ANNETTE BEAL * NO. 2021-CA-0187
VERSUS * COURT OF APPEAL WESTCHESTER SURPLUS * LINES INSURANCE FOURTH CIRCUIT COMPANY, ET AL. * STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-01145, DIVISION “J-15” Honorable D. Nicole Sheppard, ****** Judge Regina Bartholomew-Woods ****** (Court composed of Judge Joy Cossich Lobrano, Judge Regina Bartholomew- Woods, Judge Paula A. Brown)
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, 40th Floor New Orleans, Louisiana 70139
COUNSEL FOR DEFENDANTS/APPELLEES
AFFIRMED DECEMBER 15, 2021 RBW
JCL
PAB
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.
1 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
1 The City of New Orleans filed a motion for summary judgment in September 2019, asserting it did not have control or custody over the area where Mrs. Beal allegedly tripped and fell. The City acknowledged that it owned the property in question, but the land on which the Aquarium of the Americas and Woldenberg Riverfront Park is situated is leased to the Audubon Park Commission, an independent agency of the City. The Audubon Park Commission contracted with Audubon Institute to administer, operate and maintain all the Commission’s facilities. In April 2016, the FQF contracted with the Audubon Institute to use Woldenberg Riverfront Park for the Festivals occurring in years 2016-2018. The City was not a party to the agreement. In
2 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
January 2020, in a consent judgment, the City’s motion for summary judgment was granted and the City was dismissed from the litigation with prejudice. 2 In April 2019, Audubon Institute filed a cross claim against FQF and Westchester and a third- party demand against National Casualty Company, alleging that Audubon Institute was an additional named insured under the liability policy issued to FQF. Audubon Institute voluntarily dismissed its cross claim against FQF and Westchester in May 2019, and voluntarily dismissed its third-party demand against National Casualty Company in July 2019, after FQF and Westchester agreed to provide a defense for and indemnification to Audubon Institute.
3 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. Treadway, 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.
4 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
5 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.
***
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.
6 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 Aquarium of the
Americas. The park is open to the public and used for walking, jogging,
picnicking, and as a walkway from the French Quarter to the Aquarium of the
Americas and Riverwalk. The park includes benches and sitting areas, where the
public can view the Mississippi River. As contemplated by the recreational
immunity statutes, the property falls within the definition of a public recreational
area. Mrs. Beal contends that FQF and Audubon Institute are not immune from
liability because the statutes were not intended to include, and do not include,
immunity for a music festival. She asserts that the statutes are only meant to apply
to activities that occur in the true outdoors.
Since the enactment of the immunity statutes, legislative amendments have
expanded the scope of immunity for protected classes and activities. See Richard
v. Hall, 03-1488, p. 25-28 (La. 4/23/04), 874 So.2d 131, 149-51 (examining the
legislative history in the creation of the recreational use immunity statutes and the
interplay between La. R.S. 9:2791 and La. R.S. 9:2795). Jurisprudence
interpreting the recreational use immunity statutes recognizes that the list of
activities set forth in the definition of “recreational purposes” is nonexclusive and
includes activities that are not specifically listed. Doyle v. Lonesome Dev., Ltd.
Liab. Co., 17-0787, p. 11 (La. App. 1 Cir. 7/18/18), 254 So.3d 714, 722
(concluding that soccer was included within the definition of “recreational
7 purposes” and qualified as a recreational activity); See, e.g. Webb v. Parish of St.
Tammany, 06-0849, p. 6 (La. App. 1 Cir. 2/9/07), 959 So.2d 921, 925 (recognizing
softball was a recreational activity even though plaintiff was injured after the game
and was exiting the park).
Additionally, jurisprudence demonstrates that the statutes can apply even
when the person injured is not a participant in the sport. In Richard v. La.
