Frank Scurlock v. Kurt Heitmeier, Robert Heitmeier and Eustis Insurance, Inc.

FRANK SCURLOCK * NO. 2024-CA-0455

VERSUS * COURT OF APPEAL

KURT HEITMEIER, ROBERT * FOURTH CIRCUIT
HEITMEIER AND EUSTIS
INSURANCE, INC. * STATE OF LOUISIANA

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RLB
BELSOME, C. J. DISSENTS WITH REASONS.

I respectfully disagree with the majority because the actions of the New

Orleans Municipal Yacht Harbor Management Corporation (“MYHMC”) as

alleged are not discretionary in nature and therefore are not entitled to immunity

under La. R.S. 9:2798.1(B).

Frank Scurlock (“Scurlock”) and Kurt and Robert Heitmeier (“Heitmeiers”)

own neighboring residences located on property leased from MYHMC. They

share a foundation consisting of pilings that are driven into the bed of Lake

Pontchartrain. As a lessor, MYHMC owes an affirmative statutory duty to

Scurlock, pursuant to La. C. C. art. 2700:

The lessor warrants the lessee's peaceful possession of the leased thing
against any disturbance caused by a person who asserts ownership, or
right to possession of, or any other right in the thing.
In a residential lease, this warranty encompasses a disturbance caused
by a person who, with the lessor's consent, has access to the thing or
occupies adjacent property belonging to the lessor.

(emphasis added)

Scurlock’s opposition to this motion for summary judgment revealed two

questions of fact that may only be decided at trial. A factfinder must decide (1)

whether the structure built by Heitmeiers damaged the parties’ shared foundation;

and (2) whether MYHMC’s failure to prevent Heitmeiers from building the

structure breached a duty owed to Scurlock as his lessor.

The engineering report prepared by Contemporary Engineering Services,

Inc. and the accompanying affidavit by its president, Michael Cenac, contain

evidence that the extra weight added to the Heitmeiers’ renovation “compromised

the load carrying capacity of the existing shared wooden piles.” The report and the

affidavit were correctly admitted into evidence by the trial court.

MYHMC failed to stop the non-permitted portion of the Heitmeiers’

addition. It is a question of fact for trial to determine whether the duty to stop the

damage is discretionary or not. Jurisprudence consistently holds that a statutory

duty nullifies immunity for discretionary acts provided by La. R.S. 9:2798.1(B).

Our court applied the Supreme Court’s two-step analysis of a discretionary act as

the term is used in the statute in Johnson v. Orleans Par. Sch. Bd., 2006-1223 (La.

App. 4 Cir. 1/30/08), 975 So. 2d 698, 709–10:

The Louisiana Supreme Court established a two-step test for courts to
follow when determining whether the immunity applies. See Simeon v.
Doe, 618 So.2d 848, 852–53 (La.1993). A court must first determine
whether a statute, regulation, or policy requires the governmental
agency to follow a particular course of action. If there is such a
requirement, then there is no choice or discretion, and the immunity
does not apply. If, however, the governmental entity has a choice about
whether to undertake the activity, then the entity will be protected by
the immunity only if the choice is grounded in “social, economic, or
political policy.” Id. The application of this affirmative defense is “a
question of fact to be determined through a trial.” Lambert v. Riverboat
Gaming Enforcement Div., 96–1856 (La.App. 1 Cir. 12/29/97), 706
So.2d 172, 178. Once a defendant establishes its conduct involves a
matter of choice or discretion that is not the end of the inquiry. A court
must also consider whether the conduct in question occurred at the
“operational level”, or how the entity carried out its policy or decision.
The immunity statute does not protect governmental entities against
legal fault or negligent conduct at the “operational level”, but only
confers immunity for policy decisions, that is decisions based on social,
economic, or political concerns. Chaney v. National Railroad
Passenger Corp., 583 So.2d 926, 929 (La.App. 1 Cir.1991). As such,
once a discretionary decision is made, the government entity is not
protected from liability for conduct in carrying out the discretionary
decision.

(emphasis added)

We review a trial court’s summary judgment de novo. We are bound by the

Supreme Court’s and our own circuit’s rulings to reverse the summary judgment

granted by the trial court. Therefore, I dissent from the majority and would reverse

and remand the matter to the trial court.