KIMBALL, Justice.[fn*] [fn*] Retired Judge Philip C. Ciaccio, assigned as Associate Justice Ad Hoc, sitting for Associate Justice Chet D. Traylor, recused.Page 1

We granted certiorari in this matter to review the Court of Appeal's ruling that Defendant in this matter, 615 Bourbon Street, L.L.C., as owner and lessor of the premises upon which its lessee operates the bar "The Rock," is not liable to the plaintiffs for the alleged excessive noise associated with the loud music played by the bar, and is therefore entitled to summary judgment. For the reasons that follow, we find that the Court of Appeal erroneously concluded under the facts of this case that the defendant/owner and lessor of this property cannot be held responsible for the actions of its lessee under Article 667 of the Louisiana Civil Code. Accordingly, the Court of Appeal's decision affirming summary judgment is reversed, and the case is remanded for further proceedings.

FACTS AND PROCEDURAL HISTORY

Peterson M. Yokum is the owner of and resides at the premises located at 723 Toulouse Street in the French Quarter in New Orleans, Louisiana, with his wife, Polly Elizabeth Anderson. The property located at 723 Toulouse Street is zoned "Vieux Carre Commercial District-2 Mixed Residential" ("VCC-2"). The entity 615 Bourbon Street, L.L.C. is the owner and lessor of the premises located at 615-617 Bourbon Street. On October 15, 2003, 615 Bourbon Street, L.L.C. executed a commercial lease of property with O'Reilly Properties, L.L.C. ("O'Reilly"), leasing the premises located at 615-617 Bourbon Street in New Orleans, Louisiana, to O'Reilly to be "used exclusively for legitimate, commercial, purposes . . .". Moreover, the lease between 615 Bourbon Street, L.L.C. and O'Reilly stated that "Lessee is obligated not to use same for any purpose that is unlawful or that tends to injure or depreciate the property, and such unlawful, injurious or depreciatory use shall, if not cured after 5 days notice, constitute a breach thereof. . . .". The lease also stated that as "additional consideration for this lease, Lessee agrees to maintain at all times during the term of this lease a valid liquor license for the leased premises and to pay all expenses incidental thereto." O'Reilly thereafter began operating the bar The Rock on the premises owned by 615 Bourbon Street, L.L.C.

Plaintiffs, Mr. Yokum and Ms. Anderson, allege that they have been subjected to loud and ongoing live entertainment conducted at the bar known as The Rock, located at 615-617 Bourbon Street, beginning as early as 2003, which has prevented the proper quiet enjoyment of their home. As a result, in 2003, counsel for Mr. Yokum and Ms. Anderson sent separate letters via certified mail, with return receipt requested and confirmed, one to the attention of the Bar Manager at The Rock, 617 Bourbon Street, New Orleans, Louisiana, 70116, and one to 615 Bourbon Street, L.L.C., 3233 Lake Trail Drive, Metairie, Louisiana, 70003. The letter sent to the Bar Manager at The Rock was dated December 29, 2003, and advised him that the repeated and excessive noise emanating from their establishment was interfering with Mr. Yokum and Ms. Anderson's privacy, as well as their ability to use and enjoy their property. The letter further informed The Rock that if it did not reduce the noise emanating from its property, suit would be filed. Counsel also invited the opportunity to mediate and/or negotiate the matter so that it could be resolved without resorting to litigation.

Similarly, the letter sent by counsel for plaintiffs to 615 Bourbon Street, L.L.C., also dated December 29, 2003, included a copy of the aforementioned letter sent directly to The Rock, and informed 615 Bourbon Street, L.L.C. that if its tenant did not immediately cease and desist from its noisy activities, it may be held liable for any damages sustained by its neighbor as a result of its tenant's activities.

Counsel for plaintiffs also sent a letter, dated April 7, 2005, to The Rock, 615 Bourbon Street, New Orleans, Louisiana, 70130, again informing it of the plaintiffs' claims of loud and offensive noise emanating from The Rock, and that if proper reductions in the noise did not take place, it would be sued. Again, counsel invited the opportunity to mediate and/or negotiate the matter in an effort to avoid litigation. However, plaintiffs claim that 615 Bourbon Street, L.L.C. took no action following receipt of the referenced letters to prevent or reduce the continued noise emanating from its property.

