Barrett v. TL James & Co.

671 So. 2d 1186, 1996 WL 148459
CourtLouisiana Court of Appeal
DecidedApril 3, 1996
Docket28,170-CA
StatusPublished
Cited by16 cases

This text of 671 So. 2d 1186 (Barrett v. TL James & Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barrett v. TL James & Co., 671 So. 2d 1186, 1996 WL 148459 (La. Ct. App. 1996).

Opinion

671 So.2d 1186 (1996)

Johnnie Carolyn Maza BARRETT, et al., Plaintiff-Appellant,
v.
T.L. JAMES & COMPANY, Defendant-Appellee.

No. 28,170-CA.

Court of Appeal of Louisiana, Second Circuit.

April 3, 1996.
Writ Denied June 7, 1996.

*1188 Bobby L. Culpepper, Jonesboro, for Appellant.

William S. Carter, Jr., Ruston, for Appellee T.L. James & Co.

Patrick J. Hanna, Lafayette, for Appellee Con-Trux Construction.

William G. Kelly, Jr., Monroe, for Appellee Boyte Enterprises, Inc.

Before MARVIN, HIGHTOWER and GASKINS, JJ.

GASKINS, Judge.

The plaintiffs appeal from a trial court judgment denying their claim that the defendant construction company created a nuisance. The plaintiffs allege that the construction company's concrete recycling operation, conducted several hundred feet from the plaintiffs' residences, was extremely noisy and created a large amount of dust that damaged their homes. The plaintiffs also allege that they suffered respiratory illnesses as a result of the concrete dust. The trial court found that the plaintiffs failed to prove that the construction company's activities constituted a nuisance and denied their claims for damages. We affirm the trial court judgment.

FACTS

The plaintiffs are Johnnie Carolyn Maza Barrett[1] her daughter and son-in-law, Tammie and Richard Burton and Mrs. Barrett's mother, Lois Maza. Mrs. Barrett, now Mrs. Clark, the Burtons and Mrs. Maza each live in mobile homes located in close proximity to each other on Lincoln Parish Road 46. This is a dirt road approximately one-fourth of a mile from 1-20. The plaintiffs are the only *1189 residents on this portion of the parish road. Their closest neighbors are approximately one mile away across 1-20.

The defendant is the T.L. James Construction Company (T.L. James). Third party defendants are Con-Trux Construction Company, Inc., a business which operated a concrete crusher and Boyte Enterprises, Inc., which provided trucks for T.L. James. In early 1991, T.L. James began resurfacing work on a seven mile stretch of 1-20, near the plaintiffs' homes. Work was completed in October, 1992. The project involved removing the existing concrete on the interstate, recycling it and reconstructing the highway. In March, 1991, T.L. James leased several acres of land directly across the parish road from the plaintiffs. The property was used to set up a concrete recycling operation and a concrete plant. This location is near an interchange on the interstate, providing accessibility from the east and west bound lanes of the highway. The location was also about midway in the seven mile area being reconstructed by T.L. James.

The property was sparsely covered with trees. Some trees were cleared from the property and dirt and bulldozers were brought in to level the area. A barrier of approximately three acres of trees was left on the property. Behind this tree barrier, T.L. James set up its concrete plant. The plant was approximately nine hundred feet from the plaintiffs' residences. In 1991, the defendant began producing concrete at this plant for use in the highway project. The plant was used to produce concrete from September 19, 1991 until November 22, 1991 and from June 5, 1992 until August 4, 1992. Access to the concrete production plant was gained from a separate entrance to the site. Trucks hauling concrete mix to 1-20 did not usually pass the plaintiffs' residences.

In early 1992, trucks operated by Boyte Enterprises began hauling concrete removed from 1-20 to the site where it was stockpiled. These trucks used Parish Road 46, in front of the plaintiffs' residence to access the stock pile site. In March, 1992, Con-Trux brought in a portable concrete crusher to recycle these concrete pieces. The concrete crusher was situated about two hundred feet from the plaintiffs' residences. The machine was placed behind a pile of concrete pieces in order to lessen the noise from the operation. The plaintiffs objected to the dust and noise caused by the concrete recycling operation. They claimed that the noise was disruptive and that the dust from the recycling operation and the trucks hauling concrete pieces into the site damaged the carpet and curtains in their houses. The plaintiffs also claimed that the dust aggravated their respiratory problems. The concrete recycling operation ended in October, 1992.

On July 7, 1992, the plaintiffs filed suit against T.L. James Company, alleging that the construction company's activities created a nuisance and seeking damages. T.L. James filed third party demands against Con-Trux and Boyte Enterprises. The matter was heard in the trial court in November, 1994.

On March 29, 1995, the trial court issued reasons for judgment. T.L. James released its third party claims against Con-Trux and Boyte Enterprises. The trial court found in favor of T.L. James Company and rejected the claims of the plaintiffs. The court found that, while the activities of the defendant may have caused some inconvenience to the plaintiffs, it did not constitute a nuisance and the plaintiffs were not entitled to damages.

The trial court noted that the plaintiffs were seeking damages for personal injury, namely upper respiratory problems caused by dust. They also sought property damages caused by the accumulation of dust in their homes. Additionally, Mrs. Clark sought rental reimbursement for apartment rent when she left her home and moved to Monroe for several months. The trial court found that plaintiffs failed to produce any medical testimony to corroborate their claims of respiratory problems. According to the court, the medical experts failed to confirm any causal connection between any illness of the plaintiffs or their family members and the construction project. Regarding property damage, the court cited testimony showing that Mrs. Clark's carpet was of sufficient age that it was in need of replacement. The court also found that there was no indication that the dust could not have been removed *1190 through regular vacuuming and cleaning. The court found that there was no proof or testimony of any other damage to the mobile homes or the automobiles. The trial court was also unconvinced that Mrs. Clark was entitled to rental reimbursement. The court found that she moved to an apartment in West Monroe to live with Mr. Clark, whom she later married, and that she would have made this move regardless of the problems with the construction project.

The trial court found that the plaintiffs were inconvenienced by the construction project, but that the project was necessary and extremely important to the welfare of the community. The court found that the inconvenience was not unusual or extraordinary, considering the length of the project and the measures taken to minimize the problems. On May 12, 1995, the trial court filed its judgment in favor of T.L. James Company and the third party defendants, rejecting the claims of the plaintiffs. The plaintiffs appealed.

NUISANCE

The plaintiffs argue that the trial court erred in failing to find that the actions of T.L. James constituted a nuisance. The plaintiffs contend that the evidence shows that they had to endure excessive dust and noise from March 1991 until October, 1992. They assert that the trial court was manifestly erroneous in failing to find that the defendant's actions constituted a nuisance and that the plaintiffs are entitled to property and personal injury damages as well as recovery for mental anguish. This argument is without merit.

Legal Principles

La.C.C. Art. 667 provides:

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Bluebook (online)
671 So. 2d 1186, 1996 WL 148459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barrett-v-tl-james-co-lactapp-1996.