Haynes Interests, LLC; COS Investment Group, LLC; Blue Bayou Water Park, LLC; Dixie Landin, LLC v. Garney Companies, Inc. d/b/a Garney Construction and the East Baton Rouge Sewerage Commission

STATE OF LOUISIANA

COURT OF APPEAL
FIRST CIRCUIT

2019 CA 0723
P,

HAYNES INTERESTS, LLC; COS INVESTMENT GROUP, LLC; BLUE
BAYOU WATER PARK, LLC; DIXIE LANDIN, LLC

VERSUS

GARNEY COMPANIES, INC. D/ B/ A GARNEY CONSTRUCTION AND THE
EAST BATON ROUGE SEWERAGE COMMISSION

C/ W

2019 CA 0724

HAYNES INTERESTS, LLC; COS INVESTMENT GROUP, LLC; BLUE
BAYOU WATER PARK, LLC; DIXIE LANDIN, LLC

VERSUS

GARNEY COMPANIES, INC. D/ B/ A GARNEY CONSTRUCTION AND THE
EAST BATON ROUGE SEWERAGE COMMISSION

Judgment rendered:
FEB 2 6. 2021

On Appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
No. 631967, Sec. 22

The Honorable Timothy E. Kelley, Judge Presiding

J. R. Whaley Attorneys for Plaintiffs/ Appellants
Benjamin H. Dampf Haynes Interests, LLC; COS
Baton Rouge, LA Investment Group, LLC; Blue Bayou
Water Park, LLC and Dixie Landing
Amusement Park, LLC

Mark E. Van Horn Attorney for Defendant/Appellee
New Orleans, LA Gamey Companies, Inc. D/ B/ A
Gamey Construction

PSG bnc, s

Michael P. Schillage Attorney for Defendant/Appellee
Baton Rouge, LA The East Baton Rouge Sewerage
Commission

BEFORE: McCLENDON, HOLDRIDGE, AND LANIER, JJ.

HOLDRIDGE, J.

Plaintiffs, Haynes Interests, LLC ( Haynes), COS Investment Group, LLC

COS), Blue Bayou Water Park, LLC, and Dixie Landin, LLC ( sometimes

collectively referred to as " Haynes"), appeal summary judgments rendered in favor

of defendants, Garrey Companies, Inc. d/ b/ a Garrey Construction ( Garrey) and

the East Baton Rouge Sewerage Commission ( Commission), and dismissing their

lawsuits with prejudice. We affirm the summary judgment rendered in favor of the

Commission, reverse the summary judgment rendered in favor of Garrey, and

remand.

BACKGROUND

In 2013, the City of Baton Rouge/ Parish of Baton Rouge ( City/Parish)

contracted with Garrey to serve as the general contractor on various sewer

improvement projects under the direction of the Commission, the owner of the

projects.
The rehabilitation project involved constructing and improving sewer

lines along or near Highland Road in Baton Rouge, Louisiana ( sometimes referred

to as " the Project"). The various Haynes' interests own 125 acres of property on

both sides of Highland Road, generally bounded by Highland Road, Interstate 10,

and Barringer Foreman Road. COS owns acreage abutting and adjoining the 125

acres. Haynes also owns Blue Bayou Water Park and Dixie Landin, which are

situated along Highland Road. In August of 2013, in connection with the Project,

COS and the Commission entered into a written servitude agreement pursuant to

which COS granted the Commission sewer and temporary construction servitudes

over certain property.

On July 11, 2014, Haynes filed this lawsuit against Garrey and the

Commission seeking to recover damages for value of items that were taken from

its property during the construction of the sewer improvements. Haynes also

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sought to recover damages against Garrey and the Commission for the alleged

breach of a lease agreement, contract, and/ or the servitude agreement.

In the petition, Haynes made the following allegations: In order to perform

its work on the Project, Garrey needed to access certain areas of Haynes' property,

and Garrey entered into an oral agreement with Haynes for that purpose. This oral

agreement permitted Garrey access to and over certain property and also allowed

Garvey to use Haynes' property for the temporary storage of equipment, materials,

and vehicles relating to Gamey' s work on the Project. In exchange for the use of

Haynes' property, Garvey agreed to compensate Haynes with fill dirt generated by

the Project. During the course of Gamey' s work, and as a condition for the use of

Haynes' property, Haynes instructed the Commission and Garrey to ensure the

property was secured. Specifically, Garrey and the Commission were instructed to

block an access road with concrete barriers ( which were owned and used by

Haynes to block the road at all other times) each night when Garrey left the

property, as the access road led directly from Barringer Foreman Road onto

Haynes property. Haynes stored materials and equipment on the property Garrey

had access to, and Garrey and the Commission were informed that securing the

access road was important to prevent trespass or other illegal activity on Haynes'

property.

