Beal v. Westchester Surplus Lines Ins. Co.

• Decision Date: 15 December 2021
• Docket Number: 2021-CA-0187
• Citation: 334 So.3d 438
• Parties: Annette BEAL v. WESTCHESTER SURPLUS LINES INSURANCE COMPANY, et al.
• Court: Court of Appeal of Louisiana — District of US

334 So.3d 438

Annette BEAL

v.WESTCHESTER SURPLUS LINES INSURANCE COMPANY, et al.

NO. 2021-CA-0187

Court of Appeal of Louisiana, Fourth Circuit.

DECEMBER 15, 2021

Michael C. Ginart, Jr., Joyce Duhe Young, Nicholas N.S. Cusimano, John C. Ginart, LAW OFFICES OF MICHAEL C. GINART, JR. & ASSOCIATES, L.L.C., 2114 Paris Road, Chalmette, Louisiana 70043, COUNSEL FOR APPELLANT/ANNETTE BEAL

Lambert J. Hassinger, Jr., Jeffrey J. Siemann, GALLOWAY JOHNSON TOMPKINS BURR & SMITH, 701 Poydras Street, 40^th Floor, New Orleans, Louisiana 70139, COUNSEL FOR DEFENDANTS/APPELLEES

(Court composed of Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods, Judge Paula A. Brown )

Judge Regina Bartholomew-Woods

In this trip and fall case, Plaintiff, Annette Beal ("Mrs. Beal"), seeks review of the trial court's judgment granting summary judgment in favor of Defendants, French Quarter Festivals, Inc., and Audubon Nature Institute, Inc. ("FQF and Audubon Institute"). FQF and Audubon Institute sought summary judgment, asserting that pursuant to Louisiana's recreational use immunity statutes they were not liable for Mrs. Beal's injuries and that the alleged hazard was open and obvious. Mrs. Beal opposed the motion for summary judgment, claiming that FQF and Audubon Institute are not entitled to immunity and that the hazard was not open and obvious. For the reasons that follow, we find FQF and Audubon Institute are entitled to immunity pursuant to the recreational use immunity statutes. Accordingly, we affirm the trial court's granting of FQF and Audubon Institute's motion for summary judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In April 2017, Mrs. Beal and her husband, Howard Beal ("Mr. Beal"), attended the French Quarter Festival ("the Festival"). They arrived in the French Quarter around 3:00 p.m. and proceeded to Woldenberg Riverfront Park. Mr. and Mrs. Beal found seats near one of the music stages located in the park. When Mr. Beal left to go get a drink, Mrs. Beal proceeded to the portable toilets. She walked to and used the portable toilets without incident. As she was returning to her seat, she tripped and fell over an exposed tree root. Mrs. Beal stated that she did not see the tree root and further acknowledged that she was not looking down as she was walking back to the stage area. She stated that upon examination, the tree root was covered with natural tree debris. Mr. Beal stated that he did not see his wife fall; however, he was alerted to the incident when he went looking for her after he returned to their seats. The paramedics were called, and Mrs. Beal was transported to the hospital by ambulance. Mrs. Beal alleges she sustained a trimalleolar fracture to her ankle, which required surgery.

Mrs. Beal filed suit in February 2018, seeking damages for injuries allegedly sustained because of her trip and fall while attending the Festival. She named as defendants, FQF, FQF's insurer Westchester Surplus Lines Insurance Company, John Doe, an alleged FQF employee, and the City of New Orleans.¹ She filed a supplemental and amending petition in July 2018, adding as defendants Audubon Institute and its alleged insurer XYZ Insurance Company.²

In June 2020, FQF and Audubon Institute filed a motion for summary judgment. Mrs. Beal filed an opposition, and the matter was heard in November 2020. On December 21, 2020, the trial court rendered a written judgment granting FQF and Audubon Institute's motion for summary judgment. Mrs. Beal subsequently filed the present appeal.

STANDARD OF REVIEW

Appellate courts review summary judgment de novo . Independent Fire Ins. Co. v. Sunbeam Corp. , 99-2181, p. 7 (La. 2/29/00), 755 So.2d 226, 230. Therefore, we apply the same standard the trial court uses in considering whether summary judgment is appropriate by determining if genuine issues of material fact exist. Francis v. Union Carbide Corp. , 12-1397, p. 3 (La. App. 4 Cir. 5/8/13), 116 So.3d 858, 860 (citing King v. Dialysis Clinic Inc. , 04-2116, p. 5 (La. App. 4 Cir. 1/4/06), 923 So.2d 177, 180 ). Summary judgment is granted when the pleadings, depositions, answers to interrogatories, admissions, and affidavits show there is no genuine issue of material fact. La. C.C.P. art. 966(A)(3)-(4). Facts are material if they "insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute." FMC Enterprises, L.L.C. v. Prytania-St. Mary Condominiums Ass'n, Inc. , 12-1634, p. 6 (La. App. 4 Cir. 5/15/13), 117 So.3d 217, 222 (citing Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751 ).