Plaintiffs, Peterson M. Yokum and Polly Elizabeth Anderson, thereafter filed a Petition for Damages and Declaratory and Injunctive Relief on July 20, 2005, in the Civil District Court for the Parish of Orleans, naming "615 Bourbon Street, L.L.C. d/b/a The Rock, Old Opera House, Inc. d/b/a Old Opera House and Willie Mintz" as defendants, and attaching the aforementioned letters as exhibits. In their petition, plaintiffs allege that defendant 615 Bourbon Street, L.L.C. d/b/a The Rock, located within the "Vieux Carre Entertainment District" ("VCE") "owns and operates a bar between the hours of 3:00 p.m. and 3:00 a.m. with live amplified music and entertainment at 615/617 Bourbon Street, New Orleans, Louisiana" with noises that "are sufficient to cause physical discomfort and annoyance to Peter Yokum and Polly Anderson, and any person of ordinary sensibilities, and constitute a nuisance."

Plaintiffs also allege in their petition that defendants have violated the municipal noise ordinances for the City of New Orleans, specifically, City Code Sections 66-202, governing the maximum permissible sound levels, and 66-203(5), governing the specific nuisance noises that are prohibited.

Plaintiffs further allege in their petition that 615 Bourbon Street, L.L.C. d/b/a The Rock and Old Opera House, Inc. d/b/a Old Opera House have violated La.R.S. 26:90(A)(14)(a) 26:286(A)(14)(a), which plaintiffs state make it unlawful for a person holding a retail dealer permit under the alcoholic beverage control law to play live or recorded music which is so unreasonably intrusive or offensive as to interfere with the comfortable enjoyment of the property of a person.

Finally, and most relevant for purposes of the instant matter, plaintiffs assert in their Petition that defendants in this instance are in violation of Louisiana Civil Code articles 667 and 669, relating to nuisance.

The record does not indicate that defendant 615 Bourbon Street, L.L.C. filed an answer to plaintiffs' Petition for Damages and Declaratory and Injunctive Relief. However, on February 22, 2006, 615 Bourbon Street, L.L.C. did file a Motion for Summary Judgment, which included a Motion for Sanctions against plaintiffs and their counsel pursuant to Article 863 of the Louisiana Code of Civil Procedure. In conjunction with the Motion for Summary Judgment, defendant 615 Bourbon Street, L.L.C., provided the affidavit of Raymond Gonzales, Jr., Manager of 615 Bourbon Street, L.L.C. The affidavit provided:

1. That 615 Bourbon Street, L.L.C., is the owner of the immovable property bearing Municipal No. 615 Bourbon Street, New Orleans, Louisiana;

2. That said entity entered into a lease of said property with O'Reilly Properties, L.L.C., dated October 15, 2003, a redacted copy of which is annexed hereto, marked Exhibit "615 Bourbon Street, L.L.C.-1";

3. That 615 Bourbon Street, L.L.C. does not operate any business whatsoever on these premises of the property which it owns at 615 Bourbon Street, New Orleans, Louisiana, and more specifically, it does not own and operate a bar known as The Rock located [sic] 615-617 Bourbon Street.

In addition to its alleged material facts not in dispute, defendant asserted in the memorandum in support of its Motion for Summary Judgment that plaintiffs' allegations of noise ordinance violations and the creation of a nuisance arise out of the operation of the business known as The Rock. Defendant further argued in its motion that "[t]he petition contains no allegations whatsoever which would impose liability upon 615 BOURBON STREET, L.L.C., in its capacity as lessor of the premises, and it is further submitted that liability, if any, would arise only out of the operation of La. Civil Code Articles 667

Following a hearing on April 21, 2006, the trial court granted defendant 615 Bourbon Street, L.L.C.'s Motion for Summary Judgment, dismissing the plaintiffs' claims against 615 Bourbon Street, L.L.C., with prejudice, and denied the defendant's Motion for Sanctions, in a written judgment signed April 28, 2006. The record does not reflect any written reasons for judgment from the trial court, nor does the record contain a transcript of the hearing.

Plaintiffs appealed to the Court of Appeal, Fourth Circuit, on September 26, 2006, asserting that the trial court committed manifest error by granting defendant's premature motion for summary judgment because not only do plaintiffs, as the aggrieved neighbors, have standing and a right of action against 615 Bourbon Street, L.L.C. under Louisiana Civil Code articles 667, 668, and 669, defendant 615 Bourbon Street, L.L.C. failed to establish a prima facie case of entitlement to summary judgment regarding its vicinage obligations to plaintiffs under articles 667, 668, and 669.

