Castille v. Chaisson

544 So. 2d 670, 1989 WL 54980
CourtLouisiana Court of Appeal
DecidedMay 24, 1989
Docket88-135
StatusPublished
Cited by6 cases

This text of 544 So. 2d 670 (Castille v. Chaisson) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Castille v. Chaisson, 544 So. 2d 670, 1989 WL 54980 (La. Ct. App. 1989).

Opinion

544 So.2d 670 (1989)

Raymond CASTILLE and his Wife, Eva Zeno Castille, Plaintiffs-Appellants,
v.
Elina K. CHAISSON, United States Fidelity & Guaranty Company, ABC and XYZ Insurance Company and Lanier Cherry, Defendants-Appellees.

No. 88-135.

Court of Appeal of Louisiana, Third Circuit.

May 24, 1989.

*671 Orida B. Edwards, Lafayette, for plaintiffs-appellants.

McBride, Foret, Rozas and Leonard, Robert R. McBride, Lafayette, Michael Tomino, Jr., Lafayette, for defendants-appellees.

Before DOMENGEAUX, STOKER and KNOLL, JJ.

STOKER, Judge.

The question presented in this case is whether the immunity statutes exempting landowners from tort liability apply to an abandoned pond in a heavily wooded rural setting. In our opinion the statutes do apply to such premises.

This is a wrongful death and survival action case. Plaintiffs filed suit against defendants Elina Chaisson and her insurer, USF & G, for the drowning death of their 17-year-old son, Revis Castille, in a pond located on property owned by Chaisson in November 1985. Plaintiffs allege their causes of action in both strict liability and negligence. Plaintiffs subsequently added Lanier Cherry as a defendant, but the issue of Cherry's liability is not before us in this appeal.

Defendants denied liability and allege the contributory negligence of Revis Castille in trespassing on defendant's property and failing to use reasonable care and, alternatively, assumption of the risk by Revis Castille. Defendants Chaisson and USF & G then filed a motion for summary judgment based upon recreational use immunity under LSA-R.S. 9:2791 and 9:2795.[1]

*672 The trial court granted the motion for summary judgment and held that the property fell within the purview of LSA-R.S. 9:2791 and 9:2795. The plaintiffs appeal. We affirm.

FACTS

In November 1985 Revis Castille was hunting along railroad tracks near Scott, Louisiana. He left the track, entered some undeveloped wooded, private property and encountered a 20-by-60-yard man-made pond. The pond was thickly surrounded by trees and heavy undergrowth, was covered by algae and had steep sides of slick clay. There were a few pieces of an old fence around the pond. Revis fell into the pond and drowned, apparently because he was wearing heavy clothing and hip boots and the sides of the pond were steep and slick.

OPINION

Plaintiffs-appellants contend on appeal that the trial court erred in granting a summary judgment dismissing plaintiffs' suit against Chaisson and USF & G because there are two issues of material fact: whether the pond at issue constitutes an instrumentality or condition which one would normally encounter in the true outdoors and whether Revis Castille was an insured under the terms of the insurance policy issued by USF & G. Plaintiffs contend that the landowner immunity statutes do not apply to insurers of landowners.

The defendants have chosen to defend against this action at its threshold by invoking the immunity statutes. We do not have before us the question of whether defendants would be liable under the circumstances absent the immunity statutes.

CHAISSON'S IMMUNITY

A motion for summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966.

Under jurisprudential interpretation of LSA-R.S. 9:2791 and 9:2795, a landowner is granted immunity from liability when the property where the injury occurred is rural or semi-rural and the injury-causing instrumentality *673 is of the type generally found in the "true outdoors." The Louisiana Supreme Court discussed factors determining application of these statutes in Ratcliff v. Town of Mandeville, 502 So.2d 566 (La. 1987):

"This court has described two factors to consider when determining whether the immunity provided by R.S. 9:2791 and 9:2795 is applicable to a given set of facts. First, the property where the injury occurred must be an undeveloped, nonresidential rural or semi-rural land area. Second, the injury itself must be the result of recreation that can be pursued in the `true outdoors.' Keelen v. State of Louisiana, Department of Culture, Recreation and Tourism, 463 So. 2d 1287, 1290 (La.1985)."

We recently gave consideration to these factors in Broussard v. State, D.O.T.D., 539 So.2d 824 (La.App. 3d Cir.1989). The purpose of the recreational use immunity statutes is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes. Acts 1975, No. 615.

The parties have not disputed that the property involved is an undeveloped, nonresidential rural or semi-rural area. The thrust of plaintiffs' argument is that the pond is not the kind of condition or instrumentality normally encountered in the true outdoors because it is man-made and has features which allegedly render it more dangerous than any natural pond. These features are its straight, slippery sides, its long and narrow shape, its depth, its location in a heavily wooded area, the green algae which covered and concealed the water and the fact that there were no warning signs posted although it is an area where people customarily hunt.

The immunity statutes apply to defendant's status as a landowner, and it is as a landowner that defendant has been sued. The plain language of LSA-R.S. 9:2791(A) states that a rural or semi-rural landowner owes no duty of care to keep such premises safe for entry or use by others for hunting or to give warning of such an injury-causing condition as a pond. See LSA-R.S. 9:2791(C) and 9:2795(A)(1) ("land" or "premises" includes waters). The only exceptions to this rule are where the injury was willful or malicious or where the premises are used as a commercial recreational enterprise for profit. LSA-R. S. 9:2791(B). These exceptions have not been alleged. Plaintiffs rely solely on their contention that defendant was negligent in failing to warn hunters of the existence of the pond and of its allegedly hazardous condition. Under the language of the statutes, defendant has statutory immunity against tort liability and owes no duty to warn hunters of the existence of the pond or of its allegedly hazardous condition. See also Stuart v. City of Morgan City, 504 So.2d 934 (La.App. 1st Cir.1987).

The fact that the pond is man-made rather than natural is not relevant to application of the immunity statutes. In Keelen v. State, Dept. of Culture, Recreation and Tourism, 463 So.2d 1287 at 1290 (La.1985), the court stated:

"Examination of the characteristics of the land alone does not end the inquiry into whether the statutes apply to a particular factual situation. The injury-causing condition or instrumentality must also be scrutinized. Again, reference to the types of recreational activities specified in the statutes (hiking, boating, horseback riding, etc.) indicates that the legislature envisioned immunity for landowners who offer their property for recreation that can be pursued in the `true outdoors.' When the injury-causing condition or instrumentality is of the type normally encountered in the true outdoors, then the statutes provide immunity.

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Cite This Page — Counsel Stack

Bluebook (online)
544 So. 2d 670, 1989 WL 54980, Counsel Stack Legal Research, https://law.counselstack.com/opinion/castille-v-chaisson-lactapp-1989.