Newpack Shrimp Co., Inc., 11-309 (La. App. 5 Cir. 12/28/11), 82 So.3d 541, the
Fifth Circuit considered whether the immunity statute applied to preclude liability
for injuries sustained when the plaintiff fell into a hole on the levee which led to a
boating ramp. The plaintiff was walking on the levee to reach the boating ramp,
where she intended to board a boat. The court concluded that the statute applied,
stating “La. R.S. 9:2795(A)(3) expansively defines ‘recreational purposes’ as
including but not limited to the enumerated list….” Id., 11-309, p. 9, 82 So.3d at
546. Therefore, the court found “Mrs. Richard’s activity was covered by that
omnibus clause ‘includ[ing] but not limited to.’ La. R.S. 9:2795(A)(3).” Id. The
Richard court reasoned that “[t]he ‘including, but not limited to’ language makes
clear that the Legislature did not intend that the list of enumerated activities was
exhaustive.” Id. The court further explained:
The plain wording of the Immunity Act only requires that the lessee permits with or without charge any person to use his land for recreational purposes. La. R.S. 9:2795(B)(1). The statute does not require that the injury arise out of the recreational activity per se, as long as the person injured was on the property for a recreational purpose. Webb v. Parish of St. Tammany, 06-0849, p. 6 (La. App. 1 Cir. 2/9/07), 959 So.2d 921, 925, writ denied, 07-0521 (La. 4/27/07), 955
8 So.2d 695 (citation omitted).
The sole purpose of Mrs. Richard’s walk over the defendant’s levee property was to gain access to the boat to use for recreational purposes. The walk was an integral part of the recreational activities. Assuming non- recreational use of the levee for commercial fishing did take place, it did not affect the recreational use in question. As we see it, the inquiry in any given case is whether the permitted use in question is for recreational purposes on a noncommercial basis. Broussard v. Dep’t of Transp. & Dev., State of La., 539 So.2d 824, 831 (La. App. 3 Cir.1989).
Id., 11-309, p. 9-11, 82 So.3d at 546-547 (Emphasis added).
Mrs. Beal points to the Fifth Circuit’s decision in Glorioso v. City of Kenner,
19-298 (La. App. 5 Cir. 12/18/19), 285 So.3d 601, in support of her contention that
the Festival is not a recreational activity within the scope of the recreational use
immunity statutes. In Glorioso, the plaintiff’s five-year-old daughter was attending
a gymnastics class at a gym owned by the City of Kenner and operated by its Parks
and Recreation Department. During the class, the plaintiff’s daughter slid off a
stage and cut her right thigh and buttock on a broken metal electrical box located at
the front of the stage. The plaintiff sought damages on behalf of his daughter,
alleging negligence and premises liability. The City of Kenner filed a motion for
summary judgment, arguing they were immune from liability pursuant to La. R.S.
9:2795. The trial court granted summary judgment, and on appeal, the Fifth
Circuit reversed the trial court’s judgment.
On appeal, the plaintiff averred that the trial court erroneously interpreted
the language of the recreational use immunity statutes to include gymnastics within
the definition of recreational purposes and to include any building, whether
“attached to the realty” within the definition of land. The City of Kenner argued
9 that urban land and buildings, including the gym at issue, were included under the
statute; and further, the gym was used for recreational purposes under the
“unlimited omnibus clause.” In reversing the trial court’s granting of summary
judgment, the Fifth Circuit explained:
The activities enumerated in the statute are clearly activities that are typically done in, and require, the true outdoors, such as fishing, hunting, and camping. And while a very limited few of the activities enumerated in the statute, typically done in the true outdoors, might conceivably also be done indoors, this does not evidence an intent on the part of the legislature to expand the immunity of the statute to include all recreational activities regardless of whether they are typically done outdoors or indoors. In our opinion, the list of enumerated activities evidences a clear intent of the legislature to grant immunity for those recreational activities in which one engages in the true outdoors. Strictly construing this statute, as we are required to do, we find that gymnastics is not a recreational purpose as contemplated by La. R.S. 9:2795(A)(3) and as required under Subsection E(2)(a) for the grant of immunity for Kenner.