Regarding the trial court's granting of summary judgment, plaintiffs asserted at the Court of Appeal that discovery in this fact-intensive matter is critical, and because summary judgment was prematurely granted, plaintiffs were denied the opportunity to discover whether 615 Bourbon Street, L.L.C. exercised reasonable care to prevent the nuisance and/or whether 615 Bourbon Street, L.L.C. exercised reasonable care to abate the nuisance. Plaintiffs reiterated that Louisiana Code of Civil Procedure article 966(C) provides that a motion for summary judgment which shows no genuine issues of material fact shall be granted only after adequate discovery or after a case is set for trial. Because issues of fact exist in this matter, including whether the servitude and vicinage duties of articles 667, 668, and 699 have been violated, and whether the noise emanating from the property located at 615-617 Bourbon Street into the plaintiffs' home is a nuisance that must be tolerated, plaintiffs asserted that summary judgment was not appropriate in this matter.

Plaintiffs also argued at the Court of Appeal that under articles 667, 668, and 669 of the Louisiana Civil Code, 615 Bourbon Street, L.L.C. is, as owner of the subject property, a "proprietor" and is therefore burdened with a legal servitude in favor of its neighbors, plaintiffs Mr. Yokum and Ms. Anderson. Plaintiffs therefore asserted that the existence of a lease does not extinguish the legal servitude or the duties defendant in this matter owes to them as neighbors.

In response, defendant argued in the Court of Appeal that the assignment of error before the Court was not whether plaintiffs have standing or a right of action, but rather, if any of the causes of action set forth in the original or supplemental petitions filed in the trial court were factually supported by the plaintiffs. According to defendant, because the allegations in the plaintiffs' petition were directed against "615 Bourbon Street, L.L.C. doing business as 'The Rock,'" the petition contains no allegations regarding 615 Bourbon Street, L.L.C. itself. Moreover, defendant asserted that because the burden of proof in this matter would be on the plaintiffs, defendant 615 Bourbon Street, L.L.C., as mover for summary judgment, was only required to point out to the court the absence of factual support for one or more elements essential to the plaintiffs' claim according to article 966(C)(2) of the Louisiana Code of Civil Procedure. Thereafter, when plaintiffs, Mr. Yokum and Ms. Anderson, failed to establish by affidavit or otherwise any factual support for the allegations in their Petition for Damages, there is no genuine issue of material fact and the trial court was correct in granting defendant's Motion for Summary Judgment.

Defendant further argued that the issue for the Court of Appeal to decide was whether defendant, as lessor of the subject premises, incurs liability for the use of its property by its lessee operating under permits issued by the City of New Orleans. Relying on the case of Borenstein v. Joseph Fein Caterers, Inc., 255 So.2d 800 (La.App. 4 Cir. 1971), defendant stated that if the noise violates the quoted municipal ordinances, the party responsible for the alleged damages is the operator of the bar, who, in the instant litigation, has not been joined as a party.

Finally, defendant stated that because plaintiffs did not pursue any discovery requests between the time of filing suit in June, 2005, and February, 2006, and plaintiffs did not file a motion to continue in order to proceed with discovery, plaintiffs cannot now argue that the Motion for Summary Judgment was improperly granted because of the lack of discovery.

In an opinion issued on June 20, 2007, the Court of Appeal, Fourth Circuit, affirmed the trial court's grant of summary judgment and dismissal of plaintiffs' claims against 615 Bourbon Street, L.L.C., with Judge Cannizzaro dissenting. In its decision, the Court of Appeal reasoned that although the plaintiffs' appeal is based on the obligations of vicinage arising out of articles 667, 668, and 669 of the Louisiana Civil Code, because the Court of Appeal could find no cases imposing liability upon the owner lessor of property under Louisiana Civil Code article 667 for the acts of its lessee, it declined to do so in this matter. Specifically, the court stated that "[i]n view of the numberless owner-lessor-lessee relationships known to exist in this State, it would be most extraordinary for owner-lessor liability for acts of the lessee under La.C.C. art. 667 to be res nova if it were the purpose of that Code article to impose such liability." Yokum v. 615 Bourbon Street, L.L.C., 06-1057, p. 2 (La.App. 4 Cir. 6/20/07); 960 So.2d 1283, 1285.

