George Peter Marse, III and Hilary Marse Individually and on behalf of their minor daughter, Annabella Marse v. Red Frog Events, LLC, First Specialty Insurance Corporation, James River Insurance Company, Peterson Builders, North South Renovations, Marcus M. Edwards, Daniel L. Lauber, Megan E. Gaseor, Mary A. Kreke, Emily A. Littlejohn, ABC Insurance Company, XYZ In

• Court: Louisiana Court of Appeal
• Decided: September 18, 2020
• Docket: 2019CA1525, 2019CA1528, 2019CA1527, 2019CA1526
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 1525

GEORGE PETER MARSE, III AND HILARY MARSE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR DAUGHTER, ANNABELLA MARSE AN VERSUS

RED FROG EVENTS, LLC, FIRST SPECIALTY INSURANCE CORPORATION, JAMES RIVER INSURANCE COMPANY, PETERSON BUILDERS, NORTH SOUTH RENOVATIONS, MARCUS M. EDWARDS, DANIEL L. LAUBER, MEGAN E. GASEOR, MARY A. KREKE, EMILY A. LITTLEJOHN, ABC INSURANCE COMPANY, XYZ INSURANCE COMPANY, THE PARISH OF WEST FELICIANA, DEPARTMENT OF PARKS AND RECREATION

Consolidated with

2019 CA 1526

VANESSA WEST

VERSUS

RED FROG EVENTS, LLC, ABC INSURANCE COMPANY, PETERSON BUILDERS FRAMING CONTRACTORS, LLC, DEF INSURANCE COMPANY, NORTH SOUTH RENOVATIONS, INC., GHI INSURANCE COMPANY, AND PARISH OF WEST FELICIANA

2019 CA 1527

BRYAN SAMPSON

RED FROG EVENTS, LLC, ET AL. Consolidated with

2019 CA 1528

OLUWAFEYISAYO AKINKUGBE

RED FROG EVENTS, LLC, ET AL.

Judgment Rendered: SEP 18 2020

APPEALED FROM THE TWENTIETH JUDICIAL DISTRICT COURT, IN AND FOR THE PARISH OF WEST FELICIANA STATE OF LOUISIANA DOCKET NUMBERS 23 03 8, C/ W 23047, C/ W 23078, C/ W 23079 DIVISION " A"

HONORABLE KATHRYN E. JONES, JUDGE

Leonard L. Levenson Attorneys for Plaintiffs/ Appellants Christian W. Helmke George Peter Marse, III and Donna R. Barrios Hilary Marse, Individually and on New Orleans, Louisiana Behalf of Their Minor Daughter, Annabella Marse

Max J. Cohen Attorneys for Defendant/ Appellee Melanie C. Lockett West Feliciana Parish, Department Abigail F. Gerrity of Parks and Recreation New Orleans, Louisiana

BEFORE: McDONALD, THERIOT, and CHUTZ, JJ.

2 McDonald, J.

In this case, a father and his minor daughter were injured while participating

in an extreme obstacle course race held on land owned by the West Feliciana

Parish Department of Parks and Recreation ( the Department), and leased by Red

Frog Events, LLC. The mother and father filed suit against numerous parties,

including the Department. Their suit was consolidated with three similar suits.

The Department filed an exception of no cause of action based upon La. R.S.

9: 2795, the recreational use immunity statute. The trial court sustained the

exception and dismissed the claims of all the plaintiffs in the consolidated cases

against the Department! This appeal followed.2 After de novo review, we affirm.

FACTS AND A PROCEDURAL HISTORY

On October 8, 2016, George Peter Marse, I11, and his minor daughter,

Annabella Marse, were paid participants in an obstacle course race called the

Warrior Dash, hosted by Red Frog Events, LLC. While Mr. Marse and Annabella

Marse were traversing an obstacle known as the Diesel Dome, the structure

collapsed, and Annabella was injured.