According to Haynes, from late December 2013 to early January 2014, items

owned by Haynes and located on the property were stolen including, but not

limited to, large pumps, aluminum bleachers, aluminum piping, crushed concrete,

and limestone. Haynes alleged that the thieves used Gamey' s utility equipment to

remove crushed concrete and limestone, as well as other items, from Haynes'

property. Haynes maintained that the use of Gamey' s equipment to achieve the

thefts was possible because Garrey failed to secure its equipment and because

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security codes on the equipment, disabling the equipment from use by an

unauthorized user, were not enabled at the time of the thefts. Haynes also alleged

that the thefts occurred because of Garrey and the Commission' s failure to secure

the access road.

Haynes asserted negligence and vicarious liability causes of action against

Garrey and the Commission pursuant to articles 2315, 2316, and 2320 of the

Louisiana Civil Code. According to Haynes, the fault of Garrey and the

Commission arose from the fact that the thefts occurred while the property was

under their control and because both Garvey and the Commission failed to do what

reasonable entities in their position would have done despite Haynes' specific

instructions on the steps that should be taken to secure Haynes' property.

Haynes alleged that Garvey owed it a duty to use reasonable care while on

its property, including the duty to secure the property, to follow Haynes'

instructions on securing Haynes' property, and to secure its own utility equipment.

Haynes averred that Garrey breached all of these duties and that Gamey' s actions

were the cause -in -fact of its injuries. Haynes also asserted causes of action against

Garrey for breach of the lease agreement and trespass. With respect to these

claims, Haynes alleged that Garrey and Haynes had a viable oral lease agreement

regarding Gamey' s use of Haynes' property, that Garrey used the property for a

purpose other than for which it was leased, entitling Haynes to damages pursuant

to La. Civ. Code art. 2868, and that Garvey used more of Haynes' property than

was contemplated by their agreement.

In the petition, Haynes asserted breach of contract claims against the

Commission, submitting that in addition to the terms of the servitude agreement,

Haynes specifically informed the Commission of the need for appropriate security.

Haynes urged that the Commission' s failure to abide by the terms of the servitude

M

agreement and the terms of oral communications constituted a breach of the lease,

contract and/ or servitude.

On April 24, 2018, Garvey filed a motion for summary judgment in which it

argued that there was no enforceable oral lease between Haynes and Garrey

because their agreement lacked a certain or determinable price as required by

Louisiana lease law. Garrey further maintained that even if there was a valid and

enforceable lease, Garrey, as a lessee, owed no legal duty to protect Haynes or its

property from third -party theft. Thus, Garvey submitted that Haynes could not

establish the duty element of its negligence claim, entitling Garvey to judgment as

a matter of law. Garrey and Haynes filed documentary evidence supporting and

opposing the motion for summary judgment.

On August 20, 2018, the Commission filed its motion for summary

judgment, in which it argued that it could not be held vicariously liable for any

actions or inactions on Gamey' s part because: ( 1) Garrey was an independent

contractor on the Project, and ( 2) Garrey was not guilty of negligence to which

vicarious liability could attach. Further, the Commission insisted that it did not

breach the servitude agreement executed between COS and the Commission, the

only party with whom the Commission had a contract, because the servitude

agreement did not require the Commission to provide security. Further, the

Commission urged, there was no evidence to suggest that any other written or oral

agreement existed between the parties that would obligate the Commission to

secure Haynes' property. To the contrary, the Commission pointed out that there

was evidence demonstrating that Haynes attempted to gain security measures as

part of the servitude agreement and the City/Parish denied that request. Lastly, the

Commission argued that if there was any claim for trespass asserted against it by

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Haynes, any such claim for damages had been specifically waived by the clear

terms of the servitude agreement.

A hearing on the motions for summary judgment was held on November 5,

2018. As to Gamey' s motion, the trial court did not decide whether there was a

valid and enforceable lease between the parties. Instead, the court ruled that even

if there was a valid lease agreement between Haynes and Garrey, Louisiana law

did not impose a duty on a Garvey to protect Haynes' from the criminal acts of

third parties in the absence of a history or any facts to put the lessee on notice. In

this case, the court noted, there was no evidence showing a history of criminal

activity on Haynes' property. The court concluded that Garrey did everything

reasonable to protect the property, including locking the back gate and locking its

machinery, and found that Haynes failed to offer evidence
opposing the

attestations of Gamey' s affidavits.

As to the Commission' s motion for summary judgment, the court first ruled

that the Commission could not be held vicariously liable for Gamey' s conduct

because Garrey was an independent contractor. The court then found any duties

imposed by the Louisiana Civil Code upon the Commission, as the holder of a

predial servitude, did not extend to protect the landowner, Haynes, against criminal

activities of third persons. Finding no basis in the law upon which liability of the

Commission could attach, the trial court granted the Commission' s motion for

summary judgment.

This appeal, taken by Haynes, contesting the granting of both motions for

summary judgment, followed.'