The Court of Appeal further found that the Fourth Circuit in Borenstein v. Joseph Fein Caterers, Inc., 255 So.2d 800, 804 (La.App. 4 Cir. 1971) overruled Burke v. Besthoff Realty Co., 196 So.2d 293, 297 (La.App. 4 Cir. 1967) ( abrogated by Borenstein v. Joseph Fein Caterers, Inc., 255 So.2d 800, 804 (La.App. 4 Cir. 1971) (holding that it is the proprietor (owner) of the real estate to whom the duty of not making any work on his property that will damage his neighbor applies, as the duty is imposed upon him rather than his lessee; it is the owner who is "doing" with his estate as it may please him to do, to the extent that article 667 restricts his freedom of use, he is responsible for the use which his lessee makes of the property). According to the Court of Appeal below, Borenstein supports the decision of the trial court to grant the defendant property owner's Motion for Summary Judgment in this matter, as the court in Borenstein found that, because a nuisance is a condition, the person legally liable for the nuisance is the person actually responsible for the existence of the condition. Thus, the Borenstein court found that the liability of a party as a proprietor under Louisiana Civil Code article 667 in a nuisance action should be determined on the basis of his responsibility for the existence of the condition which constitutes the nuisance. In the instant matter, the Court of Appeal found that the lessor/owner/defendant is not the person actually responsible for the existence of the condition, and therefore, because plaintiffs' only complaint is the noise level of the music, caused by the lessee/operator of the bar, there is no basis in law for holding the lessor/owner/defendant liable under Louisiana Civil Code article 667. As such, the Court of Appeal found that there is no genuine issue of material fact concerning the operation of the bar by the defendant's lessee, and thus, the Court of Appeal concluded that the trial court did not err in granting defendant's Motion for Summary Judgment.

Also in support of its decision, the Court of Appeal distinguished the case of Chaney v. Travelers Insurance Co., 259 La. 1, 249 So.2d 181 (1971), specifically finding that Chaney provided no authority for imposing liability under Louisiana Civil Code article 667 on the lessor-owner for the acts of the lessee because the lessee in the instant matter is not the agent, contractor, or representative of the lessor owner. Further, the Court of Appeal in this matter also found this Court's decision in Inabnet v. Exxon Corp., 93-0681 (La. 9/6/94); 642 So.2d 1243, factually distinguishable, as it involved a dispute between two lessees. The Court of Appeal stated that while the Inabnet decision could be interpreted to hold the lessee operator of The Rock responsible for the claims of the plaintiffs in this instance, nothing in the Inabnet decision suggested that 615 Bourbon Street, L.L.C., as owner/lessor of the premises, could be held liable to the plaintiffs for the music played by its lessee.

The Court of Appeal also found that because plaintiffs had made no efforts to pursue discovery between the time of filing suit on July 20, 2005, and the hearing on the Motion for Summary Judgment on April 21, 2006, and that plaintiffs made only general reference to disruptions caused by Hurricane Katrina, this did not lend credence to their argument concerning an inability to conduct discovery. For all of these reasons, the Court of Appeal affirmed the trial court's judgment granting summary judgment in favor of defendant.

Judge Cannizzaro dissented from the majority's opinion, finding that the clear language of article 667 of the Louisiana Civil Code provides that the "proprietor" is the owner of the property, and if the property owner knew, or in the exercise of reasonable care, should have known of any damage that was incurred by plaintiffs at the hands of its lessee, the property owner could be held liable. In the instant matter, 615 Bourbon Street, L.L.C., as owner of the property, cannot escape liability merely because it leases the property to the party actually causing the damage to a neighbor, if it was aware or should have been aware of the alleged damage.

Also finding the Court of Appeal's interpretation and application of the decisions in Inabnet v. Exxon Corp., 93-0681 (La. 9/6/94); 642 So.2d 1243, Chaney v. Travelers Insurance Co., 259 La. 1, 249 So.2d 181 (1971), and Borenstein v. Joseph Fein Caterers, Inc., 255 So.2d 800 (La.App. 4 Cir. 1972) misplaced, Judge Cannizzaro stated that none of these cases support the proposition that an owner of property cannot in some cases be held liable for damages caused by the actions of its lessee that result in damage to neighboring property owners. As such, Judge Cannizzaro opined that the defendant's Motion for Summary Judgment should be reversed and the case remanded for trial.

