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NOT DESIGNATED FOR PUBLICATION FRENCH QUARTER * NO. 2010-CA-0861 RENOVATIONS, LLC * VERSUS COURT OF APPEAL * DAVID RICHARDSON FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2007-9761, DIVISION "L-6" Honorable Kern A. Reese, Judge ****** Judge Dennis R. Bagneris, Sr. ****** (Court composed of Judge James F. McKay, III, Judge Dennis R. Bagneris, Sr., and Judge David S. Gorbaty) David W. Bernberg Henna Ghafoor 228 St. Charles Avenue 501 Whitney National Bank Building New Orleans, LA 70130 COUNSEL FOR PLAINTIFF/APPELLANT, FRENCH QUARTER RENOVATIONS, LLC

Frank J. Achary BIENVENU FOSTER RYAN & O'BANNON, LLC 1010 Common Street Suite 2200 New Orleans, LA 70112 COUNSEL FOR DEFENDANT/APPELLEE, DAVID RICHARDSON

AFFIRMED

NOVEMBER 24, 2010

Plaintiff, French Quarter Renovations, LLC, appeals the trial court's judgment, which granted defendant's motion for summary judgment. For the following reasons, we affirm. FACTS On August 27, 2007, the plaintiff filed suit against defendant, David Richardson, alleging that its property, located at 2717 Decatur Street, New Orleans, La., was substantially damaged by a tree that fell from defendant's property, located at 2721 Decatur Street, as a result of Hurricane Katrina and/or Rita. The defendant moved for summary judgment asserting that the plaintiff cannot prove that the damage to its property was caused by the fault or negligence of him, and that if the tree did damage to plaintiff's property, it did so by reason of the force of Hurricane Katrina. The defendant also asserted the defense of force majeure or Act of God as a bar to his liability. After a hearing, the trial court granted the defendant's motion for summary judgment. In its reasons for judgment, the trial court stated, in pertinent part: The facts in the instant case are rather sparse. What is known is plaintiff and defendant owned adjacent properties. Defendant had a tree that had overhanging branches. Plaintiff has testified that defendant was told

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that his tree branches [were] unstable. Plaintiff also testified that that defendant would occasionally tie down his tree limbs. Before Hurricane Katrina struck Metropolitan New Orleans, defendant tied his tree branches down. The record reflects that the tree was uprooted. There is no indication, however, that the overhanging branches were ruined or defective in any way. There is simply no objective evidence that this tree was in a ruinous condition and defendant knew about it. An arborist has not opined as to the condition of the tree prior to Hurricane Katrina. Plaintiff's expert testified that the tree caused the damage. He is an appraiser, however, not an arborist. He is thus not competent to testify as to the tree's condition. Assuming arguendo, there were issues of fact regarding the condition of the tree, the record is clear that there was an intervening cause. It can be extrapolated from the known facts that the tree was uprooted because of hurricane force winds. It can also be determined from the reported damage that the tree fell unto the neighboring property. Clearly it was Hurricane Katrina that caused defendant's tree to be uprooted, which in turn caused plaintiff's damage. The Court concludes that no genuine issues remain. The plaintiff cannot establish that the tree was defective, and defendant knew that the tree was defective. Additionally, the Court finds that an Act of God, Hurricane Katrina, caused the tree to fall unto plaintiff's property. The sole issue on appeal is whether the trial court erred by granting summary judgment. STANDARD OF REVIEW Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. La. C.C.P. art. 966(B); Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to
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interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. When, as in the instant case, the mover will not bear the burden of proof at trial, the mover is not required to negate all essential elements of the adverse party's claim, but only to point out to the court that there is an absence of factual support for one or more of those essential elements. La. C.C.P. art. 966(C)(2). Once the mover has done so, the burden shifts to the adverse party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, and if he fails to do so, the mover is entitled to summary judgment. La. C.C.P. art 966 (C). DISCUSSION Under Louisiana Civil Code article 2317, a person is responsible for damages caused by things which they have in their custody. The Louisiana Civil Code article 2317.1, in pertinent part, specifies that: The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. In the instant case, plaintiff contends that the damage to its property was caused by the negligence of Mr. Richardson, in failing to adequately maintain his premises and/or failing to adequately observe the condition of his premises. In support of his motion for summary judgment, defendant attached his affidavit as well as the depositions of Benny Naghi, the owner of French Quarter Renovation, and Max Johnson, plaintiff's expert. Defendant's affidavit stated that: (1) the sycamore tree, which is the subject of these proceedings, was healthy and stable;
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(2) at the time of Hurricane Katrina, he had "tied down" said tree, as well as other plants and trees on his property, in an attempt to protect and secure them; and (3) the winds of Hurricane Katrina uprooted said tree, and knocked it down. In Mr. Naghi's deposition, he testified that he was the owner of the property at 2717 Decatur Street at the time of Hurricane Katrina. Although Mr. Naghi did not know what caused the tree to fall, he thought it was from "the wind from the hurricane." Mr. Naghi testified that he did not know if the tree was diseased, and only remembered the rope that defendant used to tie it down. In Mr. Johnson's deposition, he testified that he only looked at the damage to plaintiff's house and did not examine the tree. He testified that the total estimate of damage was $52,500.00. In its opposition to summary judgment, plaintiff argues that "defendant clearly had notice of the defect of the subject tree, as is further evidenced by the fact that he had tied it down with ropes well before the storm, instead of cutting it down." Based on the evidence, the trial court concluded that the plaintiff failed to establish that the tree was defective, and that the defendant knew that the tree was defective. We agree. Because the plaintiff failed to rebut the defendant's motion with any evidence indicating that he will be able to prove that the tree had a defect and that the defendant was aware of the defect, the trial court correctly granted the motion for summary judgment. Accordingly, we affirm the judgment of the trial court.

AFFIRMED

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