TROY GOINGS ET AL v. WESTERN WORLD INSURANCE COMPANY ET AL (2026)

Plaintiffs, Troy and Sheri Goings, appeal a judgment granting summary judgment in favor of Manchac Place Homeowners Association, Inc. and Western World Insurance Co., dismissing plaintiffs’ suit with prejudice. Plaintiffs also appeal a judgment denying their motion for new trial. For the following reasons, both judgments are affirmed in part and reversed in part, and this matter is remanded to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

Plaintiffs purchased a home in Manchac Place Subdivision in September 2007. Water entered plaintiffs’ home on May 17, 2021, when heavy rain inundated the subdivision and overflowed a retention pond near their home. As a result, plaintiffs filed suit against their homeowners’ association, Manchac Place Homeowners Association, Inc., and its insurer, Western World Insurance Company (collectively, “Manchac Place”) in May 2022, seeking damages related to the water intrusion.

In their petition, plaintiffs contended that the retention pond was constructed with a drain box and concrete culvert, which allowed water to flow from the subdivision into a drainage tributary. They alleged that, prior to the flood, Manchac Place installed a barrier or obstruction to partially block the drain box in the retention pond to maintain a higher water level for aesthetic purposes. Plaintiffs contended this obstruction restricted the flow of water out of the retention pond, causing rising water to enter their home. The petition further alleged that Manchac Place failed to remove debris and, thus, failed to properly maintain the retention pond. The petition alleged that, as a result of Manchac Place's negligent actions, plaintiffs “suffered injuries including to themselves and to their property[.]” They sought general and special damages, including damages for physical pain and suffering.

After answering the petition in September 2022, Manchac Place filed a motion for summary in November 2024, seeking to dismiss plaintiffs’ suit. To support its motion, Manchac Place relied on plaintiffs’ petition and a certified copy of the subdivision's governing “Declaration of Covenants and Restrictions” applicable to all lot owners in the subdivision. See La. C.C.P. art. 966(A)(4)(a). The Declaration, recorded in the public records, states that the property within the subdivision is subject to the obligations, covenants, restrictions, servitudes, and conditions set forth therein and are established as a charge on each lot and incidental to ownership. Plaintiffs do not dispute they are bound by the Declaration as owners of property within the subdivision.²

Subsection 5.5 of the Declaration pertinently states that each owner, by acceptance of title to a lot, waives “all claims” against and releases Manchac Place “from and against any and all liability of any nature” arising out of or on account of the rise and fall of the water level of any lake in the common properties, including the flow of water onto and out of any such lake, which could result in or cause damages by flooding or otherwise, to any improvements or personal property on any lot. Manchac Place asserted that subsection 5.5 unequivocally and directly applies to the allegations set forth by plaintiffs. Therefore, Manchac Place contended plaintiffs cannot maintain their cause of action for flood related damages.

Plaintiffs opposed the motion for summary judgment, relying on excerpts from Mr. Goings's deposition wherein he discussed the events leading up to and after the flood. Plaintiffs asserted the waiver of claims in subsection 5.5 violates La. C.C. art. 2004 because it purports to waive all claims in advance. Louisiana Civil Code art. 2004 states,

Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party.

Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.

Next, plaintiffs argued their petition alleged flooding from a retention pond, but subsection 5.5 refers to a lake. It does not refer to retention ponds; thus, plaintiffs maintained a disputed issue of fact exists as to whether subsection 5.5 applies to their claims.

At the conclusion of the hearing on the motion, the trial court granted Manchac Place's motion for summary judgment, finding no genuine issue of material fact remains. A written judgment granting the motion was signed on January 29, 2025, dismissing plaintiffs’ suit, with prejudice. Plaintiffs timely filed a motion for new trial, advancing the same arguments asserted in opposition to the motion for summary judgment. After a hearing, the motion was denied in a judgment signed on April 30, 2025.