On September 8, 2017, Mr. Marse and his wife, Hilary Marse, ( the Marses)

filed a petition for damages individually and on behalf of Annabella. They named

as defendants Red Frog Events, LLC, its liability insurers, First Specialty

Insurance Corporation and James River Insurance Company, Peterson Builders

Framing Contractors, LLC (both its North Carolina and South Carolina iterations),

its insurer, ABC Insurance Company, North South Renovations, Inc., its insurer,

XYZ Insurance Company, Marcus M. Edwards, Daniel L. Lauber, Megan E.

No opposition to the exception was filed by plaintiffs in the other consolidated cases, Vanessa West, Bryan Sampson, and Oluwafeyisayo Akinkugbe.

z The Marses first filed an application for supervisory writs with this court. This court remanded the matter to the trial court with instructions to grant an appeal pursuant to the notice of intent to seek supervisory writs. Marse v. Red Frog Events, LLC, et al., 2019 CW 0554 ( La. App. 1 Cir. 8/ 5/ 19). 3 Gaseor, Mary A. Kreke, and Emily A. Littlejohn, employees or agents of Red

Frog, and the Department.

On October 17, 2018, the Department filed an exception of no cause of

action, asserting statutory immunity pursuant to La. R.S. 9: 2795. After a hearing,

the trial court sustained the exception and dismissed all of plaintiffs' claims in the

consolidated cases against the Department, with prejudice. The judgment was

signed on March 8, 2019. The Marses have appealed that judgment. On appeal,

the Marses assert that the trial court erred in granting the exception of no cause of

action and in finding that the petition failed to state a valid cause of action against

the Department, and that the trial court failed to apply the proper legal standard in

hearing and deciding the exception, and made improper factual findings and

determinations.

LOUISIANA REVISED STATUTES 9: 2795

Louisiana Revised Statutes 9: 2795 provides:

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.

51 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.

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

E. ( 1) The limitation of liability provided in this Section shall apply to any lands or water bottoms owned, leased, or managed by the Department of Wildlife and Fisheries, regardless of the purposes for which the land or water bottoms are used, and whether they are used for recreational or nonrecreational purposes.

2)( a) The limitation of liability provided in 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.

b) The provision of supervision on any land managed as a public park by the state or any of its political subdivisions does not create any greater duty of care which may exist and does not create a duty of care 5 or basis of liability for personal injury or for damage to personal property caused by the act or omission of any person responsible for security or supervision of park activities, except as provided in Subparagraph ( E)( 2)( d) of this Section.

c) For purposes of the limitation of liability afforded to parks pursuant to this Section this limitation does not apply to playground equipment or stands which are defective.

d) The limitation of liability as extended to parks in this Section shall not apply to intentional or grossly negligent acts by an employee of the public entity.

F. The limitation of liability extended by this Section to the owner, lessee, or occupant of premises shall not be affected by the granting of a lease, right of or right of occupancy for any recreational use,

purpose which may limit the use of the premises to persons other than the entire public or by the posting of the premises so as to limit the use of the premises to persons other than the entire public. Emphasis added..)

ASSIGNMENT OF ERROR NO. 1

In assignment of error number one, the Marses maintain that the trial court

erred in finding that the petition failed to state a valid cause of action against the

Department based upon the statutory immunity provided by La. R.S. 9: 2795.

The function of an exception of no cause of action is to test the legal

sufficiency of the petition by determining whether the law affords a remedy on the

facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru

South, Inc., 616 So. 2d 1234, 1235 ( La. 1993). No evidence may be introduced to

support or controvert the objection that the petition fails to state a cause of action.

La. C. C. P. art. 931.

Therefore, the court reviews the petition and accepts well pleaded

allegations of fact as true, and the issue at the trial of the exception is whether, on

the face of the petition, the plaintiff is legally entitled to the relief sought.

Everything on Wheels Subaru, Inc., 616 So. 2d at 1235. Peremptory exceptions

2 raising the objection of no cause of action present legal questions, which

are reviewed using the de novo standard of review. Reyer v. Milton Homes,

LLC, 2018- 0580 ( La. App. 1 Cir. 2/ 25/ 19), 272 So. 3d 604, 607.