The appeals were filed separately in this court; Haynes filed a motion to consolidate the
appeals. By order dated December 4, 2019, this court consolidated the appeal filed and docketed
as 2019- 0724 with the appeal docketed as 2019- 0723.
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SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-

scale trial when there is no genuine issue of material fact. Georgia- Pacific

1St

Consumer Operations, LLC v. City of Baton Rouge, 2017- 1553 ( La. App.

Cir. 7/ 18/ 18), 255 So. 3d 16, 21, writ denied, 2018- 1397 ( La. 12/ 3/ 18), 257 So. 3d

194. After an opportunity for adequate discovery, a motion for summary judgment

shall be granted if the motion, memorandum, and supporting documents 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. 966A( 3). In reviewing a trial court' s ruling on a

motion for summary judgment, an appellate court reviews the evidence de novo

using the same criteria that govern the trial court' s determination of whether

summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital,

Inc., 93- 2512 ( La. 7/ 5/ 94), 639 So. 2d 730, 750.

The Code of Civil Procedure places the initial burden of proof on the party

filing the motion for summary judgment. La. C. C. P. art. 9661)( 1). If the mover

will not bear the burden of proof at trial on the issue raised in the motion for

summary judgment, the mover is not required to negate all essential elements of

the adverse party' s claim, action, or defense. La. C. C. P. 9661)( 1). However, the

mover must demonstrate the absence of factual support for one or more elements

essential to the adverse party' s claim. La. C. C. P. art. 9661)( 1). The mover can

meet this burden by filing supporting documentary evidence with its motion for

summary judgment, consisting of pleadings, affidavits, depositions, answers to

interrogatories, certified medical records, stipulations, and admissions with the

motion for summary judgment. La. C. C. P. art. 966A( 4). The mover' s supporting

documentary evidence must be sufficient to prove the essential facts necessary to

carry the mover' s burden. Thus, in deciding a motion for summary judgment, it

7

must first be determined whether the supporting documents presented by the mover

are sufficient to resolve all material factual issues. If not, summary judgment must

be denied in favor of a trial on the merits. Jenkins v. Hernandez, 2019- 0874 ( La.

App. 1St Cir. 6/ 3/ 20) 2020 WL 2898123, So. 3d. ; Crockerham v.

Louisiana Medical Mutual Insurance Company, 2017- 1590 ( La. App. 1St Cir.

6/ 21/ 18), 255 So. 3d 604, 608.

Once a motion for summary judgment is made and properly supported, the

burden shifts to the non-moving party to produce factual support, through the use

of proper documentary evidence attached to its opposition, which establishes the

existence of a genuine issue of material fact or that the mover is not entitled to

judgment as a matter of law. La. C. C. P. art. 9661)( 1). If the non-moving party

fails to produce sufficient factual support in its opposition which proves the

existence of a genuine issue of material fact, La. C. C. P. art. 966D( 1) mandates the

granting of the motion for summary judgment. Babin v. Winn Dixie Louisiana,

Inc., 2000- 0078 ( La. 6/ 30/ 00), 764 So. 2d 37, 40; Jenkins, So. 3d at

Material facts are those that potentially insure or preclude recovery, affect

the litigant' s success, or determine the outcome of a legal dispute. Crockerham,

255 So. 3d at 607. Because it is the substantive law that determines materiality,

whether a particular fact in dispute is material can be seen only in light of the

substantive law applicable to the case. Georgia- Pacific Consumer Operations,

LLC, 255 So. 3d at 22.

Garney' s Motion for Summary Judgment

In its petition, Haynes sought to hold Garrey liable for thefts occurring on

its property from late December 2013 through January 2014. Haynes asserted that

it had an oral lease agreement with Garrey, which granted Garrey access to and

passage over its property in exchange for Gamey' s agreement to provide Haynes

N.

with fill dirt generated on the property. Haynes claimed that as a condition for the

use of its property, Garrey was instructed to secure the property, including

blocking an access road with concrete barriers owned by Haynes prior to leaving

the site each night, and that Garrey was informed that securing the access road was

important to prevent trespass and other illegal activity on the property. Haynes

theorized that the thieves used heavy equipment Garrey left on Haynes' property

to carry out the thefts, and urged that those thefts were made possible because

Garrey failed to secure its own equipment from use by the thieves and failed to

block the access road with the concrete barriers prior to leaving the site.

According to the allegations of Haynes' petition, Garrey owed Haynes three

duties: to secure the property, to follow Haynes' instructions on securing the

property; and to secure its own equipment located on Haynes' property. Haynes

alleged that Garvey breached all of these duties and its breach of those duties was a

cause -in -fact of Haynes' injuries resulting from the theft of its property.

Louisiana courts have adopted a duty -risk analysis in determining whether to

impose liability under general negligence principles as set forth in the Civil Code.

