Monteville v. Terrebonne Parish Consol. Government
| Decision Date | 14 November 1989 |
| Docket Number | No. 88,88 |
| Citation | 554 So.2d 692 |
| Parties | Carl MONTEVILLE v. TERREBONNE PARISH CONSOLIDATED GOVERNMENT. CA 1458. 554 So.2d 692 |
| Court | Court of Appeal of Louisiana — District of US |
Joseph L. Waitz, Houma, for plaintiff and appellant-Carl Monteville.
Robert Cuccia, Houma, for defendant and appellee-Terrebonne Parish Consol. Government.
Before CARTER, SAVOIE and ALFORD, JJ.
This is a tort suit. Plaintiff, Carl Monteville, filed a petition naming as defendants, Terrebonne Parish Consolidated Government and its liability insurer, Great Plains Insurance Company. Defendant, Terrebonne Parish Consolidated Government, filed a motion for summary judgment which was granted by the trial court. Plaintiff appeals the judgment.
Plaintiff alleges he sustained personal injury and damage to his trailer while launching a boat at the Cocodrie boat launch which is operated by the Terrebonne Parish Consolidated Government. Plaintiff backed his boat trailer down the ramp at the launch and apparently the trailer became caught in a hole on the underwater portion of the ramp. As the trailer was pulled out of the hole, it was damaged and, as a result, the sudden jerk of the truck caused by its release from the hole allegedly injured the plaintiff.
The defendant's motion for summary judgment was granted on the basis of the applicability of the recreational immunity statutes, LSA-R.S. 9:2791 and 9:2795.
LSA-R.S. 9:2791 provides:
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. If such an owner, lessee or occupant give 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.
B. This Section does not exclude any liability which would otherwise exist for deliberate and willful or malicious injury to persons or property, nor does it create any liability where such liability does not now exist. Furthermore the provisions of this Section shall not apply when the premises are used principally for a commercial, recreational enterprise for profit; existing law governing such use is not changed by this Section.
C. The word 'premises' as used in this Section includes lands, roads, waters, water courses, private ways and buildings, structures, machinery or equipment thereon. Acts 1964, No. 248, Secs. 1-3.
LSA-R.S. 9:2795 provides in pertinent part:
A. As used in this Section:
(1) 'Land' means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty.
....
(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 vehicle operation for recreation purposes, nature study, water skiing, ice skating, sledding, snow mobiling, snow skiing, summer and winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites.
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 incurred by such person.
On appeal plaintiff asserts the following assignments of error:
1. The trial court erred in granting summary judgment.
2. The trial court erred in finding Louisiana Revised Statutes 9:2791 and 9:2795, applicable to this matter.
3. The trial court erred in finding that the accident in question did not fall into the exception to the immunity statutes for willful or malicious failure to warn.
We elect to treat the assignments in the following order.
Defendant submitted a lease and an affidavit to support its contention that the property in question was not used principally for a "commercial, recreational enterprise for profit." The lease, by which The Terrebonne Parish Consolidated Government acquired the land for the launch, specifies the property is to be used solely for a non-profit public boat launch. The affidavit, by the Chief Administrative Officer for the Terrebonne Parish Consolidated Government, states that the launch has been used solely as a non-profit public boat launch and no fee is or has been charged for its use. We find plaintiff's unsupported allegation that the launch may be used by commercial fishermen so insubstantial as to present no genuine issue of material fact as to this element of the statutes. City of Baton Rouge v. Cannon, 376 So.2d 994 (La.App. 1st Cir.1979).
The supreme court in Keelen v. State Department of Culture, Recreation and Tourism, 463 So.2d 1287 (La.1985), set forth the two further requirements which must be met in order for the statutes limiting liability to be applied. First, the locale must be categorized as an undeveloped, non-residential rural or semi-rural area. Second, the injury causing condition or instrumentality must be of the type normally encountered in the true outdoors.
As to the locale requirement, defendant submitted a plat of the Cocodrie...
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Monteville v. Terrebonne Parish Consol. Government
...under the Recreational Use Statutes and dismissing plaintiff's suit. The court of appeal affirmed. Monteville v. Terrebonne Parish Consolidated Gov't, 554 So.2d 692 (La.App. 1st Cir.1989). We reverse. The Recreational Use Statutes were enacted to induce private owners of large acreages to o......
- Monteville v. Terrebonne Parish Consol. Government