ADP Properties, LTD. VS Joe Melvin Ricks, Sr. and Evelyn Ricks
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL 1 FIRST CIRCUIT J j NUMBER 2013 CA 1145 Cfl/lil/ ADP PROPEkTIES, LTD. VERSUS JOE MELVIN RICKS, S t.AND EVELYN RICKS Judgment Rendered: e] F $ F ] F ' k ir : k ' X ' X ' X fF Appealed from the Twenty-First Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Docket Number 2406-2763 The Honorable Brenda Bedsole Ricks, Judge Presiding JF ' k ' X ' X ' A' % it 'it ' X Douglas Curet Counsel for Plaintiff/Appellant, Hammond, LA AI3P Properties, Ltd. Cassandra Butler Counsel for Defendants(Appellees, Independencc, LA Jae Melvin Ricks, Sr. and Evelyn Ricks BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, JJ. WHIPPLE, C.J. This matter is before us on appeal by the plaintiff, ADP Properties, Ltd., from a judgment of the trial court dismissing plaintiff' s claims against the defendants, Joe Melvin Ricks, Sr. and Evelyn Ricks. For the reasons that follow, we affirm. FACTS ANll PROCEDURAL HISTORY Joe Melvin Ricks, Sr. and Evelyn Ricks owned properiy in Hammond, Louisiana, adjacent to Pine Creek University Apartments, which were owned by ADP Properties, Ltd (" ADP"). During Hurricane Katrina, which made landfall on August 29, 2005, a tree near the southern property line of the Ricks' property was uprooted by Katrina' s winds and fell over onto Pine Creek Building 9.' A couple of weeks after the hurricane, Tina Ard, the Pine Creek Property Manager, accompanied by Steve Jackson, the Pine Creek Courtesy Officer, went to Mr. Ricks' s home and informed him that the tree had fallen. Ms. Ard asked Mr. Ricks if he had insurance on the tree. NIr. Ricks told them that he had come from New Orleans, that he had lost everything, and that he had no insurance.Z Ms. Ard told him that she was sorry to hear that and that she understood his predicament. She acknowledged that Pine Creek did not have insurance coverage either, and told him that any assistance he could provide to help remove the tree would be appreciated. About one week later, Mr. Jackson retumed and again spoke to Mr. Ricks about the tree. Mr. Ricks again advised that he had no insurance and indicated that he would try to talk to someone about removing the tree. Building 9 contained four apartment units: two units on the first level and two units on the second level. zAt the time of Hurricane Katrina, the Ricks' property was merely an unimproved lot. Mr. Ricks testified that he subsequently began construction of a home on the property in December of 2005. 2 Shortly thereafter, Mr, Ricks hired a crew to remove the tree, who agreed to try to do so " for a couple of hundred dollars." Th crew was able to remove limbs from the tree, but was unable to remove the tree from the building. Because they were unable to complete the job, Mr. Ricks did not pay them. Mr. Ricks next hired Sylvester Matthews to try to remove the tree. Mr. Matthews was able to cut through the trunk of the tree, wluch allowed the bottom portion of the uprooted trunk to stand upright on Mr. Ricks' s property. However, when Mr. Matthews tried to lift the remaining portion of the tree from the building, he discovered that it was bound with power lines. Mr. Ricks and Mr. Matthews called Entergy, who sent a crew to assess the situation. Entergy representatives informed them that they could not remove the wires because the wires were on private property, and that it was the responsibility of the property owner, ADP, to remove the wires. Thus, Mr. Matthews was unable to remove the remaining portion of the tree from Building 9. Mr. Ricks thereafter made several attempts to contact an ADP employee at Pine Creek to advise of the problem, but was unable to reach anyone. ADP representatives made no other attempts to communicate with Mr. Ricks. Mr. Ali Daneshian, the owner and operator of ADP Properties, testified that after Mr. Ricks' s last attempt to have the tree removed in January of 2006, he hired someone to remove the tree and began reconstruction of Building 9 in March of 2006. Mr. Daneshian admitted he had no personal communications with Mr. Ricks. Instead, on 7uly 6, 2006, Ms. Ard, on behalf of Mr. Daneshian, sent a demand letter to Mr. and Mrs. Ricks: ( 1) seeking payment in the amount of 208,640. 