Crockerham, 255 So. 3d at 608. For liability to attach under a duty -risk analysis, a

plaintiff must prove five separate elements: ( 1) the defendant had a duty to

conform its conduct to a specific standard ( the duty element); ( 2) the defendant

failed to conform its conduct to the appropriate standard of care ( the breach

element); ( 3) the defendant' s substandard conduct was a cause in fact of the

plaintiff' s injuries ( the cause in fact element); ( 4) the defendant' s substandard

conduct was a legal cause of the plaintiff' s injuries ( the scope of liability or scope

of protection element; and ( 5) actual damages ( the damages element). Id.

In its motion for summary judgment, Garvey challenged the ability of

Haynes to prove that it had an oral lease with Garrey and also Haynes' ability to
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establish liability, particularly, that Garrey owed Haynes a duty to protect it from

the criminal acts of third parties. Garrey supported the motion with six exhibits,

including an aerial photograph of the area in question, the August 30, 2013

servitude agreement executed between COS and the Commission, two affidavits,

and excerpts of two depositions.

In his affidavit, Christopher Coston, Gamey' s Project Manager assigned to

the Project from October 2013 through January 2016, and who supervised

Gamey' s crews and subcontractors working on the Project, made the following

attestations: In October of 2013, Mr. Coston was scouting the area around the

Project site for a laydown yard and met with Mr. Haynes, who represented himself

as the owner of Blue Bayou Water Park and the property behind a Home Depot

located across Highland Road from the water park. Mr. Haynes agreed to allow

Garrey to use the water park' s overflow parking lot, an unpaved area located

behind the paved Home Depot parking lot, for a laydown yard and to park its

temporary office trailer during the Project. In return for using the property, Garvey

agreed to provide Mr. Haynes with the excess haul -off dirt and mud generated by

the project, although no specific amount of haul off dirt or drill mud was promised

by Garrey to occupy the property. Mr. Haynes instructed Mr. Coston where to

dump the fill dirt and where he wanted the temporary office placed. Mr. Coston

admitted there was an oral " handshake" agreement between himself, on behalf of

Garvey, and Mr. Haynes regarding Gamey' s use of the property, but denied that

the agreement was ever reduced to writing. Mr. Coston also denied entering into

any oral or written agreement on Gamey' s behalf with the four named plaintiffs in

this litigation.

Continuing, Mr. Coston made the following attestations: in connection with

the Project, Garrey leased certain heavy equipment including a John Deere 544

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Front Wheel Loader and a John Deere 323 Skid Steer, which were used by Garrey

personnel on the Project in early January 2014 to move and unload pipe fittings,

trench boxes, aggregate, and dirt along the right- of-way beside the railroad. These

machines were equipped with a " universal" key, meaning that anyone with a John

Deere key could operate the equipment. Garrey equipment operators kept a John

Deere heavy equipment key on their personal key chains and a separate John Deere

key was locked in the office trailer at all times. Gamey' s practice was to lock out

the John Deere equipment each day prior to departing the Project site.

Mr. Coston attested that Garrey and its subcontractors left the Project site on

Friday, December 20, 2013, for the Christmas and New Year' s holidays and

returned to Baton Rouge on January 2, 2014. Garvey personnel returned to work

on January 6, 2014, and worked Monday through Saturday for the next two weeks.

On January 16, 2014, Mr. Coston received a call from Mr. Haynes, who told him

that items stored in semi -trailers located on its property had been taken. According

to Mr. Coston, the majority of Haynes' semi -trailers were located in a field

adjacent to the railroad right of way, approximately one- half mile from the

laydown yard used by Garrey; some were located near the overflow parking lot,

and the majority of them were unsecured and were missing locks and rear doors.

Mr. Haynes informed Mr. Coston that he believed Gamey' s John Deere equipment

had been used by the alleged thieves to move the concrete barriers across Old

Perkins Road in order to remove the items from the semi -trailers. Mr. Coston

stated that at no time did Mr. Haynes, or anyone else, advise Garvey that there had

been prior thefts or other criminal activities involving the semi -trailers, the

contents, or the property.

In his affidavit, Michael Hall, Gamey' s senior superintendent who

personally supervised Gamey' s personnel working on the Project, added that

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beginning in December 2013, Garrey personnel were required to access the

railroad right-of-way north of Old Perkins Road in connection with the Project.

Garvey personnel accessed the area north of the railroad right-of-way utilizing a

dirt road that ran along Interstate 10 and cut across the property to the bore site.

Mr. Hall attested that the John Deere equipment was locked out by Garvey

personnel each day prior to departing the Project site. Mr. Hall' s remaining

attestations essentially echoed those of Mr. Coston.

Mr. Haynes testified that the water park was not open during the time the

thefts occurred and that the trailers were located on the back lot of the property.

He stated that he and Mr. Coston met to discuss Gamey' s access to his property,

during which they discussed using the overflow parking lot behind a paved parking

lot for a laydown yard, the location of Gamey' s temporary office, and keeping the

property secure. According to Mr. Haynes, he was to receive 6, 000 cubic yards of

dirt as payment, which was an estimate according to an engineer, and he and Mr.

