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
Joffrion Garrett Joffrion John Kitto Prairieville, LA and
Bradford H. Walker Metairie, LA Counsel for Plaintiffs/
Appellants Scott Lowe & Beth Lowe
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.
P. Kiefer Metairie, LA Counsel for Defendants/ Appellees
James Pitts and Allstate Ins. Co.
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
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.
Bruce Parkerson Jessica A. Savoie New Orleans, LA Counsel for
Defendants/ Appellees Tommy Lee Marshall and Max Trans, LLC
E. Briard New Orleans, LA Counsel for Defendant/ Appellee
Star Insurance Co.
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
Minor Pipes, III Kimberly Silas New Orleans, LA Counsel for
Defendant/ Appellee American First Ins. Co.
BEFORE: WHIPPLE, C.J., GUIDRY, AND CHUTZ, JJ.
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.
AND PROCEDURAL HISTORY
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.
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."
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.
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.
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.
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,
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.
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.
Little Pine filed a motion for summary judgment on August 17,
2015,  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