Sutter v. Audubon Park Com'n

• Decision Date: 07 June 1988
• Docket Number: No. CA-8684,CA-8684
• Citation: 533 So.2d 1226
• Parties: Malcolm SUTTER, II v. AUDUBON PARK COMMISSION, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 1226

533 So.2d 1226

Malcolm SUTTER, II v. AUDUBON PARK COMMISSION, et al.

No. CA-8684.

Court of Appeal of Louisiana Fourth Circuit.

June 7, 1988.

Rehearing Denied Dec. 14, 1988.

Frank J. D'Amico, Vincent J. Glorioso, Jr., Ronald A. Welcker, Dennis J. Phayer, Glorioso, Welcker & Zaunbrecher, New Orleans, for plaintiff-appellee Malcom Sutter, II.

William A. Porteous, III, John J. Hainkel, Jr., Michael K. Fitzpatrick, Porteous, Hainkel, Johnson & Sarpy, New Orleans, and Richard B. Nevils, Baton Rouge, for defendant-appellant Audubon Park Com'n and Southeastern Fidelity Ins. Co.

William J. Guste, Jr., Atty. Gen., Kendall L. Vick, Asst. Atty. Gen., New Orleans, for State of La., amicus curiae.

Okla Jones, II, City Atty., New Orleans, for City of New Orleans, amicus curiae.

Frank J. Stich, Jr., Sessions, Fishman, Rosenson, Boisfontaine Nathan & Winn, New Orleans, for New Orleans City Park Improvement Assoc., amicus curiae.

Before SCHOTT, KLEES and WILLIAMS, JJ.

KLEES, Judge.

On October 1, 1981, plaintiff Malcolm Sutter was shot by an unknown assailant in a restroom facility of Audubon Park and rendered a paraplegic. He sued the Audubon Park Commission, and one of its insurers, Southeastern Fidelity Insurance Company, as well as the city of New Orleans and the state of Louisiana, alleging that their negligence was a legal cause of his shooting.

The state of Louisiana was dismissed as a defendant prior to trial on the basis that the city of New Orleans is the owner of Audubon Park. The case was tried against the remaining defendants in December of 1986. At the conclusion of the plaintiff's case, the trial judge dismissed the city of New Orleans on the grounds that plaintiff had not shown any right to relief against it, pursuant to Louisiana Code of Civil Procedure article 1672. This dismissal has not been appealed. At the end of trial, the court found the Audubon Park Commission and its insurer liable to the plaintiff in the amount of $4,210,282.53. Defendants now appeal that judgment.

Audubon Park, which contains approximately four hundred acres, is located in a highly populated residential area of New Orleans near two major universities. The park is bounded by Walnut Street, Exposition Boulevard, St. Charles Avenue, and the Mississippi River. Magazine Street, a main traffic artery of the city, runs through the park from beyond Exposition to Walnut, dividing it roughly in half. The area of the park between Magazine Street and the river, which contains the zoo, is referred to as the "back part"; whereas, the area between Magazine and St. Charles Avenue is known as the "front part." The front part contains the lagoon, bandstand, golf course, open recreation areas and several shelter houses, including Shelter No. 12, where Mr. Sutter was assaulted.

Shelter No. 12, which contains a restroom facility, is located about fifty feet from Walnut Street and about one hundred fifty feet from West Drive, the nearest interior park roadway. There is a paved walkway connecting Shelter No. 12 to the sidewalk on Walnut. On the day in question, plaintiff Sutter developed the need of a restroom while driving down Magazine Street at about 3:00 in the afternoon, after having visited a sick friend. As a frequent park user, Mr. Sutter was familiar with the location of the restrooms. He therefore turned on Walnut Street, parked his car, and walked to Shelter No. 12. Inside the restroom, he was confronted by an unknown gunman who first demanded his wallet and then shot Sutter in the chest before Sutter could comply with the demand. At the time of the shooting, Mr. Sutter was fifty-six years old, divorced and the father of two grown children. A veteran of both World War II and the Korean War, Mr. Sutter had been employed for fourteen years by Woodward, Wight and Company, Ltd., as manager of the Returned Goods Department at a salary of $1,100.00 per month. The shooting left him a paraplegic, causing a complete loss of sensory, neurological, and motor functions below his nipple area.

The entity which has custody and control of Audubon Park is the Audubon Park Commission. The Commission operates the park and has enacted rules and regulations concerning the use of park grounds and facilities. Sometime in the 1960's, the Commission decided to have constructed throughout the park several concrete structures housing restroom facilities, among which is Shelter No. 12. The Commission also maintains (and had maintained since well prior to 1981) a staff of security persons to enforce park regulations, provide information to visitors, and protect park property and visitors.

Much of the trial testimony focused upon this security staff and its performance. After hearing all the evidence, the trial judge decided that the Audubon Park Commission had a duty to provide adequate security to the plaintiff, which duty was breached, and that the breach was a legal cause of plaintiff's injury. The court also held that the Commission is not immune from liability to the plaintiff by virtue of La.R.S. 9:2795, which grants such immunity to owners of "property used primarily for recreational purposes."

On appeal, the Commission raises three alternative arguments: (1) the trial court erred in holding that R.S. 9:2795 does not apply to this case; (2) the trial court erred in finding the Commission liable for plaintiff's shooting; and (3) The trial court erred in awarding excessive damages.

I. Immunity

R.S. 9:2795 states:

Sec. 2795. Limitation of liability of landowner of property used for recreational purposes; property owned by the Department of Wildlife and Fisheries

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.

(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, picniking, 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.

(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 incurred by such person.

(2) The provisions of this Subsection shall apply to owners of commercial recreational developments or facilities for injury to persons or property arising out of the commercial recreational activity permitted at the recreational development or facility that occurs on land which does not comprise the commercial recreational development or facility and over which the owner has no control when the recreational activity commences, occurs, or terminates on the commercial recreational development or facility.

C. Unless otherwise agreed in writing, the provisions of Subsection B shall be deemed applicable to the duties and liability of an owner of land leased for recreational purposes to the federal government or any state or political subdivision thereof or private persons.

D. 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 this use of such land and in his activities thereon, or from the legal consequences of failure to employ such care.

E. The limitation of liability provided in this Section shall apply to any lands or waterbottoms owned, leased, or managed by the Department of Wildlife and Fisheries, regardless of the purposes for which the land or waterbottoms are used, and whether they are used for recreational or nonrecreational purposes.

Defendants contend that the trial court should have granted immunity under the statute because Audubon Park is an area used for recreational purposes, including many of the activities listed in 2795(A)(3). This argument ignores the fact that our state Supreme Court, in interpreting the statute, has recently limited the definition of "recreational purposes" to conform to what the Court views as the legislative intent. In Keelen v. State, 463 So.2d 1287 (La.1985), the Court held that the statute afforded no immunity to the state against a wrongful death action arising out of a drowning that occurred in a swimming pool in Fountainbleau State Park. In that case, noting that the purpose of the statute is "to encourage owners of land to make land and water areas available to the public for recreational purposes" (See 1975 La.Acts, No. 615, Sec. 1), the Court found that the law conferred immunity only upon owners of "undeveloped, nonresidential rural or semi-rural land areas." 463 So.2d at 1290. Furthermore, the Court stated that the characteristics of the land alone do not determine whether the statute applies; the injury-causing condition or instrumentality must also be scrutinized. In this regard, the Court stated:

"When the injury-causing condition or instrumentality is of the type normally encountered in the true outdoors, then the statutes provide immunity. Conversely, when the instrumentality, whether found in an urban or rural...