Coston had a " handshake" agreement that was never reduced to writing. When

questioned whether, prior to the incident sued upon, there had ever been any

vandalism in the back lot or overflow parking area, Mr. Haynes responded that

once teenagers from the neighborhood tried to get into the trailers and threw items

around and someone stole electric wiring out of the trailers. He acknowledged that

some of the trailers on his property have locks on them, while others do not, and

even before the thefts, some of the trailers did not have doors. Mr. Haynes

indicated his belief that Garrey personnel were on site at the time of the thefts,

although he had been told they left the site for the Christmas and New Year' s

holidays.

Mr. Densmore, Blue Bayou Water Park' s manager, was asked about his

understanding of the agreement between Mr. Haynes and Garvey regarding

12

Gamey' s use of Haynes' property for the Project. He could not recall a specific

amount of dirt being agreed upon, and indicated that Garrey would provide

Haynes with whatever dirt was left that was not being used on the Project. Mr.

Densmore stated that Garrey was instructed to deposit the dirt near the Home

Depot property.

While discussing the area in back area of the property where the bleachers

were located, Mr. Densmore noted that this area was fenced and gated, with

concrete barriers blocking the back entrance to the park, in front of which there

was a gate across a shell road adjacent to the railroad track and a gate towards the

concrete barriers. He noted that there had been no prior vandalism in that part of

the property.

Mr. Densmore recalled having a conversation with Mr. Coston in early

December 2013, during which Mr. Coston asked to open up the blocks to access

the property. Mr. Densmore stated they spoke about keeping the Haynes' property

secured, which entailed putting the concrete blocks in every night. After the thefts,

it was discovered that the gates blocking the entrance to the back part of the

property had been removed. However, the gates securing the entrance to the

property from behind Home Depot were secure, closed, and locked the entire time.

In the Servitude Agreement executed between COS and the Commission,

COS granted the Commission a temporary construction servitude on certain

parcels of land during the sewer improvement project. Therein, COS agreed to

hold harmless and indemnify the Commission from and against any adverse

claims.

In opposition to the motion for summary judgment, Haynes offered

documentary evidence consisting of a copy of the petition, excerpts of the

deposition testimony of Mr. Haynes and Mr. Densmore, and Gamey' s responses to

13

interrogatories propounded by Haynes. In his deposition, Mr. Haynes testified that

all of its trailers were on the back lot of the property, and two sets of aluminum

bleachers with 5500 and 500 seats, respectively, were in storage on the property.

He stated that before Garrey arrived on his property, Mr. Densmore was

responsible for the gates and barriers on Haynes' properties and that Mr. Coston

assured him that Garrey would take care of this.

Mr. Densmore testified that the sewer line went through the gates on the

back of Haynes' property, which was fenced and gated. He stated that Garrey

requested to move the three concrete barriers to gain access to the property, each

which weighed approximately 8, 000 pounds, to get to the back of the property.

Mr. Desmond indicated that Haynes insisted that the road be closed back up every

night, and Garrey took care of moving the blocks to let its personnel in and out of

the property. He also noted that the gates also had to be taken down to give

Garvey access to the property.

Lastly, in Gamey' s responses to Haynes' interrogatories, Garrey revealed

that no statements had been taken in connection with Gamey' s use of the property,

the securing of Haynes' property, or securing the property and utility equipment

belonging to or found on Haynes' property. Garrey further denied that it entered

into any lease agreement as defined by the Louisiana Civil Code with Garrey.

Garrey argues that the trial court correctly held that even if there was an oral

lease between Haynes and Garrey, summary judgment is proper under Louisiana

law because Garvey owed no legal duty to protect Haynes against the criminal acts

of a third party. It submits that a narrow exception to this rule, which provides that

a business may owe a duty to protect others from criminal activity where a " high

degree of foreseeability" exists, such as where the business owner possesses actual

knowledge of an impending criminal act or there is an ongoing pattern of criminal

14

activity in the area does not apply to Garrey. Garrey insists that the trial court

correctly ruled that its personnel acted reasonably to protect Haynes' property, that

Garrey demonstrated that it did everything it agreed to do, and Haynes' baseless

supposition about what Garrey did or did not do failed to create a genuine issue of

material fact.

Haynes argues that regardless of whether there was a valid lease agreement,

Garrey owed it a duty to secure the property and protect against the thefts

occurring thereon because it was foreseeable and anticipated. It also maintains that

there are genuine issues of material facts as to whether Garrey assumed the duty to

protect Haynes' property from theft and was negligent in failing to secure the

property or by failing to secure its equipment, which enabled the theft. It insists

that Garrey knew that the property needed to be secured because of discussions

with Mr. Haynes and Mr. Densmore regarding the need for and the importance of

keeping the property secure. It posits that at a bare minimum, there are genuine

issues of material fact regarding whether Garvey owed Haynes that duty, thereby

precluding summary judgment in favor of Garvey. We agree.