Plaintiffs then filed this appeal, asserting the trial court erred by granting Manchac Place's motion for summary judgment and by denying their motion for new trial.³ Specifically, plaintiffs reassert the argument that Manchac Place failed to present evidence that the body of water that overflowed was a lake within the meaning of subsection 5.5, because the petition refers only to a retention pond. They also contend the waiver of liability contained in subsection 5.5 is too broad and cannot be used to dismiss their suit, which contains allegations of physical injury. See La. C.C. art. 2004. In their reply brief, plaintiffs assert that “one can infer from a review of the petition” that, if proven, Manchac Place's actions rise to the level of intentional or gross fault. However, they cite no specific allegation(s) to support this contention.

STANDARD OF REVIEW AND BURDEN OF PROOF

Appellate courts review evidence de novo under the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Cunningham v. Borden Dairy Co. of Texas, LLC, 2024-0105 (La. App. 1 Cir. 11/20/24), 405 So.3d 1027, 1036, writ denied, 2024-01575 (La. 4/1/25), 404 So.3d 657. A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).

Manchac Place had the initial burden of proving plaintiffs’ claims are barred by subsection 5.5 of the Declaration. If this was done, the burden shifted to plaintiffs to present evidence demonstrating a material factual issue remains. See La. C.C.P. art. 966(D)(1); Bond v. Louisiana Purchase Equestrian Estates., L.L.C., 2020-0699 (La. App. 1 Cir. 2/19/21), 318 So.3d 200, 205, writ denied, 2021-00424 (La. 5/11/21), 315 So.3d 872; Robinson v. Williams, 2024-0201 (La. App. 1 Cir. 12/11/24), 404 So.3d 821, 827.

ISSUES PRESENTED

As noted, it is undisputed that plaintiffs are bound by the Declaration by virtue of their ownership of property within Manchac Place Subdivision. Thus, subsection 5.5 is enforceable to the extent it does not conflict with La. C.C. art. 2004. As long as one's negligence does not cause physical injury to another, contractual provisions are valid to eliminate or limit liability for losses due to negligence, but not for losses caused by intentional acts or gross fault. See La. C.C.P. art. 2004 and Daigle v. Clemco Industries, 613 So.2d 619, 623 (La. 1993) (stating that a compromise or contractual clause is not null because it excludes or limits liability in advance except when a party to the contract relinquishes future rights of action arising from his physical injury or from the intentional or gross fault of another party). See also Wilson v. Two SD, LLC, 2015-0959 (La. App. 1 Cir. 12/23/15), 186 So.3d 103, 109.

Additionally, it is not necessary to find the entire exclusionary provision is null if some terms violate both parts of La. C.C. art. 2004. See Morse v. J. Ray McDermott & Co., Inc., 344 So.2d 1353, 1358 (La. 1976). See also Wadick v. General Heating & Air Conditioning, LLC, 2014-0187 (La. App. 4 Cir. 7/23/14), 145 So.3d 586, 599, writ denied, 2014-1913 (La. 11/21/14), 160 So.3d 972 (finding it proper to delete the offending claims for physical injury and property damages caused by bad faith breach of contract or fraud from the exculpatory provision and allowing the remainder of the exculpatory provision to stand, i.e., claims for property damages caused by the good faith breach of the installment contract). Therefore, we consider whether subsection 5.5 precludes each claim asserted or purportedly asserted by plaintiffs. See Wadick, 145 So.3d at 599-600.

Physical Injury

Plaintiffs’ petition alleges and seeks damages for physical injuries. Pursuant to Article 2004, subsection 5.5 is null to the extent it purports to limit, in advance, Manchac Place's liability for causing physical injury related to the rise and fall of water in the lake. See Wilson, 186 So.3d at 109. Thus, the trial court erred by dismissing plaintiffs’ claim for physical injuries and abused its discretion by denying plaintiffs’ motion for new trial as to this claim. See La. C.C.P. art. 1972(1); Flowers v. Tasker, 2024-0690 (La. App. 1 Cir. 2/28/25), 407 So.3d 927, 946.