00 for costs allegedly incuned in removing the tree and repairing the damage to Building 9 and ( 2) advising that legal action would commence if no response was received within fifteen days. On August 24, 2006, ADP filed a petition for damages, naming Mr. Ricks and his wife Evelyn Ricks as defendants. ADP contended therein that the Rickses 3 failed to take the appropriate removal action of tiie tree; and, [ sic] that the damages sustained by the plaintiff could have been reduced or prevented by the exercise of reasonable care by the defendants." recovery for " all property damage!losses the tree . . . ; building; In its petition, ADP sought including . . . costs zncurred in removing the market value af the building destroyed; the costs of repairs to the associated removal costs incurred; loss of rent revenues; [ and] inconvenience." The matter was tried on October 5, 2Q12. trial court ruled in favor of the Rickses. At the conclusion of trial, the Thus, a judgment dismissing ADP' s claims was signed on October 17, 2012. ADP then filed the instant appeal, contending that the trial court erred in: 1) failing to find that the Rickses voluntarily " assumed a duty," under the duty- risk analysis in tort, and consequently became legally indebted to ADP; (2) failing to find that their substandard conduct was a cause- in- fact of ADP' s damages; and 3) failing to award damages for their substandard conduct and ( 4) failing to award damages. DISCUSSION In its first assignment of error, ADP contends that Mr. and Mrs. Ricks were liable in tort for the damages caused by their tree under theories of general negligence, pursuant to LSA-C. C. art. 2315, and strict liability, pursuant to LSA- C.C. art. 2317.3 ADP further contends that the Rickses " voluntarily assumed a dury" to remove the fallen tree by hiring individuals engaged in tree removal. 3To the extent that ADP argues that the Mr. and Mrs. Ricks are strictly liable under LSA-C. C. art. 2317 as the owners of property having an anreasonably dangerous condition or defect, we note that the 1996 amendment enacting LSA-C. C. art. 2317. 1, effective April 16, 1996, abolished the concept of " sh-ict liability" for an " owner or custodian of a thing" governed by prior interpretation of LSA- C. C. art. 2317. A more appropriate term now for liability under LSA-C.C. arts. 2317 and 23171 is " custodial liability," but such liability is nevertheless predicated on a finding of negligence. Jackson v. Brumfield, 2009-2142 ( La. App. 15` Cir. 6/ 11/ 10), 40 So. 3d 1242, 1243. See also Roeers v. Citv of Baton Rouee, 20041001 ( La. App. 1 s` Cir. 6/29/ OS), 916 So. 2d 1099, ll 02, writ denied, 2005- 2022 (La. 2/ 3/ 06), 922 So. 2d 1187. 4 ADP contends that the damages sustained by uilding 9 could have been reduced or significantly prevented had the; exzrcised reac a-,able care a.n c mrnunicaYing their inability to proceed or completr t1a Cree remc val. Contrariv ise, whatsoever to APD. 141r. and Thev Irs, FLicks conYend that they owed no duty ontend ihat Hurrican:, k. atriria' s tivind eaused the tree, which was otherwise perfectly healthy w tk no noticeabl iices or defects, to be uprooted and fall over the fence line ontc AIjP' s property. Mr. and Mrs. Ricks contend that this was an act of God; accomplished directly and exclusively by natural causes, without human intervention, and which could not have been prevented by the exercise of reasonable care. Altematively, they contend that if the uprooting of the tree by hurricane force winds is not deemed an act of God, APD nonetheless failed to establish there was a vice or defect rendering the tree unreasonably dangerous, or, that they had either actual or constn ctive knowledge of any alleged defect, wluch is