Glorioso, 19-298, p. 5-6, 285 So.3d at 605 (Emphasis in original).
Glorioso is distinguishable from the case before us. The activity in which
the plaintiff’s daughter was involved when she was injured was conducted inside a
building. The Glorioso court noted that gymnastics was not a sport that was
generally conducted outdoors, and in fact, the plaintiff’s daughter was indoors
when the injury occurred. Cf., Webb, 06-0849, p. 6, 959 So.2d at 925 (finding
softball was a recreational activity even though plaintiff was injured after the game
when he was exiting the park). In this case, both the musical festival Mrs. Beal
was attending and the injury she sustained when she tripped and fell over a tree
root occurred outdoors. As the First and Fifth Circuits note, the statute does not
require that the injury arise out of the recreational activity per se, as long as the
10 person injured was on the property for a recreational purpose. Id.; Richard v. La.
Newpack Shrimp Co., 11-309, p. 10, 82 So.3d at 547. Although a music festival
can occur indoors, there are numerous festivals in Louisiana which occur outdoors.
The issue becomes whether attending a music festival is considered an event
generally held in the true outdoors. In that there are no Louisiana cases which
have previously addressed this issue, the matter is one of first impression.
Two states that have considered this issue include Washington and
Wisconsin. In Matthews v. Elk Pioneer Days, 64 Wash. App. 433, 824 P.2d 541
(1992), the plaintiff sued for injuries she sustained when a canopy fell on her while
attending the Elk Pioneer Days Festival, put on by a Washington nonprofit
corporation. “The festival is held outdoors on the grounds of the Elk Community
Church…and consists of entertainment, competitions, and demonstrations. There is
no charge for the event, although the public may purchase food or arts and crafts
from various concessionaires who are charged a nominal fee by the Committee….”
Id., 64 Wash. App. at 435; 824 P.2d at 541. The plaintiff argued, in opposition,
that “outdoor recreation” under Washington’s recreational use immunity statute,
RCW 4.24.210, did not include the activity of attending a weekend celebration or
watching entertainment on an outdoor stage. The Matthews court discussed and
distinguished a Wisconsin case cited by defendant.
In Hall v. Turtle Lake Lions Club, 146 Wis.2d 486, 431 N.W.2d 696 (Ct.
App. 1988), the plaintiff was injured when he stepped into a hole on the grounds of
the Turtle Lake Village Park during a fair sponsored by the Turtle Lake Lions
Club. The Wisconsin court found that statutory immunity applied, relying upon
the statement of legislative intent that “where substantially similar circumstances
or activities [to those enumerated in the statute] exist, this legislation should be
11 liberally construed in favor of property owners to protect them from liability.”
Hall, 431 N.W.2d at 697 (quoting section 1 of Wis. Act 418). The court concluded
that a fair is “substantially similar” to several of the examples of the kinds of
activities set forth in the definition of recreational activity: “nature study,” “sight-
seeing,” as well as “any other...educational activity.” Hall, 431 N.W.2d at 697
(internal quotations omitted). The Matthews court distinguished Hall on the basis
that the statutes differed in the type of construction that should be given to the
language of the statutes. The court noted that Washington’s statute, RCW
4.24.200–.210, did “not provide for a policy of liberal construction in favor of
property owners.” Matthews, 64 Wash. App. at 437, 824 P.2d at 543. The court
found that festival activity is not similar to the examples of outdoor recreation
given in the Washington statute. The court concluded that the Washington
recreational use statute should be strictly construed. Id., 64 Wash. App. at 439;
824 P.2d at 544. Applying a strict construction, the Washington court found that
the festival was not “outdoor recreation” under the statute and reversed the trial
court’s granting of the defendant’s motion for summary judgment. Id.