On August 2, 2007, the Court of Appeal, Fourth Circuit, denied plaintiffs' application for rehearing, with Judge Cannizzaro voting to grant rehearing. Plaintiffs thereafter timely filed the instant writ application.

In support of their application, plaintiffs assert that the Court of Appeal erred in its interpretation and application of Article 667 of the Louisiana Civil Code, thereby creating conflicting decisions regarding whether or not a property owner is a "proprietor" under Article 667 of the Louisiana Civil Code, as well as confecting inconsistent jurisprudence concerning a property owner's vicinage obligations and duties found in articles 667, 668 and 669 of the Louisiana Civil Code. Plaintiffs argue that not only did the Court of Appeal incorrectly conclude that the aforementioned Borenstein case overruled the Burke matter, it incorrectly created a "lease exemption" and immunity to the well-settled duties and obligations of a property owner found in articles 667, 668, 669 and article 2315 of the Louisiana Civil Code. Plaintiffs therefore assert that the trial court inappropriately granted the defendant's premature Motion for Summary Judgment without a proper and mandatory fact-intensive inquiry or discovery.

Defendant 615 Bourbon Street, L.L.C. opposed plaintiffs' writ application, stating that although it agrees with plaintiffs that if the defendant negligently or intentionally breaches the legal servitude it owes the plaintiffs, under the express language of Louisiana Civil Code article 667, the defendant is delictually liable to them, the pleadings before the trial court failed to set forth any allegations against 615 Bourbon Street, L.L.C. as lessor, which would render it liable for damages under Louisiana Civil Code article 2315. According to defendant, the petition incorrectly alleges that 615 Bourbon Street, L.L.C. owns and operates a bar known as The Rock, and because the plaintiffs' allegations arise out of the operation of the bar, plaintiffs have failed to properly plead a theory of liability against defendant. Defendant further asserts that the Court of Appeal's decision does not create conflicts in Louisiana jurisprudence, and summary judgment was properly granted in its favor.

We granted certiorari in this matter to review the Court of Appeal's ruling that summary judgment in favor of defendant was appropriate because defendant 615 Bourbon Street, L.L.C., as lessor owner in this matter, is not the person actually responsible for the existence of the noise complained of, and therefore, there is no basis in law for holding the lessor/owner liable under Louisiana Civil Code article 667. We disagree with the Court of Appeal's reasoning, as our review of Louisiana law and its long-standing jurisprudence regarding this matter dictates a different conclusion. For the reasons set forth below, we find that the Court of Appeal's decision below was in error, and therefore reverse its ruling affirming summary judgment in favor of defendant, and remand the case to the trial court for further proceedings.

DISCUSSION

Because the Court of Appeal affirmed summary judgment based upon its conclusion that defendant/lessor 615 Bourbon Street, L.L.C. is not responsible for the actions of its lessee under Louisiana Civil Code article 667, we must first examine article 667 and its application to owner lessors. From that determination, we must then decide whether summary judgment in favor of defendant 615 Bourbon Street, L.L.C. in this instance is appropriate.

It is a "general principle of law, that owners may use their property as they please, with the exception that they do no injury to others," under the theory of " sic tuum utere ut alium non laedas." Boatner v. Henderson Al., 5 Mart, (n.s.) 186 (La. 1826); see also Borgnemouth Realty Co. v. Gulf Soap Corp., 212 La. 57, 31 So.2d 488, 490(1947). As courts have recognized, Louisiana law does impose certain limitations on ownership, with one instance being through predial servitudes. A predial servitude, provided for in Article 646 of the Louisiana Civil Code, is a "charge on a servient estate for the benefit of a dominant estate." Further, a predial servitude requires that "[t]he two estates must belong to different owners." La.C.C. art. 646. Moreover, article 654 of the Louisiana Civil Code provides:

Predial servitudes may be natural, legal, and voluntary or conventional. Natural servitudes arise from the natural situation of estates; legal servitudes are imposed by law; and voluntary or conventional servitudes are established by juridical act, prescription, or destination of the owner.

