Joseph Glorioso on Behalf of His Minor Daughter, Molly Glorioso Versus The City of Kenner

• Court: Louisiana Court of Appeal
• Decided: December 18, 2019
• Docket: 19-CA-298
• Status: Unknown

Opinion

JOSEPH GLORIOSO ON BEHALF OF HIS NO. 19-CA-298 MINOR DAUGHTER, MOLLY GLORIOSO FIFTH CIRCUIT VERSUS COURT OF APPEAL THE CITY OF KENNER STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 786-435, DIVISION "J" HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING

December 18, 2019

ROBERT A. CHAISSON JUDGE

Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and John J. Molaison, Jr.

VACATED RAC MEJ JJM COUNSEL FOR PLAINTIFF/APPELLANT, JOSEPH GLORIOSO ON BEHALF OF HIS MINOR DAUGHTER, MOLLY GLORIOSO Edward P. Gothard Harold L. Ehrenberg

COUNSEL FOR DEFENDANT/APPELLEE, THE CITY OF KENNER C. A. Fleming, III CHAISSON, J.

In this case arising from an injury to a minor child while attending a

gymnastics camp in a facility owned by the City of Kenner (“Kenner”), Joseph

Glorioso, on behalf of his minor daughter, appeals an April 3, 2019 judgment of

the trial court that granted Kenner’s motion for summary judgment and dismissed

the lawsuit with prejudice. For the following reasons, we vacate the judgment of

the trial court.

FACTS AND PROCEDURAL HISTORY

On August 8, 2017, Molly Glorioso, then age five, was attending a

gymnastics class at the Barbre Gym located at 1610 Reverend Wilson Drive in

Kenner. This gym is owned by Kenner and operated by its Parks and Recreation

Department. During class, Molly slid off a stage and cut her right thigh and

buttock on a broken metal electrical box located on the front of the stage. On

August 7, 2018, Mr. Glorioso filed a petition for damages on his daughter’s behalf

under various theories of negligence and premises liability. In its answer filed

August 27, 2018, Kenner denied the allegations and raised various affirmative

defenses.

On December 18, 2018, Kenner filed a motion for summary judgment in

which it argued that La. R.S. 9:2795, the Recreational Use Statute, provides

blanket tort immunity barring Mr. Glorioso’s claims of negligence and injury. In a

judgment on March 12, 2019, the trial court denied this motion for summary

judgment. The City re-urged its motion, and after rehearing, the trial court, on

April 3, 2019, granted the motion for summary judgment and dismissed Mr.

Glorioso’s claims. This timely appeal follows.

19-CA-298 1 DISCUSSION

On appeal, Mr. Glorioso argues that the trial court legally erred in applying

La. R.S. 9:2795 to the facts of this case. In particular, Mr. Glorioso argues that the

trial court incorrectly extended the language of the statute to add gymnastics as a

“recreational purpose,” and also incorrectly extended the definition of land to

include any building, whether or not “attached to the realty.” Kenner argues that

urban land and buildings, including Barbre Gym, are included under the statute,

and that the gym is used for recreational purposes under the “unlimited omnibus

clause,” and therefore the immunity act applies and Kenner is not liable for

Molly’s injuries.

Appellate courts review summary judgments de novo using the same criteria

that govern the trial court’s determination of whether summary judgment is

appropriate. In re Succession of O’Krepki, 16-50 (La. App. 5 Cir. 5/26/16), 193

So.3d 574, 577. A motion for summary judgment should be granted if, after an

adequate opportunity for discovery, the motion, memorandum, and supporting

documents show that there is no genuine issue as to material fact and that the

mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(4).

At issue in this appeal is the correct interpretation of La. R.S. 9:2795. The

starting point in the interpretation of any statute is the language of the statute itself

as what a legislature says in the text of a statute is considered the best evidence of

its intent and will. Mayeux v. Charlet, 16-1463 (La. 10/28/16), 203 So.3d 1030,

1036. La. R.S. 9:2795 reads in pertinent parts:

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. …

19-CA-298 2 (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. …

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 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 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. …

When interpreting the language of a statute, words and phrases shall be read

with their context and shall be construed according to the common and approved

usage of the language. La. R. S. 1:3; La. C.C. art. 10. When a law is clear and

unambiguous and its application does not lead to absurd consequences, the law

shall be applied as written and no further interpretation may be made in search of

the intent of the legislature. La. C.C. art. 9. When the language of the law is

19-CA-298 3 susceptible to different meanings, it must be interpreted as having the meaning that

best conforms to the purpose of the law. La. C.C. art. 10.

