Waking the Neighbors: Determining a Landowner's Liability for Rowdy Tenants Under Louisiana Law

AuthorGina Palermo
Pages1339-1366

The author would like to thank Professors John Church and Greg Smith for their oversight and guidance during the writing process.

Page 1339

I Introduction

It is a typical night on Bourbon Street. Beer, beads, and bedlam fill the French Quarter. Miles away from the action, the owner of one Bourbon Street establishment sleeps quietly in his home. Little does he know that he may be incurring liability for the raucous behavior of his tenant who runs a rowdy French Quarter bar.

In Yokum v. 615 Bourbon Street, a unanimous Louisiana Supreme Court determined that a landowner-lessor may be liable for the damage caused by his tenant-lessee under Louisiana Civil Code article 667. 1 The tenant in Yokum managed a bar on Bourbon Street, and his neighbors filed suit against the landowner for damages and injunctive relief for the alleged excessive noise emanating from the property. 2 The court held that landowners can be held liable for damage caused to their neighbors when the landowners' tenant is responsible for the nuisance-creating activity, provided the owner knew or should have known that the activity would cause harm. 3 This decision noticeably shifted the law in Louisiana and could significantly impact landowner-tenant relationships and the future of lease agreements in Louisiana. 4

In addition to addressing issues of liability surrounding the landowner-tenant relationship, the Yokum court also tackled a confused area of Louisiana law regarding liability for nuisances. In the past, some Louisiana courts have used common law nuisance principles to impose liability on defendants and justify injunctions against certain conduct. 5 Other courts have analyzed such cases under a purely property law-oriented approach using the articles Page 1340 667-669, which govern predial servitudes, 6 while still others have analogized these articles to, or used them in combination with, the tort principles of article 2315. 7 In 1996, the Louisiana Legislature dramatically changed Louisiana tort law, in part by amending several articles to eliminate strict liability and create a more fault- based system. 8 The legislature revised article 667 as part of this reform, instilling a negligence standard for liability of a landowner into article 667. 9

If the Louisiana Supreme Court is to maintain Louisiana's fault-based approach consistent with the 1996 tort reform, then the interpretation of article 667 in Yokum was overbroad; instead, this Comment argues that article 667 should only apply to the owner of the land if the owner is actually responsible for the existence of the nuisance-causing activity. To reach this end, Part II analyzes both United States common law and Louisiana interpretations of nuisance and their approaches to landowner-tenant liability when such nuisances occur on leased premises. Part III introduces the Yokum case, which is Louisiana's most recent interpretation of article 667 with respect to nuisance. Part III also highlights the potential problems with the Yokum decision and addresses how courts should approach the issue in the future. In doing so, Part III analyzes the Louisiana Civil Code, Louisiana jurisprudence, and doctrine, while comparing Louisiana's approach to that of the common law.

II Background: What Is A Nuisance And Who Should Be Liable For It?

Tort legal scholars Prosser and Keeton describe nuisance as the following:

There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word "nuisance." It has meant all things to all people, and has been applied indiscriminately to everything from an alarming Page 1341 advertisement to a cockroach baked in a pie. There is a general agreement that it is incapable of any exact or comprehensive definition. 10

Because Louisiana has borrowed from the common law's interpretation of nuisance, it is appropriate to examine the concept's development in that system.

A United States Common Law Approach to Nuisance

Two very different lines of interpretation regarding what constitutes a nuisance explain the confusion that Professors Prosser and Keeton describe. One line, known as private nuisance, narrowly defines "nuisance" as the invasion of interests in the use or enjoyment of land. 11 The other line, known as public nuisance, defines the term broadly, extending to virtually any form of annoyance or inconvenience interfering with common public rights. 12 This Comment focuses on private nuisances occurring on leased premises.

Common law courts 13 have been fairly uniform in defining "private nuisance" as an unreasonable activity or condition on the defendant's land that substantially or unreasonably interferes with the plaintiff's use and enjoyment of his land. 14 The interference can be (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligence, reckless conduct, or abnormally dangerous conditions or activities. 15 Although "nuisance," in its broadest sense, is defined as the "equivalence to a dangerous condition which may cause harm, inconvenience, or damage to another," 16 typical Page 1342 private nuisance agents are noise, dust, smoke, odors, other airborne or waterborne contaminants, vermin, insects, and vibrations. 17

Most nuisance cases involve an attempt by a plaintiff to obtain an injunction or damages for harm done by a neighboring landowner. 18 Sometimes, however, like in Yokum, the person creating the nuisance is not the landowner, but instead is a tenant of the property. When a tenant's actions cause harm to a third party, most American jurisdictions adhere to the "traditional view" of landowner-tenant liability. 19 This view holds that the landowner is generally not liable, with some exceptions. 20 Under this view, the owner is under no obligation to look after the leased premises or keep it in repair; nor is he responsible for persons injured on the premises or for conditions that develop during the tenant's occupancy. 21 Similarly, he is not responsible for the tenant's activities upon the land after the transfer, even when those activities create a nuisance. 22

This traditional view flows in large part from two fundamental principles of landowner-tenant law. The first is the doctrine of caveat emptor. 23 Under this rule, the buyer (or in this case the tenant) purchases at his peril 24 and is subject to any defects or encumbrances on the land that he could have obtained knowledge of had he made a reasonable investigation. 25 A second fundamental principle of property law establishes that the lease of land is equivalent to a sale of the premises for the term of the lease. 26 The Page 1343 tenant acquires an estate in the land for the duration of the lease and becomes the possessor, subject to all responsibilities of one in possession for what occurs on the land. 27 The owner surrenders both possession and control of the land and retains only a reversionary interest, such that the owner has no right to enter without permission of the tenant. 28 As a result, under the traditional view, it is a substantial burden to impose liability on a landowner when he had no right of entry or power to abate the nuisance. 29

There are multiple exceptions to the traditional rule under which the landowner may be found liable for injuries caused by conditions on the leased premises. 30 The landowner is liable to the tenant and others for personal injuries that occur in "common areas" when the owner fails to use reasonable care in maintaining those areas. 31 A landowner may also be liable if there is a concealed or "latent" defect that exists on the property when the lease begins and that defect is known or reasonably should be known to the landowner. 32 An owner can also be held liable to third persons in some jurisdictions for personal injuries that are caused by conditions the landowner promised but failed to repair or was negligent in repairing. 33 Finally, a landowner who leases premises that are to be used for admission to the public may be Page 1344 liable to members of the public who are injured by a defective condition that exists at the time of leasing. 34

Some common law jurisdictions take a different approach and reject the traditional view in order to find liability based upon the ordinary negligence doctrine. 35 For example, in 1973, the Supreme Court of New Hampshire declared in Sargent v. Ross that a landowner is liable to the tenant or others for injuries on or about the premises if the owner fails to exercise the general tort duty of reasonable care in all circumstances. 36 In Sargent, a small child who was the guest of a tenant died when she fell off of an outside stairway leading to the tenant's apartment. 37 The child's parents claimed that the landowner was negligent in having a stairway that was too steep. 38 In holding for the parents, the court announced that legal liability should henceforth be based upon the doctrine of ordinary negligence, not the traditional rule with the traditional exceptions. 39 The Sargent court said that questions of control, latent defects, and common areas are only factors to be considered. 40 Although the majority of states still adheres to the traditional doctrine, the Sargent opinion has attracted a following in several jurisdictions. 41

A shift in public policy has for some years made landowner- tenant law more favorable to residential tenants and less favorable to landowners, which...

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