In Richard v. Hall, the Louisiana Supreme Court expressly stated that “[t]he
enactment of La. [R.S.] 9:2795, a second more expansive immunity statute,
evidences an intent on the Legislature’s part that these statutes are to grant a broad
immunity from liability. The amendments to the statutes indicate the Legislature’s
will to expand the immunity.” Id., 03-1488, p. 28, 874 So.2d at 151. Like
Wisconsin’s recreational use statute, Louisiana’s recreational use immunity
statutes should be interpreted broadly. We therefore find this case more akin to
Hall than Matthews.
The Festival was created with the purpose of promoting the French Quarter
12 and the City’s culture and heritage. The Festival is a free event where local
musicians perform, and local food/beverage vendors sell their product to the
public. The Festival is intended to take place outdoors and feature the natural and
architectural aspects of the French Quarter. Woldenberg Riverfront Park, the area
where the Beals were attending the Festival, was created, in part, for the public to
enjoy the scenic views of the Mississippi River. Further, when inclement weather
has threatened the event, the Festival is shortened, canceled, or rescheduled. The
Festival’s events are not moved to an indoor location. Mr. Beal acknowledged that
in the past there were times they did not attend the Festival because of the weather.
La. R.S. 9:2795(A)(3) expansively defines recreational purposes as including but
not limited to the enumerated list. Among the listed activities is “viewing or
enjoying historical, archaeological, scenic, or scientific sites.” La. R.S.
9:2795(A)(3). Because the Festival is intended to take place outdoors and features
the natural and architectural aspects of the French Quarter, including the
Mississippi River, along which Woldenberg Riverfront Park is located, we find
that the definition of recreational purposes is broad enough to include the activities
normally associated with attending an outdoor music festival, like the Festival.
Therefore, we find the festival is covered under Louisiana’s recreational use
immunity statutes.
Willful and/or Malicious Failure to Warn
Mrs. Beal, in her second assignment of error, contends that even if this Court
determines that the recreational use immunity statutes apply, FQF and Audubon
Institute are liable for her injuries because their failure to warn of a dangerous
condition was willful and/or malicious.
13 Louisiana Revised Statute 9:2795(B)(1) states that a defendant is not entitled
to immunity where there is “willful or malicious failure to warn against a
dangerous condition, use, structure, or activity.” Once a defendant has established
that it is entitled to immunity under La. R.S. 9:2795, the burden of establishing a
malicious or willful failure to warn of a dangerous condition shifts to the plaintiff.
Richard v. La. Newpack Shrimp Co., Inc., 11-309, p. 12, 82 So.3d at 548 (citing
DeLafosse v. Vill. of Pine Prairie, 08-0693, p. 5 (La. App. 3 Cir. 12/10/08)) 998
So.2d 1248, 1252). “A failure to warn of a dangerous condition connotes a
conscious course of action, and is deemed willful or malicious when action is
knowingly taken or not taken, which would likely cause injury, with conscious
indifference to consequences thereof.” Robinson v. Jefferson Parish Sch. Bd., 08-
1224, p. 18 (La. App. 5 Cir. 4/7/09), 9 So.3d 1035, 1046. A defendant owes a duty
to discover any unreasonably dangerous condition on the premises and either
correct it or warn potential victims of its existence. Doyle, 17-0787, p. 17, 254
So.3d at 725. However, “this duty does not extend to potentially dangerous
conditions which should have been observed by an individual in the exercise of
reasonable care or which are as obvious to a property owner as to a visitor.” Id.
In DeLafosse, the plaintiff argued that the defendant’s employees were
grossly negligent in the placement and configuration of the bleachers at the
ballpark and in maintaining only a four-foot fence to protect the patrons. The
plaintiff argued that the defendant knew or should have known that a four-foot
fence would not contain flying baseballs. The Third Circuit found that the plaintiff
did not present any evidence that would support her argument that the defendant
was grossly negligent in the configuration of the stands or in the maintenance of
the four-foot fence. Similarly, the court in Richard v. La. Newpack Shrimp Co.,
14 Inc., found that considering the plaintiff’s testimony that she was aware of the ruts
in the levee before the accident, the defendant’s duty did not extend to the alleged
obvious potentially dangerous condition.