The moving party carries the initial burden of showing that no genuine issue of material fact exists, and "[a]ny doubt...regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits." Barbarin v. Dudley , 00-0249, p. 6 (La. App. 4 Cir. 12/20/00), 775 So.2d 657, 660.

Where the moving party does not bear the burden of proof at trial, the moving party need only show there is an absence of factual support for one or more essential elements of the claim. Smith v. Treadaway , 13-0131, p. 4 (La. App. 4 Cir. 11/27/13), 129 So.3d 825, 828. "The burden of proof does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist." Bush v. Bud's Boat Rental, LLC , 13-0989, p. 3 (La. App. 4 Cir. 2/26/14), 135 So.3d 1189, 1191 (citing Oakley v. Thebault , 96-0937, p. 3 (La. App. 4 Cir. 11/13/96), 684 So.2d 488, 490 ). At that point "[t]he burden then shifts to the adverse party who has the burden to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Bercy v. 337 Brooklyn, LLC , 20-0583, p. 3-4 (La. App. 4 Cir. 3/24/21), 315 So.3d 342, 345 (citing La. C.C.P. art. 966(D)(1) ); See also Encalade v. A.H.G. Sols., LLC , 16-0357, p. 9-11 (La. App. 4 Cir. 11/16/16), 204 So.3d 661, 666-67.

DISCUSSION

Assignments of Error

On appellate review, Mrs. Beal asserts three (3) assignments of error:

(1) the trial court erred when it granted FQF and Audubon Institute's motion for summary judgment, finding that FQF and Audubon Institute are entitled to immunity under the recreational use immunity statutes;

(2) the trial court erred when it did not find that FQF and Audubon Institute's actions fell under the exception for willful and malicious failure to warn against a dangerous condition, use, structure, or activity; and

(3) the trial court erred in finding the tree root, which caused Mrs. Beal to trip and fall, was an open and obvious hazard.

Recreational Use Immunity

Louisiana's recreational use immunity statutes grant immunity to owners, lessees, and occupants of property used for recreational purposes. La. R.S. 9:2791 provides in pertinent part:

A. An owner, lessee, or occupant of premises owes no duty of care to keep such premises safe for entry or use by others for hunting, fishing, camping, hiking, sightseeing, or boating or to give warning of any hazardous conditions, use of, structure, or activities on such premises to persons entering for such purposes, whether the hazardous condition or instrumentality causing the harm is one normally encountered in the true outdoors or one created by the placement of structures or conduct of commercial activities on the premises. If such an owner, lessee, or occupant gives permission to another to enter the premises for such recreational purposes he does not thereby extend any assurance that the premises are safe for such purposes or constitute the person to whom permission is granted one to whom a duty of care is owed, or assume responsibility for or incur liability for any injury to persons or property caused by any act of person to whom permission is granted.

La. R.S. 9:2795 states in part:

A. As used in this Section:

(1) "Land" means urban or rural land, roads, water, watercourses, private ways or buildings, structures, and machinery or equipment when attached to the realty.

(2) "Owner" means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.

(3) "Recreational purposes" includes but is not limited to any of the following, or any combination thereof: hunting, fishing, trapping, swimming, boating, camping, picnicking, hiking, horseback riding, bicycle riding, motorized, or nonmotorized vehicle operation for recreation purposes, nature study, water skiing, ice skating, roller skating, roller blading, skate boarding, sledding, snowmobiling, snow skiing, summer and winter sports, or viewing or enjoying historical, archaeological, scenic, or scientific sites.

(4) "Charge" means the admission price or fee asked in return for permission to use lands.

(5) "Person" means individuals regardless of age.

B. (1) Except for willful or malicious failure to warn against a dangerous condition, use, structure, or activity, an owner of land, except an owner of commercial recreational developments or facilities, who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:

(a) Extend any assurance that the premises are safe for any purposes.

(b) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owed.

(c) Incur liability for any injury to person or property caused by any defect in the land regardless of whether naturally occurring or man-made.

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E. (2)(a) The limitation of liability provided by this Section shall apply to any lands, whether urban or rural, which are owned, leased, or managed as a public park by the state or any of its political subdivisions and which are used for recreational purposes.

Mrs. Beal alleged that she tripped and fell over a raised tree root in Woldenberg Riverfront Park, a man-made park created on the levee and surrounding area on the Mississippi River and adjacent to the...