The threshold issue in any duty -risk analysis is whether the defendant owed

a duty to the plaintiff. Bezet v. Original Library Joe' s, Inc., 2001- 1586 ( La.

App. 1St Cir. 11/ 8/ 02), 838 So. 2d 796, 800. Whether a duty is owed is a question

of law, which involves a determination of whether the duty the defendant allegedly

breached extends to the risk of harm suffered by the plaintiff. Id. A defendant' s

duty may arise out of a legal or conventional relationship with the plaintiff.

Peacock' s, Inc. v. Shreveport Alarm Co., 510 So.2d 387, 397 ( La. App. 2" d Cir.),

writs denied, 513 So.2d 826, 8275 828 ( La. 1987). The determination of whether a

duty exists as a result of the relationship between the parties must be made on a

case by case basis. Id.

15

Under Louisiana law, there is generally no legal duty to protect others from

the criminal activities of third persons. Posecai v. Wal-Mart Stores, Inc., 99-

1222 ( La. 11130199), 752 So. 2d 762, 766. However, there are exceptions to this

general rule recognized by the jurisprudence. For instance, in determining whether

business owner owes a duty to protect its customers from criminal activities

occurring on its premises, the Louisiana Supreme Court has adopted a balancing

test, directing courts to balance the foreseeability of the crime risk on the

defendant' s property and the gravity of the risk to determine the existence and

extent of the defendant' s duty. Posecai, 752 So. 2d at 768. The greater the

foreseeability and gravity of harm, the greater the duty of care that will be imposed

on the business. Id. Furthermore, a business may voluntarily assume a duty to

protect others against the risk of criminal activity, and when it does so, it must

perform that protection with reasonable care. In such a situation, liability may be

created by a negligent breach of that duty. Harris v. Pizza Hut of Louisiana,

Inc., 455 So. 2d 1364, 1371- 72 ( La. 1984).

At a trial on the merits, Haynes has the burden of establishing Garrey owed

it a duty of protection against criminal acts of theft of its property under the

circumstances of this case. See Posecai, 752 So. 2d at 768. On the motion for

summary judgment, Garvey attacked Haynes' ability to prove the existence of an

enforceable oral lease agreement and Haynes' ability to establish the duty element

of its negligence claim. As the mover, Garrey was required, by the use of proper

documentary evidence, to resolve all material issues of fact.

The essential elements of a lease are the thing, price, and consent of the

parties. La. Civ. Code art. 2676. Garrey concedes it had an oral, " handshake"

agreement with Haynes to access and occupy Haynes' property to perform its work

on the sewer project. However, it contends that the agreement did not constitute a

16

valid and enforceable lease because the oral agreement lacked a certain or

determinable price as required by law. The summary judgment evidence

demonstrates that Garvey promised to give Haynes fill dirt in exchange for access

to Haynes' property for its work on the Project. Garrey claims no specific amount

of fill dirt and mud generated by the Project was agreed upon; however, Haynes

claims that the Garvey agreed to provide Haynes with 6, 000 cubic yards of fill dirt,

an amount estimated by the Project engineer. In order to be entitled to summary

judgment on the issue of the existence of an enforceable lease agreement, Garrey

had to resolve the factual issue of whether there was an oral lease agreement

between the parties and if so, what were the terms of that agreement. The

disagreement between the parties over the existence of an enforceable lease

agreement and the terms thereof by its very nature creates genuine issues of fact,

precluding summary judgment thereon.

Further, even if Garrey was able to demonstrate at trial that it did not have

an enforceable lease agreement with Haynes, it is clear from the evidence on the

motion for summary judgment that there was an oral agreement between the

parties.
Particularly, the evidence demonstrates that Garrey, Mr. Haynes, and Mr.

Densmore discussed granting Garrey access to the back portion of Haynes'

property, which had been heavily secured with gates and concrete barriers to block

vehicular access to this area. There is also evidence showing that Garrey agreed to

secure the property by putting the three 8, 000 -pound concrete barriers back in

place each time it left the property.

The documentary evidence that was provided in favor of and in opposition

to the motion for summary judgment contains issues of fact as to whether the

request by Haynes for Garrey to secure its property was part of that oral agreement

between the parties. Neither Garvey nor the trial court were able to define the

17

terms of the oral agreement. If the security of Haynes' property was part of an oral

agreement between Garvey and Haynes, there would have been a heightened duty

upon Garvey to ensure that the property was secured against third -party thieves.

The existence of an oral agreement between Garrey and Haynes is

undisputed. The terms of that agreement may define the scope of Gamey' s duty in

this case. To be entitled to summary judgment on the liability issue, Garrey, as the

mover, was required to resolve all factual issues as to the terms of that oral

agreement. Garrey failed to do so.

Summary judgment is seldom appropriate, where, as here, an oral agreement

between the parties is the main issue and the evidence presented on the motion

reflects a disagreement between the parties as to the terms of that oral agreement.