Intentional or Gross Fault

An act is intentional when the actor either (1) consciously desires the result of his action, regardless of the likelihood of success, or (2) has knowledge to a substantial certainty that the harm will occur, regardless of his desire to achieve that result. Bazley v. Tortorich, 397 So.2d 475, 481 (La. 1981).⁴

Gross negligence is the want of even slight care and diligence and the want of that diligence which even careless men are accustomed to exercise. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099 (La. 7/5/94), 639 So.2d 216, 219; Listach v. West Baton Rouge Parish School Board, 2021-0079 (La. App. 1 Cir. 6/9/21), 328 So.3d 450, 455, writ denied, 2021-00982 (La. 11/3/21), 326 So.3d 887. Gross negligence has also been described as an extreme departure from ordinary or even scant care and the entire absence of care that amounts to complete neglect of the rights of others. Listach, 328 So.3d at 455.

Plaintiffs’ petition alleges that “negligent actions” by Manchac Place caused the flooding, such as improper placement/installation of the obstruction that blocked the flow of water, failure to perform studies and/or use sound engineering judgment to decide whether the barrier should be placed and which type to utilize, and “negligent maintenance” of the area in and around the pond. These allegations state a claim for ordinary negligence, not gross negligence. There are no factual allegations in the petition to support the conclusion that, if proven, Manchac Place acted without “even slight care” or with the entire absence of care that amounted to complete neglect of the plaintiffs’ rights. See Listach, 328 So.3d at 455. Additionally, plaintiffs do not allege that Manchac Place consciously desired their home to flood or that it had knowledge to a substantial certainty that their home would flood if the flow of water from the pond was obstructed. See Bazley, 397 So.2d at 481.

Mr. Goings’ deposition likewise does not contain testimony sufficient to create a genuine issue of material fact as to whether Manchac Place acted with intentional or gross fault. Mr. Goings confirmed he has no expertise in drainage and relied on his opinions, “common sense,” and speculation to support the allegations in the petition. Similarly, Mr. Goings confirmed he does not know if Manchac Place blocked the drainage for aesthetic purposes.

After reviewing the summary judgment evidence, we find no genuine issue of material fact exists as to the legal nature of Manchac Place's actions. If proven, plaintiffs’ allegations against Manchac Place will give rise to liability for ordinary negligence. Therefore, La. C.C. art. 2004’s prohibition against the advanced waiver of claims arising out of intentional or gross fault is inapplicable.

Property Damage Caused by Ordinary Negligence – Lake v. Pond

Under La. C.C. art. 2004, a clause relieving a party from liability for damage to property caused through slight fault is valid, unless prohibited by special statutes. La. C.C. art. 2004, Revision Comment (d).⁵ Louisiana courts have enforced provisions that limited or eliminated a party's liability for property damages caused by his negligence or good faith breach of a contract, unless the disclaimer or limitation of liability was not contained in a written contract expressing the parties’ consent. See Wilson, 186 So.3d at 109.

Here, plaintiffs do not assert that subsection 5.5 is null as to their claim for property damage caused by Manchac Place's negligence. Instead, plaintiffs assert that subsection 5.5 does not apply because it uses the term “lake,” whereas their claims concern a “retention pond.”

The Declaration's definition of “Common Properties” does not expressly include a lake; however, Section V. “COMMON PROPERTIES” includes subsection 5.4 “Used of the Lake.” This subsection sets forth the permissible uses of “the lake located within the Common Properties.” Subsection 5.5 appears next and contains the release of liability for the rise and fall of water in the lake. As Manchac Place points out, the Declaration does not reference a “pond” or “retention pond.”

Neither party provided evidence or legal citations to establish whether a distinction exists between a lake and a pond or retention pond. Although Black's Law Dictionary does not define “pond” or “retention pond,” it defines “lake” as “[a] large body of standing water in a depression of land or basin supplied from the drainage of an extended area; esp., a natural depression in the surface of the earth containing a reasonably permanent body of water that is substantially at rest.” Black's Law Dictionary, (12th Ed. 2024). Merriam-Webster Dictionary defines “lake” as “a considerable inland body of standing water.”⁶ This source defines “pond” as “a body of water usually smaller than a lake” but does not define “retention pond.”⁷ These definitions indicate there is no legally significant distinction between a pond, a retention pond, and a lake for purposes of determining whether the petition and the Declaration refer to the same body of water.