As such, articles 667, 668, and 669, found in the same Title of the Louisiana Civil Code governing "Predial Servitudes," establish certain limitations on the scope and extent of the right of ownership in immovable property. Inabnet v. Exxon Corp., 93-0681, p. 9 (La. 9/6/94); 642 So.2d 1243, 1250-1 ("Articles 667- 669 place limitations on the rights of owners by setting out principles of responsibility applying the doctrine of sic utere tuum ut alienum non laedas, which requires an owner to use his property in such a manner as not to injure another.") Thus, the referenced limitations set forth in articles 667, 668, and 669 of the Louisiana Civil Code are limitations on ownership imposed by law. Predial Servitudes, Yiannopoulos, 4 Louisiana Civil Law Treatise, §§ 33, 34 (West 2004). Further, this Court has previously found that the corresponding rights and obligations of neighboring proprietors, arising from that relationship between proprietors, are principally governed by Louisiana Civil Code articles 667, 668, and 669. Inabnet v. Exxon Corp., 93-0681, p. 8 (La. 9/6/94); 642 So.2d 1243, 1250.

As set forth previously, the full text of Article 667 provides:

Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. However, if the work he makes on his estate deprives his neighbor of enjoyment or causes damage to him, he 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. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. Nonetheless, the proprietor is answerable for damages without regard to his knowledge or his exercise of reasonable care, if the damage is caused by an ultrahazardous activity. An ultra-hazardous activity as used in this Article is strictly limited to pile driving or blasting with explosives.

Article 668 of the Louisiana Civil Code provides:

Although one be not at liberty to make any work by which his neighbor's buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.

Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbors's [neighbor's] house, because his act occasions only an inconvenience, not a real damage.

Finally, Louisiana Civil Code article 669 provides that "[i]f the works or materials for any manufactory or other operations, cause an inconvenience to those in the same or in the neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude by which they are regulated, their sufferance must be determined by the rules of the police, or the customs of the place."

For purposes of the instant matter, our discussion focuses primarily on Louisiana Civil Code article 667, as we are faced with the issue of whether or not a "proprietor" owner and lessor can be responsible for the actions of its tenant/lessee. Article 667, originally enacted in 1808, was subject to the significant tort reform undertaken by the Louisiana Legislature in 1996. See Acts 1996, 1st Ex. Sess., No. 1, § 1. The language contained in Article 667 regarding strict or absolute liability for ultrahazardous activity was most heavily affected by the amendments, as this Court has so recognized:

Article 667 now clearly articulates that the only cognizable ultrahazardous activities are "pile driving" and "blasting with explosives." Any other activities besides the two the article specifically lists are not ultrahazardous for purposes of article 667. Thus, to qualify for the absolute liability standard, the plaintiff must show that the activity complained of is either "pile driving" or "blasting with explosives."

Suire v. Lafayette City-Parish Consolidated Government, et al, 04-1459, p. 13 (La. 4/12/05); 907 So.2d 37, 49.

Notably, the 1996 amendments to article 667 also incorporated the requirement that a proprietor or landowner be responsible for damages to an aggrieved neighbor "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," thus shifting the absolute liability standard to a negligence standard similar to that set forth in La.C.C. art. 2317.1 and the 1996 amendments to Articles 2321 and 2322. The 1996 amendments to article 667 did not change who could be held liable under the article, namely, the "proprietor"; rather, it changed the theory of liability under which the proprietor could be held responsible. As a result, in order for a proprietor/landowner to be held responsible for damages allegedly caused by works or actions on his property, it must be shown that the proprietor/landowner knew or should have known that the "works" on his property would cause damage, and that the damage could have been prevented by the exercise of reasonable care.

The term "proprietor" as used in Article 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." Inabnet v. Exxon Corp., 93-0681, p. 12 (La. 9/6/94); 642 So.2d 1243, 1251 (citing Lombard v. Sewerage and Water Bd. Of New Orleans, 284 So.2d 905 (La. 1973) and Ferdinand F. Stone, Tort Doctrine in Louisiana: The Obligations of Neighborhood, 40 Tul. L. Rev. 701, 711 (1966)). As mentioned previously, 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." State Through Dep't. of Transp. Dev. v. Chambers Inv. Co., 595 So.2d 598, 604 (La. 1992). Furthermore, this Court has also stated that "the proprietor is likewise responsible not only for his own activity, but also for that carried on by his agents, contractors and representatives with his consent and permission." Id.