We examine first whether gymnastics is a “recreational purpose” such that

the limitation of liability, as provided in Subsection E(2)(a), is applicable.

Subsection A(3) does not provide a specific definition of “recreational purpose,”

but does enumerate an exemplary list of activities such as fishing, hunting, and

camping. Gymnastics is not included in this list. As Kenner points out, the list

enumerated is not exclusive because it is preceded by the phrase “includes but is

not limited to.” Kenner argues that this “omnibus clause” is unlimited, and cites as

support for its position our previous decision in Richard v. Louisiana Newpack

Shrimp Co., Inc., 11-309 (La. App. 5 Cir. 12/28/11), 82 So.3d 541.

In Richard, the plaintiff, while crossing a small levee in order to access and

load a boat in preparation for departure to a camp, was injured when she fell in a

hole in the levee allegedly caused by the defendant’s delivery trucks. Recognizing

that loading a boat and preparing to depart to a camp are not any of the specific

enumerated recreational activities in La. R.S. 9:2795(A)(3), this Court examined

the language of the statute to determine whether it was broad enough to include the

normal activities associated with boating and camping, both activities that are

specifically enumerated as recreational activities in the statute. Id. at 546. The

Court found that “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.” Id. The issue in the case before us sub judice is not whether

Molly was engaged in an activity that is normally associated with one of the

enumerated recreational activities in the statute, but rather whether gymnastics

itself is a recreational activity as contemplated by the statute. Therefore, we do not

find the Richard case instructive on this issue.

19-CA-298 4 In its interpretation of a previous version of La. R.S. 9:2795, the Louisiana

Supreme Court observed that the statute limits the right of plaintiffs to bring tort

actions, and, as such, is in derogation of a common right and must be strictly

construed. Keelen v. State, Dep’t of Culture, Recreation & Tourism, 463 So.2d

1287, 1289 (La. 1985). The Court also later observed that this rule of strict

interpretation is so well settled that it must be presumed that the legislature acted

with full knowledge of the strict interpretation of statutes of this nature. Monteville

v. Terrebonne Par. Consol. Gov’t, 567 So.2d 1097, 1100 (La. 1990). When there

is any doubt about the intent or meaning of laws in derogation of common rights,

such as the Recreational Use Statute, the statute must be given the effect which

makes the least rather than the most change in the existing body of law. Id.

Finally, the legislative intent behind La. R.S. 9:2795 may be found in the statement

of purpose contained in 1975 La. Acts, No. 615, §1, which provides, “[t]he 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.” Richard v. Hall, 03-1488 (La. 4/23/04), 874

So.2d 131, 150.

Mr. Glorioso argues that the activities enumerated in the list of recreational

purposes are characterized by physical activities typically requiring the outdoors,

and that gymnastics, being a sport practiced with equipment indoors, is dissimilar

from these activities. To the contrary, Kenner argues that gymnastics is a summer

sport, and that the list includes activities that are both indoor sports such as figure

skating and non-sports such as viewing historical sites.

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,

19-CA-298 5 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.

CONCLUSION

Having found that gymnastics is not a recreational purpose as contemplated

by La. R.S. 9:2795(A)(3), we conclude that Kenner has no immunity under the

statute. We therefore pretermit any further discussion of the interpretation of the

statute, including whether the Barbre Gym is a building “attached to the realty” as

required by the statute. Kenner has failed to show that it is entitled to judgment as

a matter of law. Accordingly, we vacate the judgment of the trial court and remand

this matter for further proceedings consistent with this opinion.

VACATED

19-CA-298 6 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY DECEMBER 18, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-CA-298 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE) EDWARD P. GOTHARD (APPELLANT) C. A. FLEMING, III (APPELLEE)

MAILED HAROLD L. EHRENBERG (APPELLANT) ATTORNEY AT LAW 2113 VETERANS BOULEVARD METAIRIE, LA 70002