During his deposition, Mr. Goings testified that, after researching, he learned that most subdivisions have what is called a retention pond, intended to “sit there and hold the storm water[.]” He explained that water run-off within Manchac Place Subdivision flows through storm drains, into the pond, then into a bayou.

After comparing Mr. Goings's testimony and the Declaration, it is evident the parties are describing the same body of water located in Manchac Place Subdivision. Mr. Goings used the term “retention pond” because most neighborhoods use that term to describe the “body of standing water in a depression of land․supplied from the drainage of an extended area” (the subdivision). What Mr. Goings described is also, by definition, a lake. See Black's Law Dictionary, (12th Ed. 2024). There is no distinction between the situation presented here and one where a plaintiff refers to a “vehicle” and a defendant refers to an “automobile” to describe the same “car” accident. It is a distinction without a legally significant difference. Thus, subsection 5.5 bars the plaintiffs’ claim for property damage caused by Manchac Place's negligence, and summary judgment was properly granted to dismiss this claim. Similarly, the trial court did not abuse its discretion by denying plaintiffs’ motion for new trial as to this claim.

CONCLUSION

For the foregoing reasons, we affirm the January 29, 2025 judgment insofar as it granted summary judgment in favor of Manchac Place Homeowners Association, Inc. and Western World Insurance Co. and dismissed Troy and Sheri Goings's claim for property damage. We affirm the April 30, 2025 judgment insofar as it denied the motion for new trial filed by Troy and Sheri Goings as to their claim for property damage.

We reverse the January 29, 2025 judgment insofar as it granted summary judgment in favor of Manchac Place Homeowners Association, Inc. and Western World Insurance Co. and dismissed Troy and Sheri Goings's claim for physical injuries. We reverse the April 30, 2025 judgment insofar as it denied the motion for new trial filed by Troy and Sheri Goings as to their claim for physical injuries.

We remand this matter to the trial court for further proceedings. Troy and Sheri Goings are assessed with 50% of the costs of this appeal, and Manchac Place Homeowners Association, Inc. and Western World Insurance Co. are assessed with 50% of the costs of this appeal.

JANUARY 29, 2025 JUDGMENT AFFIRMED IN PART, REVERSED IN PART; APRIL 30, 2025 JUDGMENT AFFIRMED IN PART, REVERSED IN PART; REMANDED.

I respectfully dissent, in part.

With respect to the physical injury claims, the majority correctly finds that the trial court erred by dismissing plaintiffs’ claim for physical injuries and abused its discretion by denying plaintiffs’ motion for new trial as to this claim. Subsection 5.5 is null as it attempts to bar plaintiffs’ claim for physical injuries, contrary to La. C.C. Art. 2004.

However, I disagree that an intentional claim, or at least a gross negligence claim, is not before this Court. In Paragraph 10 of the plaintiffs’ petition, plaintiffs allege that defendants “made the decision to obstruct the flow of water from the retention pond by partially blocking the drain box via the placement of a barrier in order to increase the aesthetics of the retention pond.” (Emphasis added.) In Paragraph 13, plaintiffs further allege:

the cause of the water entering plaintiffs’ residence was the negligent actions of (1) improper placement/installation of a barrier to obstruct the flow of water from the retention pond; (2) negligent maintenance of the area in and or around the retention pond to remove debris; (3) failure to perform studies and/or use sound engineering judgment in deciding whether or not placement of a barrier and/or which type of barrier to utilize to obstruct the flow of water from the retention pond was in the best interests of the homeowners of MANCHAC PLACE subdivision; (4) deciding that a retention pond should higher levels of water for aesthetics purposes; and (5) other acts of negligence to be shown/proven at a trial of this matter.

