B. Catalon v. State Farm Fire & Casualty Co.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-674

B. CATALON

VERSUS

STATE FARM FIRE AND CASUALTY
COMPANY, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NUMBER C-20183306, DIVISION D
HONORABLE ROYALE L. COLBERT, DISTRICT JUDGE

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SHARON DARVILLE WILSON
JUDGE

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Court composed of Elizabeth A. Pickett, Sharon Darville Wilson, and Charles G.
Fitzgerald, Judges.

AFFIRMED.

Tracy P. Curtis
The Glenn Armentor Law Corporation
300 Stewart Street
Lafayette, Louisiana 70501
(337) 233-1471
Counsel for Plaintiff/Appellant:
Brandi Catalon

Joseph T. Puhekker
Leah B. Guilbeau & Associates
Caffery Plaza, Suite 100
4023 Ambassador Caffery Parkway
Lafayette, Louisiana 70503
(337) 988-7240
Counsel for Defendants/Appellees:
State Farm Fire and Casualty Company and
James A. Caillier

WILSON, Judge.

Plaintiff, Brandi Catalon (Catalon), appeals the dismissal of her claim for

damages on the trial court’s grant of summary judgment in favor of Defendants,

James A. Caillier (Caillier), and his insurer, State Farm Fire and Casualty

Company (State Farm). Catalon contends that there are genuine issues of material

fact concerning the condition of the tree at the time it fell on her car and that the

affidavit of Defendants’ expert arborist contains unfounded opinions and is based

on assumptions that are contradicted. For the reasons that follow, we affirm the

trial court’s ruling.

I.

ISSUES

We must decide:

1. Whether there are genuine issues regarding the tree’s condition at the
time of the loss, not its condition years earlier, and whether resolution of
those issues depends on credibility determinations.

2. Whether the trial court erred by relying on an affidavit that: (a) allegedly
contains unfounded opinions that are contradicted by the affidavit of an
observer who viewed the scene within months of the accident; and (b) is
allegedly based on assumptions that are contradicted by Plaintiff’s
testimony.

II.

FACTS AND PROCEDURAL HISTORY

On June 4, 2017, Catalon was driving her vehicle northbound on Walter

Drive in Carencro, Louisiana, at approximately 5:45 p.m., when a tree fell on her

vehicle and came through the front windshield. The tree was on land owned by

Caillier. The property is an unimproved parcel of that land that has no permanent

structures, and the boundary of the property is separated from Walter Drive by a

right-of-way in favor of the City of Carencro (Carencro).

Catalon filed suit against Caillier and State Farm; Union Pacific; Carencro;

and Lionel Broussard and/or Noo Noo & Therese, LLC. Carencro was dismissed

from the lawsuit due to Plaintiff’s failure to have it timely served. Catalon later

amended her suit to include loss of consortium damages on behalf of her three

children, two of whom were minors.

Caillier and State Farm filed a motion for summary judgment alleging that

Catalon would be unable to meet her burden of proving that Caillier was negligent

in any way. The trial court granted the motion for summary judgment and

dismissed Catalon’s claims against Caillier and State Farm. This appeal followed.

III.

STANDARD OF REVIEW

“Appellate courts review summary judgments de novo using the same

criteria that govern the trial court’s consideration of whether summary judgment is

appropriate, i.e., whether there is any genuine issue of material fact and whether

the movant is entitled to judgment as a matter of law.” White v. Louisiana Dep’t of

Transp. & Dev., 18-741, p. 4 (La.App. 3 Cir. 3/13/19), 269 So.3d 1031, 1034, writ

denied, 19-572 (La. 5/28/19), 273 So.3d 311.

IV.

LAW AND DISCUSSION

On motion for summary judgment, the burden of proof remains
with the movant. However, if the moving party will not bear the
burden of proof on the issue at trial and points out that there is an
absence of factual support for one or more elements essential to the
adverse party’s claim, action, or defense, then the non-moving party
must produce factual support sufficient to establish that he will be
able to satisfy his evidentiary burden of proof at trial. If the opponent
of the motion fails to do so, there is no genuine issue of material fact
and summary judgment will be granted.

When a motion for summary judgment is made and supported
as provided in La. C.C.P. art. 967, an adverse party may not rest upon
the mere allegations or denials of his pleadings, but his response, by

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affidavits or as otherwise provided in La. C.C.P. art. 967, must set
forth specific facts showing that there is a genuine issue for trial. If he
does not so respond, summary judgment, if appropriate, shall be
rendered against him. Whether a particular fact in dispute is material
can be seen only in light of the substantive law applicable to the case.

Larson v. XYZ Ins. Co., 16-745, p. 7 (La. 5/3/17), 226 So.3d 412, 416–417

(citations omitted). “[S]ummary judgment will be granted only if the issues of fact

presented ‘are so patently insubstantial as to present no genuine issues’ of material

fact; a mere allegation without substance will not preclude the rendering of

summary judgment.” Davis v. Fortis Benefits Ins. Co., 08-1080, p. 8 (La.App. 3

Cir. 3/4/09), 6 So.3d 929, 934 [quoting Metro. Bank of Jefferson v. Summers, 257

So.2d 179, 181 (La.App. 4 Cir.), writ refused, 261 La. 462, 259 So.2d 914 (1972)].