necessatry fe r a finding of liability untler LSA-C.C. art. 2315 and LSA-C. G art. 2317. Moreover, to the extent that ADP cantends that the delay in removing the tree caused additional damages, Mr. and Nlrs. Ricks contend that tk ey made a reasonabl.e effort to help ADP, noting that Mr. Ricks hired two different crews t cut the tyee. The} further conte id that Mr. Iticks actect reasonably under the circumsta nczs : n thaz h attemp2ed to contact the ADP representative to representative testi advise tr. at he ed that sh ivas unabl2 Yo proceed, unlike ADP, ; hose never attempted to again make contact and whose owner testified he never attempted to contact 1 1r. Ricks. As such, they contend they exercised reasonable care under the circumstances and that their conduct conformed to the appropriate tandard of care owed, if any. In general, the owner or person h ving custody of immovable property has a duty to keep such property in a reasonably safe condition. Bozeman v, Scott Ran e Twelve Limited Partnership, 2003- 0903 ( La. S App. ls` Cir. 4/ 2/ 04), 878 So. 2d 615, 619, writ not considered, 2004- 1945 ( La. 1. 18104), 8$ 5 So. 2d 1142. Thus, he must discover any unreasonably dang rou condition on his premises and either correct the cond'ation or warn potentia vzctims of i s existence. Vinccinelli v. Musso, 2001- 0557 ( La. App. '°` :; r. 2/ 27i02), 818 So. 2d 163, 165, writ denied, 2002- 0461 ILa. 6,'7/ Q2), 81 liability theories asserted under So. d SA- f.. C. I, arts. i7. This dury is the same under 2317 and 231. Willliams v. Leonard Chabert Medical Center, 98- t029 (T, a. App. i" Gir. 9/ 26/99), 744 So. 2d 206, 209, writ denied, 2000- 0011 ( La. 2/ 18/ 00), 754 So. 2d 974. Moreover, under either theory, the plaintiff has the burden of proving that:. ( 1) the property that caused the damage was in the " custody" Gf ihe defendanr, (2) the property had a condition that created an unreasonable risk of hazm to persons on the premises; 3) the unreasonably dangerous condiYion was a cause in fact of the resulting injury; and ( 4) the defendant had actual or cor stiuctive knowledge of the nsk. Vinecinelli v. Musso, 818 So. 2d at 165. A threshold issue in any negligence action is whether the dafendant owed the plaintiff a duty, Rando v. Anco Insulations, Inc., 2008- 1163, 2008- 1169 ( La. 5/ 22/ 09), 16 So. 3d 1065, 1086. Alt lt ough the determination of whether to assign a legal duty is fact specific, tYie assue of whetl er a uty was owed is ultimat.ely a question of law. Smith v. Kopynec,? a12 472 ( La. A p. ls` Cir. 6% i3), 119 So. 7,' 3d 835, 838. An act of God is an unusual, extraordinary, sudden and unexpected manifestation of the forces of nature which cannot be prevented by human care, skill, or foresight. K & M Enterprises of Slaughterq Inc. v. C.B. Pennzn ton, 99- 0930 ( La. lsr App. Cir. 5/ 12/ 00), 764 So. 2d 1089, 1092, writ denied, 2000- 1537 La. 6/ 30/ 00), 766 So. 2d S4R. The fact t:hat no uman agency can resist an act of God renders misfortune occasioned solely thereby a loss by inev;table accident, which must be bome by the one upon vhom it falls. Rector v. Hartford Accident 6 Indemnity Com anv of Hartford, Connecticut, 120 Sa 2d 5ll, 515 ( La. App. ls` Cir. 1960). An injury caused by an ac of God is an injury due directly and exclusively to natural causes, which could not have been prevented by the exercise of reasonable care and foresight. Thus, recovery for injuries caused by extreme weather conditions may be precluded by the application of this rule. Rector v. Hartford Accide t & Indemnitj Com. anv of Hartford, Connecticut, 120 p So. 2d at 515. In the instant matter, the trial court heard the testimony and reviewed the evidence submitted by the parties prior to rendering its oral reasons. Based on the evidence adduced at trial and the credibility determinations made by the trial court, the trial court concluded that the evidence established that the tree was healthy, and implicitly found that the uprooting of the healthy tree by Hurricane