Moore v. Rice-Land Lumber Co.
| Decision Date | 05 November 2014 |
| Docket Number | No. CA 14–500.,CA 14–500. |
| Citation | 150 So.3d 657 |
| Parties | Christy L. MOORE, et al. v. RICE–LAND LUMBER CO., et al. |
| Court | Court of Appeal of Louisiana — District of US |
Daniel Elmo Broussard, Jr., Broussard, Halcomb & Vizzier, Alexandria, LA, for Plaintiffs/Appellants, Christy L. Moore, Patrick Cane Moore.
R. Todd Musgrave, Brent J. Carbo, Musgrave, McLachlan & Penn, L.L.C., New Orleans, LA, for Defendants/Appellees, Certain Underwriters at Lloyd's London, Larson & McGowin, Inc., H & H Hunting Club.
Alison A. Spindler Mansfield, Irwin, Fritchie, Urquhart & Moore, LLC, R. Todd Musgrave, Brent J. Carbo, Musgrave, McLachlan & Penn, L.L.C., New Orleans, LA, for Defendant/Appellee, Rice–Land Lumber Co.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
This case involves the application of Louisiana's Recreational Use Immunity Statutes in dismissing Christy Moore's claim for damages for the death of her husband who was shot while hunting. Christy argues that, even though Defendants fall within the protective provisions of the recreational use statutes, they agreed by the terms of a hunting license agreement to add certain safety obligations and requirements so that the immunity protection provided by the statutes was not applicable. She also claims that the immunity protection was not available in this case because Defendants' actions were willful and they earned a profit from the hunting operations. The trial court disagreed and granted summary judgment dismissing all defendants from the case. For the reasons set forth below, we affirm the judgment of the trial court.
Rice–Land Lumber Company owned approximately 50,000 acres in Louisiana in 2010 that it used for commercial timber operations. Rice–Land also leased this land for hunting purposes. During 2010, there were approximately forty to forty-one hunting leases on the land. Larson & McGowin, Inc. managed the timber properties of Rice–Land, including the hunting leases. H & H Hunting Club (H & H) leased 1,523 acres from Rice–Land. Patrick Kyle Moore, the decedent, was a member of H & H.
On the morning of December 4, 2010, Patrick brought his father to H & H as a guest to hunt with him. Patrick's father hunted in a box stand which was at the intersection of two fire lanes and a logging road. According to the Louisiana Department of Wildlife and Fisheries report, Patrick left his stand to go meet with his father. As he walked toward the blind on the road, he carried a folding bag chair over his shoulder, with the legs in the air, and his rifle over the other shoulder. At the time, he was wearing a hunter orange hat and a hunter orange vest, but due to the lack of light, the hunter orange was not visible. Thinking he was a buck, Patrick's father shot him, fatally wounding him.
Christy filed suit for wrongful death on both her behalf and her minor son's behalf against Rice–Land, Larson, H & H, and their insurer. Defendants filed a motion for summary judgment claiming statutory immunity under Louisiana's Recreational Use Immunity Statutes. A hearing on the motion was held on January 27, 2014. Agreeing with Defendants, the trial court granted their motion for summary judgment and entered judgment in their favor. Christy then filed the present appeal.
On appeal, Christy contends that the granting of the motion for summary judgment in favor of Defendants was in error because there is a question of fact as to whether they are entitled to the immunity granted by the recreational use statutes. Christy does not deny that Defendants would qualify for immunity under the recreational use statutes. Christy makes three different arguments as to why summary judgment was inappropriate arguing that there are questions of fact as to whether Defendants are entitled to the protection of the recreational use statutes. She first argues that immunity protection afforded by the recreational use statutes does not apply because Defendants assumed a duty by adding additional safety obligations and requirements in the lease. H & H also included these safety obligations in its club hunting rules. Secondly, Christy claims that H & H knowingly allowed its members to violate these rules and Rice–Land knew about the violations. Lastly, Christy claims that Rice–Land and/or Larson used the leased premises as a commercial recreational venture.
