Little Pine Island Partnership is Little Pine Island Corporation, whose sole shareholder is John J. Cummings, III.

         On August 24, 2011, Peter Babin IV, an employee of Cummings, observed smoke on Oak Island. Babin called Cummings to report smoke on the property and thereafter contacted the New Orleans Fire Department (NOFD). NOFD responded to the call and determined that there was a marsh fire on the south side of Interstate 10. NOFD investigated the fire but was unable to access it. At that time, NOFD reported that the cause of ignition was "undetermined."

         NOFD returned to Oak Island on August 26, 2011, and determined that the area where the smoke was coming from was not accessible. Helicopter water drops over the affected area by the Louisiana Army National Guard began on August 30, 2011, and a command post was set up at Bayou Sauvage. Command post operations ceased between September 1, 2011, and September 4, 2011, due to Tropical Storm Lee affecting the area.

         On September 5, 2011, NOFD entered the area affected by the marsh fire by boat and determined that accessibility was almost impossible, that it was almost impossible to get heavy equipment in the area due to the soft ground, and that the area was very dangerous for NOFD personnel to work in. NOFD continued to monitor the area, and when flames were detected by air on September 10, 2011, more helicopter water drops were conducted. Over the next few months, NOFD continued to monitor the area daily for fire and smoke.

         Thereafter, before daybreak on December 29, 2011, Scott Lowe was a guest passenger in a vehicle driven by David Porter, traveling westbound on Interstate 10 in New Orleans in the vicinity of Oak Island. Porter encountered a dense cloud of fog and/or smoke, resulting in zero visibility conditions. Although Porter began braking his vehicle, he nonetheless rear-ended the vehicle in front of him owned by Max Trans, LLC and operated by Tommy Lee Marshall, which was obstructing one or more lanes of travel. The Marshall truck apparently had also encountered the cloud of fog and/or smoke and had rear-ended another vehicle, which was also obstructing one or more lanes of travel on Interstate 10. Immediately after the collision between the Porter vehicle and the Marshall vehicle, the Porter vehicle was struck from the side and/or from behind by two additional vehicles.

         On December 20, 2012, Lowe and his wife, Beth Lowe, filed a petition for damages, naming Little Pine Island Corporation, Little Pine Island LP, and John J. Cummings, III (collectively "Little Pine") as defendants, [1] asserting that the cloud of smoke, which either independently or in combination with fog caused the sudden and immediate reduction of visibility on Interstate 10, originated from the marsh fire on Oak Island, which was allowed by Little Pine to burn for many months prior to the accident. Accordingly, plaintiffs alleged that Little Pine was negligent in: allowing an unquenched marsh fire to continue to burn and obstruct visibility along a heavily traveled interstate highway; failing to bring the fire under control over many months; failing to exercise due care under the situation; acting in a careless manner without due regard for the safety of others, including motorists on Interstate 10 near the fire; and in failing to warn of an unreasonably dangerous condition, created in whole or in part by Little Pine. Particularly as to Cummings, the plaintiffs alleged that as the manager of Little Pine, he was negligent in failing to take action and/or direct employees to remedy the unreasonably dangerous condition posed by the marsh fire that was allowed to burn over many months when he had actual or constructive knowledge of said condition.

         Little Pine answered the petition, raising multiple defenses. Particularly, Little Pine asserted that the reduced visibility caused by fog on the morning of the accident was an Act of God for which Little Pine could not be liable and that the cause of the fire on Oak Island was a lightning strike, which also was an Act of God for which Little Pine could not be liable.

         Thereafter, Little Pine filed a motion for summary judgment on August 17, 2015, [2] asserting that there was no genuine issue of material fact as to whether Little Pine was liable for an unavoidable Act of God/force majeure, was liable as a landowner for damage caused by the marsh fire, or owed a duty to plaintiffs related to the extinguishment and/or control of the ...


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