FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-07669,
DIVISION "G-11" Honorable Robin M. Giarrusso, Judge
Michael S. Brandner, Jr. Scot P. Koloski MIKE BRANDNER INJURY
ATTORNEYS, LLC, Joseph “Joey” F. Lahatte, III
LAHATTE LAW FIRM, L.L.C., James J. Carter CARTER & MCKEE,
LLC COUNSEL FOR PLAINTIFF/APPELLANT.
D. Laventhal LAW OFFICE OF KIMBERLY G. ANDERSON Kevin Phayer
ATTORNEY AT LAW LAW OFFICE OF ROBERT E. BIRTEL COUNSEL FOR
composed of Judge Roland L. Belsome, Judge Joy Cossich
Lobrano, Judge Regina Bartholomew-Woods
civil appeal, Plaintiffs-Appellants seek review of the trial
court's February 15, 2018 judgment granting summary
judgment in favor of Defendants-Appellees, dismissing
Plaintiffs-Appellants' claims. On appeal,
Plaintiffs-Appellants argue that the trial erred in granting
summary judgment because there existed a genuine issue of
material fact making summary judgment improper. They further
allege that in granting summary judgment, the trial court
incorrectly applied the doctrine of force majeure.
For the reasons that follow, we reverse the trial court's
granting of summary judgment and remand for further
1, 2015, Plaintiffs-Appellants Karen Guy ("Ms.
Guy"), Steven Guy ("Mr. Guy"), and their
dependent, Zak Guy (collectively "Appellants")
visited Spanish Plaza, which is adjacent to the Mississippi
River and the New Orleans Riverwalk. While there, it began to
rain and Appellants took refuge from the weather under a
kiosk/display cart. A tent collapsed onto the kiosk/display
cart under which Appellants were standing, pinning and
injuring Ms. Guy. As a result, Ms. Guy suffered an amputated
finger, cognitive defects, mental anguish associated with an
amputated finger, and an inability to play the piano, which
is her trade; Mr. Guy and their dependent son suffered mental
and emotional injuries.
filed a petition for damages against Defendants-Appellees
Riverwalk Marketplace, L.L.C., and Liberty Mutual Insurance
Company, alleging that Defendant-Appellees' negligence
caused Ms. Guy's injuries. Following discovery,
Appellants amended their petition for damages to name as
defendants Scurlock Rentals, L.L.C., and Western Heritage
Insurance Company (collectively, all of these parties are
referred to as "Appellees"). Thereafter, Defendant,
United States Fire Insurance Company, filed a motion for
summary judgment seeking to dismiss all claims pursuant to
the doctrine of force majeure; all other Defendants
joined the motion. In opposition to Defendants-Appellees'
motion for summary judgment, Appellants provided the
depositions of two (2) expert witnesses - meteorologist Edwin
Roy and engineer Frederich W.L. Gurtler. On February 15,
2018, the trial court granted Appellees' motion for
summary judgment, and dismissed Appellants' claims. It is
from this judgment that Appellants now appeal.
appeal, Appellants raise the following assignments of error:
1. Whether the trial court erred in granting Appellees'
motion for summary judgment because there exists a genuine
issue of material fact as to whether Appellees properly
secured the tents and kiosks/display carts in Spanish Plaza,
and whether Appellees' negligence in failing to secure