Louisiana Code of Civil Procedure Article 966, which governs summary judgment proceedings, was significantly amended in both the 2012 and 2013 legislative sessions. These amendments affect the burden of proof elements of the Article. At the time of this hearing, August 8, 2013, the 2013 version of Article 966 was in effect. After the amendment by 2013 La. Acts No. 391, § 1, Article 966(F)(1)(emphasis supplied) now provides that “A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time.” Furthermore, Article 966(B)(2) now provides that evidence considered by the trial court must be “admitted for purposes of the motion for summary judgment.” Article 966(F)(2) now provides that “[e]vidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection.” Furthermore, “[o]nly evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion.” La.Code Civ.P. art. 966(F)(2).
The amendments did not change the burden of proof applicable to a motion for summary judgment as set forth in Article 966(C)(2) :
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
“The Recreational Use Statutes were enacted to induce private owners of large acreages to open expanses of undeveloped lands for public outdoor, open land recreational purposes.” Monteville v. Terrebonne Parish Consol. Gov't, 567 So.2d 1097, 1098 (La.1990). Hayes v. Burlington Res. Oil & Gas Co., 09–1353, p. 3 (La.App. 3 Cir. 4/7/10), 34 So.3d 1009, 1012.
Louisiana Revised Statutes 9:2795 provides “a limitation of liability for landowners, including the state and its political subdivisions, of property used for recreational purposes.” Souza v. St. Tammany Parish,
11–2198, p. 4 (La.App. 1 Cir. 6/8/12), 93 So.3d 745, 747. However, the statute retains liability for (1) willful or malicious failure to warn against a dangerous condition, use, structure, or activity; (2) playground equipment or stands which are defective; and (3) intentional or grossly negligent acts by an employee of the public entity. La.R.S. 9:2795(B)(1), (E)(c), and (E)(d). We are also mindful that the recreational use statutes “are in derogation of [a] common or natural right and, therefore, are to be strictly interpreted, and must not be extended beyond their obvious meaning.” Richard v. Hall, 03–1488, p. 22 (La.4/23/04), 874 So.2d 131, 148.
The “HUNTING LICENSE AGREEMENT ” entered into on July 1, 2010, on behalf of Rice–Land by Larson with H & H provides that “[t]here shall be no hunting or shooting within 200 yards of any roads or occupied building.” Furthermore, the “H & H Hunt Club Rules” provide that “[m]embers must abide by all rules and regulations listed on Hunt Club lease contract.” Christy argues Defendants undertook a specific duty to ensure no hunting occurred near a road when they specifically included these provisions in the lease and rules. She claims that the recreational use statutes do not provide immunity when a party specifically assumes a duty. Christy claims that there was a clear violation of this duty by allowing the road in the instant case to be used as a shooting lane for a box stand.
In support of her position, Christy cites La.R.S. 9:2795(D) which provides:
Nothing in this Section shall be construed to relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this Section to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care.
In Johnson v. Lloyd's of London, 26,813 (La.App. 2 Cir. 4/5/95), 653 So.2d 226, writ denied, 95–1114 (La.6/23/95), 656 So.2d 1016, the plaintiff filed suit against a hunting club for injuries he sustained when he fell from his own deer stand. Like the present case, the plaintiff alleged that the club voluntarily assumed a duty of protection that it then failed to perform with due care, and that such a voluntary assumption of a duty takes the case out of the scope of the recreational use statutes.
In this case the three Defendants are the party with the fee interest, the manager who controlled the land, and the lessee of the land. All three parties are “owners” of the land pursuant to La.R.S. 9:2795(A)1 as opposed to “any person using the land of another” pursuant to Subsection (D). In addressing the application of La.R.S. 9:2795(D), the court in Johnson, 653 So.2d at 229, observed that “Subsection D was not intended as an additional exception to the immunity of an...
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