Lola Marvene Maher, Wife of/and Johny (Nmi) Maher v. New Orleans City Park and/or New Orleans City Park Improvement Association; And the State of Louisiana Ex Rel. Department of Culture, Recreation, and Tourism

• Court: Louisiana Court of Appeal
• Decided: January 29, 2024
• Docket: 2023-CA-0416
• Status: Published

Opinion

LOLA MARVENE MAHER, * NO. 2023-CA-0416 WIFE OF/AND JOHNY (NMI) MAHER * COURT OF APPEAL

VERSUS * FOURTH CIRCUIT

NEW ORLEANS CITY PARK * STATE OF LOUISIANA AND/OR NEW ORLEANS CITY PARK IMPROVEMENT ******* ASSOCIATION; AND THE STATE OF LOUISIANA EX REL. DEPARTMENT OF CULTURE, RECREATION, AND TOURISM

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-12412, DIVISION “A” Honorable Ellen M Hazeur, Judge ****** JUDGE SANDRA CABRINA JENKINS ****** (Court composed of Chief Judge Terri F. Love, Judge Sandra Cabrina Jenkins, Judge Karen K. Herman)

ON APPLICATION FOR REHEARING

Nathan L. Schrantz NATHAN SCHRANTZ LLC 830 Union St Suite 302 New Orleans, LA 70112

COUNSEL FOR PLAINTIFF/APPELLANT

Jeff Landry ATTORNEY GENERAL Adrian Alpay Assistant Attorney General LOUISIANA DEPARTMENT OF JUSTICE 1855 N. Third Street 3rd Floor Baton Rouge, LA 70804-9005

COUNSEL FOR DEFENDANT/APPELLEE

REHEARING GRANTED FOR CLARIFICATION; RELIEF DENIED; ORIGINAL OPINION AFFIRMED JANUARY 29, 2024 SCJ TFL KKH

We grant appellee, State of Louisiana, through the Department of Culture,

Recreation, and Tourism (“DCRT”) on behalf of New Orleans City Park

Improvement Association’s application for rehearing to address its argument that

this Court’s December 18, 2023 opinion conflicts with Beal v. Westchester Surplus

Lines Ins. Co., 2021-0187 (La. App. 4 Cir. 12/15/21), 334 So.3d 438, writ denied,

2022-00114 (La. 4/5/22), 335 So.3d 838, and the Court erred in reversing summary

judgment without addressing its argument that Lola Marven Maher and Johny

Maher (collectively “the Mahers”) failed to meet their burden of proving notice

under La. R.S. 9:2800.

DCRT’s application for rehearing seeks reconsideration of this court’s ruling

that reversed and remanded the trial court’s April 13, 2023 judgment that granted

its motion for summary judgment and dismissed the Mahers’ claims. DCRT argues

that Beal established that the definition of recreational purposes is broad enough to

include activities normally associated with attending a music festival, thus

1 attending an annual holiday light festival held outdoors serves as a recreational

purpose.

In Beal, this Court determined whether attending a music festival is

considered an event generally held in the true outdoors. The Court noted that “[t]he

[French Quarter] Festival was created with the purpose of promoting the French

Quarter 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.” Beal, 2021-0187, pp. 12-13, 334 So.3d at 446. DCRT fails to consider is

that as the mover, it bore the burden of proof in the motion for summary judgment

to point out to the court the absence of factual support for one or more elements

essential to the Mahers’ claim. The evidence presented established that City Park is

available to the public for outdoor recreation, however, it failed to establish that

Celebration in the Oaks is a recreational activity that encompass “viewing or

enjoying historical, archaeological, scenic, or scientific sites.” See La. R.S. 9:2795;

see also Beal, 2021-0187, p. 13, 334 So.3d at 446. Thus, we do not find that

DCRT made a prima facie showing that it is entitled to immunity under the

Recreational Use Statute to switch the burden of proof to the Mahers.

Next, DCRT argues that this Court erred in reversing the trial court’s

judgment without ruling on the issue of whether the Mahers proved actual or

constructive notice. It is well-settled that “appellate courts will not consider issues

raised for the first time on appeal that were not pleaded in the trial court or were

not addressed by the trial court.” Hawthorne v. Tulane Med. Ctr., 2022-0362, p. 9

(La. App. 4 Cir. 12/12/22), 367 So.3d 689, 696 (citing Geiger v. State, ex rel. Dept.

2 of Health and Hosp., 2001-2206, p. 11 (La. 4/12/02), 815 So.2d 80, 86). The trial

court did not rule on the issue of constructive notice, as it provided at the

conclusion of the February 3, 2023 hearing that it “declines to address whether the

defendant had notice of the missing catch basin.” Therefore, this Court will not

address the issue.

For these reasons, we grant the application for rehearing for clarification,

deny the relief, and affirm our original opinion.

REHEARING GRANTED FOR CLARIFICATION; RELIEF DENIED; ORIGINAL OPINION AFFIRMED