Not only has the term "proprietor" been expanded from its traditional meaning of simply "landowner," the "work" to which Article 667 refers includes not only constructions but also activities that may cause damage. This Court stated in Chaney v. Travelers Ins. Co., that "our view will not accept the proposition that a proprietor is responsible for damage to a neighbor for a 'work,' that is, a structure on his premises which harms his neighbor without imposing a like response. sibility for harmful activity." 259 La. 1, 249 So.2d 181, 186 (1971) (emphasis added). We further stated that "[i]t is not the manner in which the activity is carried on which is significant; it is the fact that the activity causes damage to a neighbor which is relevant." Id. Thus, we find that the alleged excessive noise emanating from the defendant's leased premises in this instance falls within the concept of "work" as contemplated by Louisiana Civil Code article 667, in that it is an activity that could be harmful to neighboring proprietors.

Article 667, setting forth limitations imposed upon the ownership of land, is directly applicable to a proprietor land-owner who may also be a lessor of its property, as the act of lease by the land-owner is a right which is derived from ownership of the property. La.C.C. art. 2673 ("All things, corporeal or incorporeal, that are susceptible of ownership may be the object of a lease, except those that cannot be used without being destroyed by that very use, or those the lease of which is prohibited by law." (emphasis added)). Thus, because article 667 dictates, and this Court has previously established, that a proprietor/landowner can be responsible for the works or actions on its property that may cause damage to neighboring proprietors, we find the Court of Appeal's reasoning in this matter erroneous. Merely because a proprietor/landowner utilizes his right as a property owner to lease his property to another does not eradicate his or her responsibilities and obligations, set forth above, as a landowner. Moreover, under the Court of Appeal's rationale, even an owner/lessor with full knowledge of the potentially harmful effects of the lessee tenant's activities on its property would have little or no responsibility to protect the public and his neighbors from his lessee tenant's harmful activities. As a result, the Court of Appeal's interpretation creates a virtual immunity for landowners, allowing them to remove themselves from potential liability for damages that arise out of the ownership of their property by simply establishing a lease on their property.

We therefore find the Court of Appeal was incorrect in its assertion that a mere lack of jurisprudence imposing liability upon an owner or proprietor for the actions of its lessee which cause damage out of a lessee's use of the premises equates to a finding that an owner is not responsible for the actions of its lessee. More specifically, as shown above, it is well-settled that a "proprietor," which at its very basic meaning is a landowner, can be responsible for damages for any "work" under Article 667 of the Louisiana Civil Code, which this Court has clearly stated includes not only constructions but also activities, performed on its land that may cause damage to neighboring proprietors.

We do not venture to specifically find that 615 Bourbon Street, L.L.C., as owner and lessor of the subject premises, is responsible for the alleged damages caused in this particular instance, as that issue is not specifically before the Court. As discussed above, we decide today only that the Court of Appeal was erroneous in its conclusion that a proprietor/landowner/lessor may not be responsible for the actions of its lessee under article 667 of the Louisiana Civil Code. Because we find that an owner lessor can be responsible for damages caused by its lessee tenant under article 667 of the Louisiana Civil Code, we therefore conclude the Court of Appeal was in error in affirming summary judgment in favor of defendant 615 Bourbon Street, L.L.C.

Summary Judgment

Appellate courts review summary judgment de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate, and in the light most favorable to the non-movant. Suire v. Lafayette City-Parish Gov't., 04-1459, p. 11 (La. 4/12/05); 907 So.2d 37, 48; Hines v. Garrett, 04-0806, p. 1 (La. 6/25/04); 876 So.2d 764, 765 (per curiam); Goins v. Wal-Mart Stores, Inc., 01-1136, p. 5 (La. 11/29/01); 800 So.2d 783, 788 (citing Taylor v. Rowell, 98-2865, p. 3 (La. 5/18/99); 736 So.2d 812, 814). It is well-settled that summary judgment procedure, as set forth in article 966 of the Louisiana Code of Civil Procedure, is designed to secure the just, speedy, and inexpensive determination of actions. La.C.C.P. art. 966(A)(2). Summary judgment shall be rendered if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. La.C.C.P. art. 966(B). A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 04-0806, p. 1 (La. 6/25/04); 876 So.2d 764, 765 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94); 639 So.2d 730, 751). A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