See Bilbo for Basnaw v. Shelter Ins. Co., 96- 1476 ( La. App. 1St Cir. 7/ 30/ 97),

698 So. 2d 691, 694, writ denied, 97- 2198 ( La. 11/ 21/ 97), 703 So. 2d 1312 ( a

motion for summary judgment is rarely appropriate for disposing of a case

requiring judicial determination of subjective facts such as the parties' intent). In

this case, there are a myriad of factual issues to be resolved on Haynes' negligence

claim,
including whether Garrey had a conventional relationship with Haynes,

whether Garrey agreed to secure its own equipment as well as Haynes' property in

exchange for permission to access and occupy Haynes property, and if so, whether

that duty encompassed the risk that thieves would access the property and use

Gamey' s own equipment to carry out their criminal acts. In light of these

unresolved factual issues, we conclude that the trial court erred in granting

summary judgment in favor of Garrey on the duty element of Haynes' liability

claim. Moreover, the issue of Haynes' ability to prevail on the breach element of

its liability claim was not raised in Gamey' s motion for summary judgment, and

the trial court clearly erred in ruling, on the motion for summary judgment, that

Garrey acted reasonably in this case. For these reasons, we reverse the summary

judgment entered in favor of Garrey.

The Commission' s motion for summaa judgment

The Commission supported its motion for summary judgment with a copy of

Haynes' petition and the affidavit of G. Richard Speer, the director of the

Department of Environmental Services for the City/Parish. Mr. Speer attested that

the Commission is the owner of various sewer rehabilitation projects, including the

Project at issue, and that the City/Parish contracted with Quest Acquisitions, LLC

for servitude acquisitions. Mr. Speer reviewed all of the Project documents and

found only Servitude Agreements, dated August 30, 2013 and June 13, 2014,

executed between Haynes and the Commission or the City/Parish. He attested that

there was no agreement between Haynes, the City/Parish, or the Commission other

than these two agreements. He stated that he reviewed correspondence from

Geoffrey Wilson and Robert Cane, Jr. to Mr. Haynes regarding negotiations for

land access onto Mr. Haynes' property for the purpose of the Project, and that

neither of these men were employees of the City/Parish during the Project.

Included in the documentation referenced in and submitted with Mr. Speer' s

affidavit is the August 15, 2013 agreement executed between Garrey and the

City/Parish for the Project and the City/Parish' s bid documents for the Project. In

a letter dated October 30, 2012, Mr. Cane of Quest Acquisitions sent Mr. Haynes a

letter informing Mr. Haynes that the City/Parish had contracted with him to

perform land acquisitions in connection with the Project. Mr. Cane made an offer

to Mr. Haynes on behalf of the City/Parish for the purchase of two sewer

servitudes and two temporary construction servitudes. Mr. Haynes responded to

Mr. Cane' s letter in a letter dated April 29, 2013. In the letter, Mr. Haynes

indicated that the offer for the right-of-way and construction servitude across

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certain parcels of property he owned was acceptable. Mr. Haynes stated that other

matters must be addressed, including an additional sum cover the cost for

relocation of two semi -trailers in the construction servitude. Additionally, Mr.

Haynes stated that a 6 -foot commercial grade chain link fence with bobbed wire

and two double drive gates would be required to protect his moveable property

during the Project and demanded that " No trespassing" signs be placed every 40 -

feet along the fence.

By letter dated June 18, 2013, Mr. Geoffrey L. Wilson responded to Mr.

Haynes' April 29, 2013 letter and a subsequent on- site meeting on May 15, 2013.

The letter informed Mr. Haynes that the Right -of W
- ay Committee accepted his

request for additional funds to move and repair the semi -trailers in the construction

servitude. However, the letter stated that it was the opinion of the Committee that

no fence was necessary during the course of construction, that the contractor would

be required to maintain the level of fencing/security that was currently in place,

and that no further consideration would be given to Mr. Haynes' request.

In a Servitude Agreement dated October 30, 2013, COS granted sewer and

temporary construction servitudes to the Commission for a certain time period in

exchange for the sum of $26, 624. 00. In the agreement, COS agreed to hold the

Commission harmless and indemnify it against any adverse claims and to release

the Commission from liability, including any action for trespass, in the exercise of

the rights granted to the Commission in the agreement. By agreement dated June

13, 2014, COS granted the Commission another temporary construction servitude

in exchange for the sum of $6, 853. 00, containing identical provisions.

In further support of its motion, the Commission offered excerpts of the

deposition testimony of Mr. Haynes and Mr. Densmore. Regarding his request for

a 6 -foot commercial grade fence, Mr. Haynes envisioned that the fence would be

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erected between the right-of-way and the property on which his trailers were

located. Mr. Haynes acknowledged that the City/Parish denied his request for the

construction of this fence.

