Johnson v. Lloyd's of London

653 So. 2d 226, 1995 WL 146320
CourtLouisiana Court of Appeal
DecidedApril 5, 1995
Docket26,813-CA
StatusPublished
Cited by4 cases

This text of 653 So. 2d 226 (Johnson v. Lloyd's of London) 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
Johnson v. Lloyd's of London, 653 So. 2d 226, 1995 WL 146320 (La. Ct. App. 1995).

Opinion

653 So.2d 226 (1995)

Johnny JOHNSON et ux., Plaintiffs-Appellants,
v.
LLOYD'S OF LONDON et al., Defendants-Appellees.

No. 26,813-CA.

Court of Appeal of Louisiana, Second Circuit.

April 5, 1995.

Jay A. Pucheu, Marksville, Gregory Scott Moore, Monroe, for appellants.

Steven J. Levine, F. Scott Kaiser, Patricia H. Wilton, Baton Rouge, Robert M. Baldwin, Monroe, for appellees.

Before SEXTON, J., and CULPEPPER and PRICE, JJ., (Pro Tem.).

CULPEPPER, Judge Pro Tem.

Plaintiff, Johnny Johnson, sustained injuries on the rural, leased premises of the Webster's Bluff Hunting Club, Inc. His subsequent suit against the Club and its insurer, Lloyd's of London, was dismissed via summary judgment. In dismissing Johnson's action, the trial court concluded that the statutory immunity provided by Louisiana's Recreational *227 Use Statutes (RUS), LSA-R.S. 9:2791 and 9:2795, apply to the Club and its insurer. Johnson has appealed, arguing that the RUS do not apply under the facts of this case because his theory of liability is not based upon any implied warranties, assurances or other means of liability arising out of permission to use the land, but is based upon the breach of a duty specifically assumed by the Club. For the reasons set forth below, we affirm the trial court's judgment.

FACTS

In September 1991, Johnson fell from his own deer stand located on the Club's premises. He remained on the ground approximately 24 hours before being found by other members of his Club. In Johnson's subsequent suit against the Club and its insurer, he alleged that the defendants were liable:

For the damages sustained by JOHNNY JOHNSON and STEPHANIE JOHNSON that were caused by the negligent actions or inactions of WEBSTER, which include but are not limited to any or all of the following:
(a) Failing to implement any type of system that would advise WEBSTER of members on its premises with potential disabling injuries;
b) Failing to take any actions to locate JOHNSON after being advised that he was on the premises;
c) Failing to promulgate any rules to insure all persons injured on the premises would be discovered within a reasonable period of time; and
d) Other acts of negligence that shall be proven at the trial of the merits.

The above quoted allegations show that Johnson's claims were based on the alleged negligence of the Club. With respect to the first listed instance of alleged negligence, Johnson's petition stated that at least two weeks prior to his accident the Club had recognized the risk of possible injuries being sustained on the leased premises, and accordingly had decided that a check-in board would be placed at the hunting camp, and that all members who proceeded into the wooded area on the leased premises would be required to place a marker by their name. This would allow members to have knowledge that a particular person was still in the woods, and would insure that an individual who may have sustained injuries on the premises would not remain on the premises until he was discovered by mere chance. Johnson's petition went on to allege that despite the Club having appreciated the danger of not having a check-in board, the Club failed to implement a check-in system prior to his accident.

The motion for summary judgment, along with its attachments, establish that the Club was formed in 1988 as a non-profit corporation with the sole purpose of leasing and maintaining property on which its members could hunt, fish, and enjoy outdoor recreational activities. The Club leased approximately 2,500 acres of rural land in Union Parish from Manville Forest Products Corporation for hunting and fishing. The land was undeveloped with the exception of a few asphalt, dirt, and gravel roads; the nearest town was seven miles away; and there were a few adjoining landowners who owned small farms or country homes. The Club was never operated for profit; the dues charged to its members were used to pay for the lease and defray the cost of running the club. Johnson does not dispute any of these facts.

In opposition to the motion for summary judgment, Johnson noted that he asserted no liability against the Club or its insurer based upon his initial fall. Instead, he claimed that due to the Club's failure to look for him when there was reason to believe he was on the premises, and due to the Club's failure to follow its own procedures designed to prevent such occurrences, he lay on the ground for approximately 24 hours resulting in enhanced injuries. For these reasons, Johnson argued that Louisiana's RUS did not apply. The essence of his argument, both in the trial court and on appeal, is 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 this case outside the scope of the RUS. The trial court rejected Johnson's argument and this appeal followed.

*228 DISCUSSION

The provisions of LSA-R.S. 9:2791 state:

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. If such an owner, lessee or occupant give 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 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.
B. This Section does not exclude any liability which would otherwise exist for deliberate and willful or malicious injury to persons or property, nor does it create any liability where such liability does not now exist. Furthermore the provisions of this Section shall not apply when the premises are used principally for a commercial, recreational enterprise for profit; existing law governing such use is not changed by this Section.
C. The word "premises" as used in this Section includes lands, roads, waters, water courses, private ways and buildings, structures, machinery or equipment thereon.
D. 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 use, or right of occupancy for any recreational 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.

The very similar provisions of LSA-R.S. 9:2795 state in pertinent part:

A. As used in this Section:

* * * * * *

(2) "Owner" means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.

* * * * * *

(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:

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Cite This Page — Counsel Stack

Bluebook (online)
653 So. 2d 226, 1995 WL 146320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-lloyds-of-london-lactapp-1995.