In order to recover damages in this case, Catalon must prove that: (1)

Caillier owned the tree or that he had garde of it; (2) the tree was defective and

presented an unreasonable risk of harm; (3) Caillier knew or should have known

that the tree was defective; and (4) the defect caused Catalon’s harm. La.Civ.Code

art. 2317.1. See also, Jones v. Town of Gueydan, 21-11 (La.App. 3 Cir. 6/16/21),

323 So.3d 451, writ denied, 21-1038 (La. 11/23/21), 328 So.3d 71.

Catalon asserted that Caillier knew or should have known that the tree that

fell on Catalon’s car was defective. Catalon asserted, in the alternative, that if

Caillier proved that he did not have garde of the tree, then the other named

defendants knew or should have known that the subject tree was defective. As

noted above, however, Carencro is no longer a defendant in this case. Defendants

characterize this incident as an unfortunate act of God. Based on the affidavits of

Caillier and their expert arborist, Caillier and State Farm contend that they are

entitled to a summary judgment because Catalon will be unable to prove that

Caillier knew or should have known that the tree in question was defective.

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In his affidavit, Caillier testified that he had owned the property on Walter

Drive in Carencro since 2008 and visited it on a weekly basis since that time.

Caillier stated that when he visited the property, he did routine maintenance, such

as mowing the grass, weed-eating, and trimming the vegetation or removing dead

vegetation. According to Caillier, Carencro took care of and maintained the trees

located along its right of way. The maintenance by Carencro included removing

trees that showed signs of disease. Caillier further stated that none of the trees

along the right of way, including the tree that fell on Catalon’s car, appeared rotten

or defective because they were all growing and had green leaves.

In further support of the motion for summary judgment, Caillier presented

the affidavit of James A. Foret, Jr. (Foret). Foret is a state licensed arborist who

has over forty years of experience. He has a master’s degree in horticulture. Foret

reviewed photographs1 of the tree and the remaining stump, weather data from the

date of the accident, and Caillier’s affidavit. Foret opined that the tree in question

had a damaged root system caused by the clearing of the drainage ditch area on the

property over which Carencro had a right-of-way. According to Foret, the

damaged root system would make the tree susceptible to rot, but the damage would

be to the interior of the tree and not visible to a lay person. Foret noted that

weather data showed that there were wind gusts of twenty-four to twenty-five

miles per hour on the date of the accident. Further, Foret stated that if the interior

of the tree was damaged, the tree would be susceptible to failure due to wind and

rain. Foret concluded that in this case, Caillier “would have observed a growing

green tree with little indication of internal decay.” We do not find that the trial

court erred in considering Caillier’s and Foret’s affidavits.
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Foret reviewed a Google Earth street view image of the property dated May 2013, a
photograph of the tree taken on the date of accident after it had fallen on Catalon’s vehicle,
several photographs of the base of the tree in question, and photographs of other trees in the
vicinity of the tree in question.
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Catalon points out that Foret did not visit the site and relied only on

photographs in reaching his conclusion. However, the photographs of the tree on

Catalon’s car show that the fallen tree had green leaves, and Catalon herself

admitted in her deposition that the part of the tree that fell on her car did have

green leaves.

In opposition to the motion for summary judgment, Catalon introduced the

affidavit of a private investigator, Troy Rue (Rue). There is no evidence that Rue

has any education, background, or specialized training regarding trees and/or tree

health. Rue visited the property on Walter Drive on September 12, 2017. Rue

took several pictures of trees and stumps on the property. Rue stated in his

affidavit: “I saw a lot of what appeared to me to be unhealthy trees all along the

tree line and within thirty yards of the Catalon stump.” Rue further stated that it

was clear to him that many of the trees posed a danger to anyone passing by them.

Rue concluded that: “My impression is that any person who observed what I

observed on September 12, 2017[,] would also conclude that several trees required

removal, especially since they were of sufficient size to fall into all or part of

Walter Drive.”

Catalon admits in her deposition that she had no evidence or other

information regarding whether Caillier knew or should have known that the tree in

question was defective. This is an element that she must prove at trial in order to

recover damages from Caillier. La.Civ.Code art. 2317.1. Foret’s testimony was

that the tree would appear green and healthy to a layperson. Caillier also testified

that he visited the property weekly and did not notice that the tree in question had

any sign of disease or rot. This point made by Foret and Caillier is not

contradicted by the private detective hired by Catalon. Neither Catalon nor Rue

had any information regarding the condition of the tree at the time of the accident.
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Except for the Google Earth street view image reviewed by Foret, no pictures of

the tree taken prior to the date of the accident were admitted into evidence.

Catalon testified in her deposition that the day of the accident was the first time she

had driven on Walter Road. Therefore, the testimony that the tree that fell on

Catalon’s car had green leaves is undisputed.

We find that Caillier and State Farm’s motion for summary judgment was

made and supported as provided in La.Code Civ.P. art. 967. Foret’s affidavit

indicated that there was no evidence that Caillier knew or should have known that

the tree that fell on Catalon’s car was defective. The burden of proof then shifted

to Catalon to show that there were genuine issues of material fact for trial.

La.Code Civ.P. art. 967. Rue, a private investigator, based his opinions as to the

true condition of the tree in question at the time of the accident solely on

speculation. Accordingly, the conclusory allegations and unsupported speculations

by Rue are not sufficient to create a genuine issue of material fact. Fountain v.

Wal-Mart Stores, Inc., 19-669 (La.App. 3 Cir. 3/18/20), 297 So.3d 100. Thus, we

find that the trial court did not err in granting summary judgment in favor of

Caillier and his insurer.

V.

CONCLUSION

The trial court’s ruling granting summary judgment in favor of James A.

Caillier and State Farm Fire and Casualty Company and dismissing all claims of

Brandi Catalon against them is hereby affirmed. All costs of this appeal are

assessed to the Plaintiff/Appellant, Brandi Catalon.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3 Uniform Rules, Courts of Appeal.

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