Mr. Densmore recalled discussing the topic of security with Mr. Wilson, to

whom a verbal request was made to erect a temporary fence to secure Haynes'

property during construction. Mr. Densmore acknowledged that the request had

been denied. He also admitted that he did not have any discussions with Garrey

regarding a fence.

In support of its opposition to the Commission' s motion for summary

judgment, Haynes offered a copy of its petition and the deposition testimony of

Mr. Haynes and Mr. Densmore. Mr. Haynes testified that he understood that his

request for the construction of a temporary fence by the City/Parish had been

denied. Mr. Haynes stated that the City/Parish had the opportunity to prevent the

thefts from happening and insisted that he told the City/Parish on numerous

occasions a theft would occur, referencing a couple of discussions with Mr. Wilson

and about 10 discussions with Mr. Cane. The excerpt of Mr. Densmore' s

testimony discusses missing crushed concrete that had been located on a pile five

to six hundred feet from his home.

Haynes argues that the Commission should be held liable for its own fault in

allowing the theft of Haynes' property under the Louisiana Civil Code articles

governing predial servitudes. Specifically, Haynes relies on La. Civ. Code art.

667, entitled " Limitations on use of property," which provides in pertinent part as

follows:

Although a proprietor may do with his estate whatever he pleases, still
he cannot make any work on it, which may deprive his neighbor of the
liberty of enjoying his own, or which may be the cause of the damage
to him. However, if the work he makes on his estate deprives his
neighbor of enjoyment or causes damage to him, he is answerable for

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damages only upon a showing that he knew or, in the exercise of
reasonable care, should have known that his works would cause
damage, that the damage could have been prevented by the exercise of
reasonable care, and that he failed to exercise such reasonable care.

Haynes argues that the Commission is liable to it for the theft of Haynes' property

because it failed to take security measures that would have prevented the thefts.

Haynes points to its requests during servitude negotiations with the Commission

for a number of security measures to protect its property, including that the

Commission employ a night watchman, post no trespassing signs, and install a

fence, all of which were refused by the Commission. It also points to Mr. Haynes'

testimony that the Commission was warned that Haynes' property would be stolen

if security measures were not taken. Haynes asserts that summary judgment

should be denied because there exists a genuine issue of material fact as to whether

Hayne' s communications and denied requests for security allow Haynes to recover

damages for the theft of its property under La. C. C. art. 667. We disagree.

Although La. C. C. art. 667 uses the term " proprietor," it has been interpreted

expansively by our courts to apply not only to a landowner, but to a person whose

rights derive from a landowner. Yokum v. 615 Bourbon Street, L.L.C, 2007-

1785 ( La. 2/ 26/ 08), 977 So. 2d 859, 874. Thus, it is possible that the Commission,

as the holder of a servitude from Haynes, could qualify as a" proprietor."

However, La. C. C. art. 667 establishes limitations on a proprietor' s use of property

in relation to his neighbors. The obligation of vicinage imposed by La. C. C. art.

667 is a legal servitude imposed on the owner of property or one deriving rights

from the owner of the property to refrain conducting activities thereon that cause

real damage to his neighbor. Atkins v. Six C Properties, L.L.C, 45, 682 ( La. App.

2°d Cir. 11/ 3/ 10), 55 So. 3d 120, 126. Haynes is not a " neighbor" to whom the

protections of La. C. C. art. 667 extend. Furthermore, we find nothing in the

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language of La. C. C. art. 667 that would support imposing a duty on the holder of a

servitude to protect the owner of the property subject to the servitude from third -

party criminal activity. Thus, we conclude that La C. C. art. 667 does not impose a

duty on the Commission to protect Haynes' property from the criminal acts of third

persons.

Further, there have been no facts elicited in connection with the motion that

could create genuine issues of material fact as to whether the Commission had a

legal or conventional duty to protect Haynes from thefts occurring on Haynes'

property. There is nothing in the language of either Servitude Agreement imposing

an obligation on the Commission to secure the property from thieves. Importantly,

the evidence on the motion established that when Mr. Haynes insisted that the

Commission undertake security measures to protect the moveable property located

on his property, the Commission refused. We also note that the Servitude

Agreements contain express waivers for damages caused by trespass.

The evidence on the motion for summary judgment demonstrates that

Haynes lacks evidence necessary to establish the existence of a legal or

conventional duty on the part of the Commission to secure its property from the

criminal acts of third persons. Accordingly, there is no genuine issue of material

fact as to the Commission' s liability for the thefts in this case, and the trial court

correctly ruled that the Commission is entitled to summary judgment dismissing it

from this litigation.

CONCLUSION

For the foregoing reasons, the summary judgment rendered in favor of the

East Baton Rouge Sewerage Commission is affirmed. The summary judgment

rendered in favor of Garney Companies, Inc. is hereby reversed. The case is

remanded to the trial court for proceedings consistent with this appeal. Costs of

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this appeal are assessed one- half to plaintiffs and one- half to Garrey Companies,

Inc.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

Ow