Katrina' s winds was an act of God, as follows: I think most of the people in here lived through Katrina. We all know how devastating it was. We all know the circumstances. We lived under it far weeks without power, We know the trees that were down and the damage that was occasioned by those trees. The fact that this was a green tree. The fact that it was a solid tree. That it was not something that should have incurred notice to either side. The court does not find that [ the Rickses were] negligent in the fact that the tree fell on the building. It' s regrettable that it was not repaired within a seven month period. Regrettable that neither side had insurance that would cover this. But based upon the credibility of the witnesses and the evidence that has been adduced at this trial, the court does not find for plaintiff. Under the manifest error rule, the reviewing court does not decide whether the factual fmdings are right or wrong, but whether they are reasonable in light of the record. Butler v. L & N Food Stores, 20ll- 0577 ( La. App. 1` Cir. 2/ 10/ 12), 91 So. 3d 342, 344. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact may not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So. 2d 840, 844 ( La. 1989). It is the role 7 of the factfinder to weigla the respective credibilities of the wimesses, and this court will not second- guess the credibility determinations of the trier of fact. Gran er v Christus Health Central Louisiana, 2012- 1$ 92 ( La. 6/ 28/ 13), _ So. 3d_, _. Photographs of the tree that were introducad into evidence show that the tree was uprooted before falling onto established that the tree was solid. AllP' s property. The testimony further ADP presented no evidence whatsoever to establish that the tree contained any defect, vice, or condition that created an unreasonable risk of harm or otherwise rendered it unreasonably dangerous, as required to prevail on a negligence or strict liability claim herein. Indeed, Mr. Daneshian conceded that he saw nothing wrong with the tree and that it did not appear to be rotten or have any defects. After a thorough review of the record herein, we are unable to say the trial court erred in its determination that the loss was caused by an inevitable accident for which recovery of damages from Mr. and Mrs. Ricks is precluded. See Dotson v. Hubbard, 2009- ll94 (La. 151 App. Cir. 2/ 12/ 10)( unpublished opinion). To the extent that ADP contends that the Ricks' conduct was substandard in that they failed to take appropriate removal actions, the tesrimony showed that Mr. Ricks hired two different crews to assist ADP in the removal of the tree from Building 9. After the second crew was informed by Entergy that the power lines that bound the tree could only be removed by the prc perty owner, i.e., APD, Mr. Ricks attempted, without success, to so advise an . ADP representative that his crew could not proceed. Mr. Daneshian made no attempt whatsoever to contact Mr. Ricks, and Ms. Ard contacted Mr. Ricks only once after the storm. ADP made no further attempts to communicate with Mr. Ricks. On review, and considering the record in its entirety, we likewise find no error in the trial court' s determination that Mr. and Mrs. Ricks exercised 8 reasonable care under the circumstances after this unforlunate incident. Thus, finding no errar in the trial court' s factual findings, which are amply supported by the record, we find no error in the trial court' s ultimate conclusion that there was no negligence on their part. Thus, this assignment of error lacks merit. Given our conclusion that the trial court correctly determined that Mr. and Mrs. Ricks were not negligent herein, we pretermit discussion of ADP' s remaining assignment of errors. CONCLUSION For the above and foregoing reasons, the October 17, 2012 judgment of the trial court is hereby affirmed. Costs of this appeal are assessed against the plaintiff/appellant, ADP Properties, Ltd. AFFIRMED. 9
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