Mrs. Beal points to the deposition testimony of Abraham Gaulton (“Mr.
Gaulton”), the operations manager for FQF, and the affidavit of her expert witness
Brian Avery as evidence that FQF and Audubon Institute had a duty to warn of the
alleged dangerous condition. Mr. Gaulton stated in his deposition testimony that
he and an employee of Audubon Institute would inspect the venue property prior to
moving on the site. FQF prepared the layout of the event and Audubon Institute
approved it, including the location for the portable toilets. Audubon Institute
provided maintenance and grounds keeping year-round.
Mr. Avery attested that he was experienced in the development and
implementation of management practices, safety directives, use of safety
devices/equipment, identification, and protection processes to eliminate
environmental conditions, assessment of facility appropriateness, staff/patron
abilities, and the duty to supervise. Upon reviewing the pleadings, depositions,
contracts, discovery, and photographs, he opined that the pathway provided for
access to the portable toilets was not a reasonably safe walking surface for patrons
attending an event to regularly traverse to access the portable toilets. He
concluded that the defendants:
…increased the risk of hazards inherent to the environment or activity by the placement of the port-o- johns; . . . failed to establish pathways to reduce patron exposures and risks; . . . failed to factor the proper placement of event elements in order to unnecessarily expose patrons to known and foreseeable hazards resulting from the use of unimproved pathways; . . . and failed to provide clear indicators and warnings of the potential for trip hazards upon ingress and egress of the
15 port-o-johns in order for patrons to be reminded to observe for hazards within the unimproved pathway.
The deposition testimony of Mr. Gaulton and the affidavit of Mr. Avery
produced by Mrs. Beal does not support any finding that FQF and Audubon
Institute’s alleged failure to warn of the alleged defect was willful or malicious.
There was no evidence in the record to suggest that FQF and Audubon Institute
took a conscious course of action likely to cause injury with an indifference to the
consequences. Mr. Gaulton testified that FQF and Audubon Institute worked
together to determine the layout for the festival. He stated that the Audubon
Institute provided maintenance and grounds-keeping year-round for Woldenberg
Riverfront Park. Mr. Avery’s opinion that the pathway provided for access to the
portable toilets was not a reasonably safe walking surface for patrons attending the
event did not reference any specific facts to support a finding of intentional or
grossly negligent conduct. Further, as FQF and Audubon Institute point out, Mrs.
Beal walked past the tree on her way to the portable toilets without incident; she
acknowledged she was not attentive to where she was walking; and she admitted
that she was more concerned about moving about the groups of people attending
the festival. In the absence of evidence to demonstrate FQF and Audubon Institute
acted in conscious disregard of the alleged dangerous condition, Mrs. Beal has
failed to meet her burden of proof.
Open and Obvious Hazard
In her final assignment of error, Mrs. Beal asserts that the trial court erred in
finding that the tree root was an open and obvious hazard. However, because we
find FQF and Audubon Institute are immune from liability pursuant to Louisiana’s
recreational use immunity statutes and find summary judgment appropriate on this
16 basis, we pretermit discussion of whether the alleged defect was an open and
obvious hazard.
CONCLUSION
Accordingly, like the trial court, we find FQF and Audubon Institute are
immune from liability pursuant to La. R.S. 9:2791 and La. R.S. 9:2795. In light of
our finding of statutory immunity barring the instant suit, we pretermit discussion
of whether the alleged defect was open and obvious. Therefore, the trial court’s
granting of summary judgment in favor of FQF and Audubon Institute was
appropriate.
DECREE
For the foregoing reasons, we affirm the trial court’s judgment granting
summary judgment in favor of FQF and Audubon Institute and dismissing Mrs.
Beal’s claims against them.
AFFIRMED