The Marses' petition maintains that:

XXVI.

The Marses] aver that [ the Department], as the property owner, was under a legal duty to license and inspect all constructions, including the DOME, and to ensure that all applicable building codes and safety laws were strictly adhered to for the safety of participants. The Department] was under a further legal duty to ensure that the EVENT was safe and the obstacles were safe, functional, and

constructed in a manner so as not to cause injury to any participants. This legal duty was designed to protect [ the Marses], and those similarly situated, from this type of harm, arising in this manner. The breach of this duty by the defendant, [ the Department], is a legal cause and cause in fact of the injuries and damages sustained by [ the Marses].

XXVII.

The Marses] further represent that the defendant, [ the Department], breached its legal duty, which such breach was a legal cause and cause in fact of the injuries sustained by [ the Marses], and further, was the sole and proximate cause of [the Marses'] injuries without any comparable negligence on the part of [the Marses]. The defendant committed the following non-exclusive acts of negligence, to wit:

a) Failing to ensure that the property or construction did not present an unreasonable risk of harm;

b) Failing to ensure that the obstacles did not present an unreasonable risk of harm;

c) Failing to ensure that only the proper number of participants were allowed on the course and/ or on the obstacles at a given time;

d) Failing to properly monitor and supervise the EVENT;

e) Failing to provide sufficient security and/or first responders for the EVENT or to ensure that RED FROG did so;

f) Failing to provide sufficient and adequate medical personnel for the event or to ensure that RED FROG did so;

7 g) Failing to provide sufficient and adequate medical

equipment for the event, or to ensure that RED FROG did so;

h) Allowing its property to be used in an unsafe and/or unlawful manner;

i) Failing to exercise reasonable care and vigilance;

0) Failing to properly supervise the EVENT;

k) Failing to have sufficient policies, protocols, and practices in effect to provide for the safety of the EVENT participants or to ensure that RED FROG did so;

1) Failing to obey the laws, statutes, and/or ordinances of the Parish of West Feliciana, and/ or the State of Louisiana or to ensure that RED FROG did so;

m) [ F] ailing to license and/ or inspect all constructions, including the DOME, and to ensure that all applicable building codes and safety laws were strictly adhered to for the safety of participants.

n) Any and all other acts of negligence which are inherent in these pleadings, or which may appear through discovery in this case, or which may be proven at trial in derogation of the laws, statutes, of the State of Louisiana and the United States.

Louisiana Revised Statutes 9: 2795 exempts public bodies, such as the

Department, from liability for injury to person or property caused by any defect in

the land, regardless of whether naturally occurring or man- made, when the public

body permits it to be used for recreational purposes. La. R.S. 9: 2795( B)( 1)( c).

The statute provides that the public body does not assure that a recreational facility

is safe for any purpose. La. R.S. 9: 2795( B)( 1)( a). The limitation of liability is not

affected by the granting of a lease, right of use, or right of occupancy for any

recreational purpose which may limit the use of the premises to persons other than

the entire public. La. R.S. 9: 2795( F).

The statement of purpose of La. R.S. 9: 2795 is contained in 1975 La. Acts,

No. 615, § 1 and provides: " The purpose of this Act 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."

Fournerat v. Farm Bureau Ins. Co., 2011- 1344 ( La. App. 1 Cir. 9/ 21/ 12), 104

So. 3d 76, 81, writ denied, 2012- 2148 ( La. 11/ 21/ 12) 102 So. 3d 59.

The Marses maintain that the Department' s reliance upon La. R.S. 9: 2795 is

misplaced because the statute provides immunity to landowners who permit their

land to be used for recreational purposes. The Marses maintain that the area of

land upon which the Warrior Dash took place was largely an undeveloped area of

land consisting of open grass field and trees as opposed to an urban area or

recreational park. They maintain that the Diesel Dome was a man- made large

structure measuring approximately 30 feet long by 20 feet high, which was one of

several obstacles included in the extreme, for-profit obstacles race course, which is

not the type of instrumentality envisioned under the recreational use statute.

