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Guy v. The Howard Hughes Corp.

Court of Appeals of Louisiana, Fourth Circuit

December 19, 2018

KAREN GUY AND STEPHEN GUY
v.
THE HOWARD HUGHES CORPORATION, AND LIBERTY MUTUAL INSURANCE COMPANY

          APPEAL 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.

          Nahum D. Laventhal LAW OFFICE OF KIMBERLY G. ANDERSON Kevin Phayer ATTORNEY AT LAW LAW OFFICE OF ROBERT E. BIRTEL COUNSEL FOR DEFENDANT/APPELLEE.

          Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods

          REGINA BARTHOLOMEW-WOODS, JUDGE

         In this 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 proceedings.

         FACTUAL BACKGROUND

         On July 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.

         PROCEDURAL HISTORY

         Appellants 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.

         DISCUSSION

         On 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 ...

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