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Yokum v. 615 Bourbon St., L.L.C. - 2007-1785 ( La. 02/26/08), 977 So. 2d 859


The term "proprietor" as used in La. Civ. Code Ann. art. 667, while commonly interpreted to refer to landowners, has been expansively interpreted by the courts to apply not only to a landowner, but also to a person whose rights derive from the owner. Certain limitations are imposed upon proprietors through article 667: although a landowner may use and enjoy his property as he sees fit, article 667 provides that he may not exercise his right in such a way as to cause damage to his neighbors. The proprietor is responsible not only for his own activity, but also for that carried on by his agents, contractors and representatives with his consent and permission. Article 667 is directly applicable to a proprietor landowner who may also be a lessor of its property, as the act of lease by the landowner is a right which is derived from ownership of the property. If the work or activities he makes on it does cause damage to his neighbor, the proprietor landowner is answerable for 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.


Plaintiff Peterson M. Yokum was the owner of and resided at the premises located at 723 Toulouse Street in the French Quarter in New Orleans, Louisiana, with his wife, plaintiff Polly Elizabeth Anderson. The property was zoned as "Vieux Carre Commercial District-2 Mixed Residential" ("VCC-2"). On an adjacent street, a property located at 615-617 Bourbon Street was leased to O'Reilly Properties, L.L.C. (O'Reilly), who began operating a bar called The Rock at the property. Plaintiffs filed a petition for damages and declaratory and injunctive relief against the owner of the property as well as O'Reilly for violation of La. Civ. Code Ann. arts. 667 and 669, for nuisance. The claim that they were being subjected to loud and ongoing live entertainment conducted at the bar known as The Rock, which prevented the proper quiet enjoyment of their home. The lessor filed a motion for summary Judgment asserting that the alleged violations and the creation of a nuisance arose out of the operation of a valid business. The trial court granted the lessor's motion for summary judgment. The Court of Appeal, Fourth Circuit, Parish of Orleans, Louisiana, affirmed the trial court. The court of appeals ruled that the lessor was not liable to plaintiffs for the alleged excessive noise associated with the loud music played by the bar that was operated by its lessee. The plaintiffs timely filed a writ of certiorari.


Was it proper to grant the motion for summary judgment?




The Supreme Court of Louisiana found that the alleged excessive noise emanating from the lessor's leased premises fell within the concept of "work" as contemplated by La. Civ. Code Ann. art. 667, in that it was an activity that could have been harmful to neighboring proprietors. A proprietor could have been responsible for those constructions or activities on its premises that could cause damage to its neighbors, whether the work or activities were performed by the proprietor or by one who maintained rights that derived from the ownership of the land, such as a lessee. The lessor had not demonstrated how the fact that it did not actually operate the bar on its premises negated its responsibilities as a "proprietor." Furthermore, the lessor had not established an absence of factual support for any element essential to plaintiffs' claim, namely, the requirements concerning its alleged knowledge of the loud noise, or any steps it may have taken to reasonably prevent the noise. Therefore, summary judgment was not appropriate. As such, the court of appeal's decision affirming summary judgment was reversed and the case was remanded to the trial court for further proceedings.

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