from the Monroe City Court for the Parish of Ouachita,
Louisiana Trial Court No. 2016CV01182 Honorable Aisha S.
ANTHONY J. BRUSCATO Counsel for Appellants.
DAVENPORT, FILES & KELLY, LLP Martin Shane Craighead
Counsel for Appellee.
WILLIAMS, GARRETT, and BLEICH (Ad Hoc), JJ.
BLEICH, J. (Ad Hoc).
action arises as the result of personal property damage, and
other contractual issues, caused when plaintiffs' leased
residence flooded. Plaintiffs appeal a summary judgment
granted in favor of the defendant landlord. Finding that
material issues of fact remain, we reverse and remand.
December 29, 2015, Gaitano Milazzo leased an unfurnished
residence from Douglas Randall Harvey ("Harvey"),
the owner of the house located on Auburn Avenue in Monroe,
Louisiana. The lease was for a period of two years, beginning
January 3, 2016. Milazzo, his wife Pamela, and members of his
immediate and extended family (collectively
"Milazzo"), also resided in the
residence. On the evening of March 8, 2016, rain
began to fall in the Monroe area, and in the early morning
hours of March 9, 2016, the rental house experienced flooding
that caused Milazzo to notify Harvey and immediately
evacuate. By 7:00 a.m., Harvey visited the house when the
rain subsided and the flood waters had receded, to allegedly
photograph damage caused to the residence by the flooding.
The rain began to fall again and continued for the following
two days. Eventually the house flooded a second time with
approximately 11 inches of rain. The total four-day rain
event caused historic flooding in the Monroe area, known as
the "thousand year flood."
April 14, 2016, Milazzo filed suit against Harvey and his
public liability insurer, Shelter Mutual Insurance Company
("Shelter"),  seeking personal property loss damages
on the grounds that Harvey breached the lessor's
warranties of habitability and peaceful possession by failing
to disclose that the residence was flood prone. Milazzo also
raised claims of breach of the lease obligation by Harvey for
his unauthorized entry into the home to take photographs,
Harvey's bad faith for failure to disclose the defects at
the time of leasing and unfair trade practices. Milazzo
sought refund of all payments made in connection with the
residence, compensation for out-of-pocket expenses and for
loss of use and time, inconvenience, aggravation, mental
distress and attorney fees.
September 22, 2016, Harvey and Shelter moved for summary
judgment on the grounds that Milazzo's damage was caused
by an act of God or force majeure (the
"thousand year flood") which precluded any
recovery. Harvey conceded that an issue of fact
remained as to whether Milazzo should have been informed of
previous flooding claims made in connection with the house,
but argued that this fact was not material because the
historic flood caused Milazzo's damage. Several documents
were submitted by Harvey in support of summary judgment.
Those included the affidavit of Archie Neal Brown, Director
of the Ouachita Parish Office of Homeland Security and
Emergency Preparedness at the time of the flooding event.
Brown attested to the fact that approximately 5, 250
structures in Ouachita Parish, including residences and
businesses, sustained water intrusion and/or flooding during
the flood events of March 8-11, 2016. Brown averred that many
of the structures were not in flood zones and that much of
the area would not have been adversely affected by a one
hundred year flood event.
copies of four reports generated from the United States
Department of Commerce, National Oceanic & Atmospheric
Administration, showing a total four-day rainfall amount of
20.67 inches at the Monroe Regional Airport, were submitted
in support of summary judgment. Those documents confirm that
a little more than six inches of rain fell at the airport
from 6:00 p.m. on March 8, 2016, until 1:00 a.m. on March 9,
2016, and that by 2:00 a.m., that amount increased to more
than seven inches.
also submitted portions of the depositions of Gaitano and
Pamela Milazzo which confirmed that on March 8, 2016, at
approximately 10:00 p.m., there was no water in the house. By
1:30 a.m., the following morning, however, water was above
foot level in the residence. At some point prior to that
time, Milazzo's daughter discovered water in the kitchen
which she attributed to dishwasher overflow. Gaitano Milazzo
returned to the residence at approximately 10:00 a.m. the
following morning to discover eight to ten inches of rain in
the house and his furniture "destroyed."
portion of Harvey's deposition offered in support of
summary judgment confirmed that he visited the house at 7:00
a.m. on March 9, 2016, when the water had receded, but the
floors remained wet. According to Harvey, 11 inches of water
eventually invaded the house a second time.
affidavit was also submitted and showed he purchased the home
in December of 2014 and lived in it for 12 months. Harvey
claimed that the extent of his direct knowledge regarding any
water intrusion events included information he received in
connection with the house closing, when he was provided a
flood loss history showing "prior flood claims" in
September 1978, May 1989 and April 27, 2011. A copy of the
"National Flood Insurance Program Property Loss History,
" documenting the prior flood claims, was referenced and
attached to ...