The movant, here 615 Bourbon Street, L.L.C., has the burden of proof for purposes of seeking summary judgment in this instance under Louisiana Code of Civil Procedure article 966(C)(2). However, because 615 Bourbon Street, L.L.C. will not bear the burden of proof at trial of this matter, it is not required to negate all essential elements of plaintiffs' action, but rather to point out to the court that there is an absence of factual support for one or more elements essential to plaintiffs' action. Id. If 615 Bourbon Street, L.L.C. meets this initial burden of proof, the burden then shifts to the plaintiffs to produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden at trial. Id. If the plaintiffs, Mr. Yokum and Ms. Anderson, fail to meet this burden, there is no genuine issue of material fact, and defendant 615 Bourbon Street, L.L.C. is entitled to summary judgment. Id.

In order for 615 Bourbon Street, L.L.C. to satisfy its burden of proof in this matter, it must show that there is an absence of factual support for any of the elements of plaintiffs' cause of action that defendant has caused damage to plaintiffs as a result of the alleged excessive noise emanating from the premises upon which it maintains a lease, in violation of various city ordinances. Specifically, plaintiffs have alleged that under articles 667, 668, and 669 of the Louisiana Civil Code, defendant 615 Bourbon Street, L.L.C., as owner and operator of the premises, is responsible for the alleged excessive noise emanating from its leased premises. Article 667, as discussed above, states that while a "proprietor" may do on his land whatever he pleases, he cannot make "work" on it which may deprive his neighbor of the enjoyment of his estate. Further, if the work 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." La.C.C. art. 667.

Defendant has stated, in support of its Motion for Summary Judgment, that plaintiffs incorrectly identified it is as the "operator" of the premises, and that since plaintiffs' allegations of excessive noise arise out of the operation of the bar, defendant, as lessor of the premises, is not responsible for the alleged noise emanating from the bar known as The Rock. However, based upon our review of the record and defendant's Motion for Summary Judgment, we do not find that defendant has satisfied its burden of establishing an absence of factual support for any one of the elements of plaintiffs' cause of action that defendant has caused damage to plaintiffs as a result of the alleged excessive noise. More specifically, defendant has confirmed that it is the owner/proprietor of said premises as set forth under article 667, and has merely shown that it did not operate the establishment known as The Rock. Defendant has not, however, demonstrated how the fact that it did not actually operate the bar on its premises negates its responsibilities as a "proprietor" under article 667. Nor has defendant negated plaintiffs' allegation of notice of the alleged damages, as required by article 667, through the certified letters sent by counsel for plaintiff to both 615 Bourbon Street, L.L.C., and The Rock. As a result, defendant has not established an absence of factual support for any element essential to plaintiffs claim as set forth in article 667, namely, the requirements concerning its alleged knowledge of the loud noise, or any steps it may have taken to reasonably prevent the noise. We therefore conclude that summary judgment was not appropriate in this instance.

DECREE

For all of the above reasons, we find that the Court of Appeal incorrectly affirmed the trial court's grant of summary judgment in favor of Defendant 615 Bourbon Street, L.L.C. based upon the Court of Appeal's erroneous finding that there is no basis in law for holding a proprietor/owner/lessor liable under Article 667 for damages allegedly caused by its lessee. Louisiana law and jurisprudence have established that a proprietor, as landowner, can be responsible for those constructions or activities on its premises that may cause damage to its neighbors, whether the work or activities be performed by the proprietor itself or by one who maintains rights that derive from the ownership of the land, such as a tenant or lessee. Moreover, based upon our thorough review of the brief record in this matter, the defendant has failed to satisfy its burden in summary judgment under Article 966 of the Louisiana Code of Civil Procedure, as mover and as the party that will not bear the burden at trial, to negate any one element of plaintiffs' claims for damages. Specifically, a landowner can be responsible for "works" or activities on its property that may cause damage to neighbors if it knew or should have known that such works would cause damage and it failed to exercise reasonable care to remedy it. Therefore, defendant's assertion that while it may own the property, it does not operate the establishment which allegedly is causing damage to plaintiffs, does not negate any element of plaintiffs' claim in this matter. Summary judgment was therefore improperly granted. Accordingly, the decision of the Court of Appeal is reversed and the case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.