We find that the extreme obstacle course known as the Warrior Dash, with

obstacles such as the Diesel Dome, was clearly a recreational activity, and that the

undeveloped land it was held on belonging to the Department comes under the

broad definition of "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" provided by La. R.S. 9: 2795( E)( 2)( a).

Further, while the Marses maintain that the Department, as the property

owner and governing authority, had a duty to license and inspect the Diesel Dome

and ensure that building codes and safety laws were strictly adhered to, we find

this argument meritless. Such an interpretation would abrogate the specific

intention of the recreational use statute, which states that except for willful or

malicious failure to warn against a dangerous condition, use, structure, or activity,

an owner of land, who permits with or without charge any person to use his land

011 for recreational purposes does not thereby extend any assurance that the premises

are safe for any purposes, and does not incur liability for any injury to person or

property caused by any defect in the land regardless of whether naturally occurring

or man- made. La. R.S. 9: 2795( B)( 1)( a) and ( c). 3

Alternatively, the Marses assert that the Department had specific obligations

and duties as the land owner for damages caused by a defective condition on its

property, citing general laws applicable to owners of immovable property, namely,

La. C. C. art. 2317. 1 and La. R.S. 9: 3221.

Louisiana Civil Code article 2317. 1 provides that the owner or custodian of

a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon

a showing that he knew or, in the exercise of reasonable care, should have known

of the ruin, vice, or defect which caused the damage, that the damage could have

been prevented by the exercise of reasonable care, and that he failed to exercise

such reasonable care. Louisiana Revised Statutes 9: 3221 provides that the owner

of premises leased under a contract whereby the lessee assumes responsibility for

their condition is not liable for injury caused by any defect therein to the lessee or

anyone on the premises who derives his right to be thereon from the lessee, unless

the owner knew or should have known of the defect or had received notice thereof

and failed to remedy it within a reasonable time. In determining the applicability

of laws, the more specific governs over the more general. Liberty Mut. Ins. Co.

v. Louisiana Ins. Rating Com' n, 96- 0793 ( La. App. 1 Cir. 2/ 14/ 97), 696 So. 2d

1021, 1027, writs denied, 97- 2062 ( 12/ 19/ 97), 706 So. 2d 452 and 97- 2069 ( La.

12/ 19/ 97), 706 So. 2d 451. In this case, the more specific law is La. R.S. 9: 2795,

3 The Marses' petition does not allege that the Department willfully or maliciously failed to warn of the alleged defect in the Diesel Dome, or even that West Feliciana had knowledge of the alleged defect.

10 which limits the liability of political subdivisions which own or lease public parks.

Thus, it prevails. This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, the Marses maintain that the trial court failed to

apply the proper legal standard and engaged in improper factual findings.

Specifically, the Marses maintain that the trial court conducted an improper factual

finding by asking counsel whether a building permit was required for the Diesel

Dome.

The judgment shows that the trial court sustained the exception and

dismissed the claims against the Department "[ a] fter considering the pleadings,

memoranda, law, and arguments of counsel." Our thorough review of the record

shows no improper factual finding and no failure to apply the proper legal

standard. This assignment of error has no merit.

DECREE

For the foregoing reasons, after de novo review, the March 8, 2019 trial

court judgment, sustaining an exception of no cause of action, and dismissing all

the claims in this consolidated case, including those of George Peter Marse, III and

Hilary Marse, individually and on behalf of their minor daughter, Annabella Marse,

against the West Feliciana Department of Parks and Recreation, is affirmed.' Costs

of this appeal are assessed against the Marses.

AFFIRMED.

a Although amendment of the petition is allowed when the grounds for an objection of no cause of action can be removed by amendment.. as they cannot be removed here, dismissal is the proper remedy. See La. C. C. P. art. 934. 11