Louisiana is a fact pleading state that values substance over form and does not require the use of magic titles or terminology as a threshold requirement for validly pleading an action. Wheat v. Nievar, 2007-0680 (La. App. 1 Cir. 02/08/08), 984 So. 2d 773, 776. While the plaintiffs did not use the magic words “gross fault,” this is not dispositive. It does not preclude an analysis of whether the negligence amounted to intentional or gross negligence which cannot be waived.¹ See La C.C. art 2002.

Based on a de novo review, I believe the defendants failed to show section 5.5 is applicable and bars relief for the intentional or gross negligence claims plaintiffs assert. On November 1, 2024, Manchac Place moved for summary judgment as to all the claims. As the movant, it was Manchac's burden to support its claim that its actions did not amount to intentional or gross negligence. The majority makes a finding that there is no evidence that “Manchac Place consciously desired their home to flood or that it had knowledge to a substantial certainty that their home would flood if the flow of water from the pond was obstructed.” However, the burden remained on Manchac Place to prove that there was no conscious desire or knowledge that Goings’ home would flood if the flow of water from the pond was obstructed by the placement of the boards.

Instead, the only support Manchac Place offered was the “Declaration of Covenants and Restrictions for Manchac Place Subdivision” and the petition. In their “Memoranda in Support of Defendants’ Motion for Summary Judgment” Manchac Place offered a conclusory statement that “Manchac Place HOA denies the Goings’ claims of negligence and that the damages alleged by the Goings were in any way the fault of Defendants.” Defendants go on to state that the determination of “this issue” is unnecessary because plaintiffs’ ownership in the subdivision automatically subjects the party to Section 5.5. However, I disagree that Manchac Place supported their burden for a motion for summary judgment. In short, Manchac Place cannot rely on mere assertions to sustain their burden.

I cannot find support that the negligence claims were refuted with evidence. Therefore, the burden did not shift. Based on a de novo review, I believe the burden remained with the defendants with respect to the claims of intentional or gross negligence. Robinson v. Williams, 2024-0201 (La. App. 1 Cir. 12/11/24), 404 So. 3d 821, 827. As such, the trial court erred in granting a motion for summary judgment in favor of defendants.

FOOTNOTES

2.   We further note the petition alleges that the Goings own real property in Manchac Place Subdivision and are members of the Manchac Place by virtue of this ownership. The petition further states that Manchac Place is to perform duties detailed in the Covenants and Restrictions.

3.   The established rule in this circuit is that the denial of a motion for new trial is an interlocutory and non-appealable judgment. However, the court may consider interlocutory judgments as part of an unrestricted appeal from a final judgment. Flowers v. Tasker, 2024-0690 (La. App. 1 Cir. 2/28/25), 407 So.3d 927, 93 8 n.6. Because plaintiffs challenge the trial court's denial of their motion for new trial as part of the appeal from the final judgment, we may consider the issue on appeal.

4.   Although Bazley defined an intentional act for purposes of workers’ compensation, this court considered the same factors in the context of La. C.C. art. 2004 in White v. DT Williams, LLC, 2022-1145 (La. App. 1 Cir. 6/2/23), 369 So.3d 915, 922, writ granted, decision reversed (on other grounds), 2023-00906 (La. 11/8/23), 372 So.3d 801. Other courts have likewise applied these factors outside of workers’ compensation. See Whitehead v. Christus Health Central Louisiana, 2021-764 (La. App. 3 Cir. 6/8/22), 344 So.3d 91, 96 (applying the Bazley factors in a medical malpractice case).

5.   While the Official Revision Comments are not the law, they may be helpful in determining legislative intent. Arabie v. C1TGO Petroleum Corp., 2010-2605 (La. 3/13/12), 89 So.3d 307, 312.

6.   See https://www.merriam-webster.com/dictionary/lake

7.   See https://www.merriam-webster.com/dictionary/pond

1.   Louisiana Civil Code Art. 2004 states:Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party.Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.(Emphasis added.) Pursuant to La. C.C. art. 2004, an argument could be made that Section 5.5 is null in its entirety, given that it limits Manchac Place's liability for all claims including those that cause physical injury and gross negligence.

HAGGERTY, J.

Balfour, J. dissents with reasons.