O'QUINN v. Power House Services, Inc.

633 So. 2d 707, 1993 WL 601253
CourtLouisiana Court of Appeal
DecidedDecember 29, 1993
Docket93 CA 0277
StatusPublished
Cited by8 cases

This text of 633 So. 2d 707 (O'QUINN v. Power House Services, Inc.) 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
O'QUINN v. Power House Services, Inc., 633 So. 2d 707, 1993 WL 601253 (La. Ct. App. 1993).

Opinion

633 So.2d 707 (1993)

Michael O'QUINN
v.
POWER HOUSE SERVICES, INC., et al., American Empire Surplus Insurance Co., d/b/a American Empire Insurance Co., J. Pat Price, J.H. Jenkins, CNA Insurance Companies and Jenkins Construction Co.

No. 93 CA 0277.

Court of Appeal of Louisiana, First Circuit.

December 29, 1993.

*708 Mark R. Wolfe, New Orleans, for plaintiff-appellant.

Robert J. Young, Jr., Donald T. Giglio, New Orleans, Joseph A. Schittone, Jr., John E. Cox, Eugene W. McGehee, Baton Rouge, Jerome K. Lipsich, New Orleans, for defendants.

Before FOIL, PITCHER and PARRO, JJ.

PITCHER, Judge.

Michael O'Quinn (plaintiff), appeals from a trial court judgment granting the motions for summary judgment filed by defendants, J.H. Jenkins, Jr. (Jenkins, Jr.), Continental Casualty Insurance Company (Continental), and Jenkins Construction Company (Jenkins Construction). The trial court found that these defendants were immune from liability pursuant to LSA-R.S. 9:2791 and 2795. We reverse.

FACTS

Plaintiff was a resident patient at Power House Services, Inc. (Power House), a halfway house for individuals suffering from chemical dependency. On or about March 27, 1988, plaintiff attended an outing with the other resident patients of Power House. This outing took place on property owned by Jenkins, Jr. This property covers approximately 500 acres, although Jenkins, Jr. stated that he is the sole owner of only 200 of the 500 acres. On this property is a camp, described as a building with 1000-1500 square feet of living area, with one large bedroom and two bathrooms. The camp also has a screened-in porch and a carport, with spaces for two cars. The camp has lighting, central air conditioning, a telephone, and a paved driveway leading to it.

Also on this property is a manmade lake which is allegedly surrounded by a cement product referred to as "rip-rap." This lake, along with the camp, is fenced in and, apparently, kept locked at all times.

On the day of this outing, plaintiff stated that he arrived at the site with other resident patients and began to fish. According to plaintiff, after observing other resident patients swimming in the lake, he borrowed a pair of swimming trunks and dove into the *709 lake. Plaintiff stated that he hit his head on "something hard." Plaintiff suffered a broken neck, which rendered him a quadriplegic.

Plaintiff filed a suit for personal injuries and named as defendants, Jenkins, Jr., Continental (the liability insurer of Jenkins, Jr.), and Jenkins Construction.[1] The petition alleged that Jenkins, Jr. and/or Jenkins Construction were the owners of the property in question. The petition also alleged that Jenkins, Jr. or Jenkins Construction, or both, were the party responsible for placing concrete at the bottom of the lake.

Jenkins Construction filed a Motion for Summary Judgment. In support of this motion, Jenkins Construction alleged that plaintiff had (1) no information showing that Jenkins Construction was responsible for placing concrete in or around the pond and (2) no information that the company owned, leased or operated the premises on which the pond was located.

Jenkins, Jr. and Continental also filed a Motion For Summary Judgment. In support of their motion, Jenkins, Jr. and Continental alleged that they were immune from liability under LSA-R.S. 9:2791[2] and 2795[3], commonly *710 referred to as the recreational use statutes.

In granting the motions for summary judgment in favor of these three defendants, the trial court found that (1) defendants owned and maintained the property; (2) the property was rural and primarily undeveloped; and (3) plaintiff was engaged in the act of swimming in a lake or pond at time of injury. It then determined that the key question to be answered was the property's "availability to the public." The court found that this property was available to the public and thus, the movers were immune from liability.

Plaintiff filed a Motion For New Trial which was denied by the trial court.

Plaintiff appealed the trial court's ruling and sets forth the following assignments of error:

1.
The trial court erred in granting summary judgment to defendants J.H. Jenkins, Jr., Continental Casualty Company, and Jenkins Construction Company by finding them immune by operation of the Recreational Use Statutes, LSA-R.S. 9:2791 and 9:2795, from the tort claim of Michael O'Quinn.
2.
The trial court erred in granting summary judgment to defendants J.H. Jenkins, Jr., Continental Casualty Company, and Jenkins Construction Company as to those causes of action presented by Michael O'Quinn which lie beyond the scope of the Recreational Use Statutes, LSA-R.S. 9:2791 and 9:2795.
3.
The trial court erred by not finding the Recreational Use Statutes, LSA-R.S. 9:2791 and 2795, to be unconstitutional.

ASSIGNMENT OF ERROR NUMBER ONE

Generally, a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, show there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Kerwin v. Nu-Way Construction Service, Inc., 451 So.2d 1193, 1194 (La.App. 5th Cir.), writ denied, 457 So.2d 11 (La.1984); Landry v. Brandy, 389 So.2d 93, 95 (La.App. 4th Cir.1980); Cooper v. Anderson, 385 So.2d 1257, 1258 (La.App. 4th Cir.), writ denied, 393 So.2d 738 (La.1980). The burden is upon the mover for summary judgment to show that no genuine issues of material fact exist, and only when reasonable minds must inevitably conclude that mover is entitled to judgment as a matter of law is summary judgment warranted. Frazier v. Freeman, 481 So.2d 184, 186 (La.App. 1st Cir.1985); Asian International, Ltd. v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 435 So.2d 1058, 1063 (La.App. 1st Cir.1983).

Summary judgments are not favored, and any reasonable doubt should be resolved against the mover. Dupuy v. Gonday, 450 So.2d 1014, 1015 (La.App. 1st Cir.1984). In determining whether material issues have in fact been disposed of, any doubt is to be resolved against granting the summary judgment and in favor of trial on the merits. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772, 775 (La.1980); Chaisson v. Domingue, 372 So.2d 1225, 1227 (La.1979).

LSA-R.S. 9:2791 and 2795 were originally enacted by Act 248 of 1964 and Act 615 of 1975, respectively. Both acts intended to provide a limitation of tortious liability of landowners who allowed their property to be used for recreational purposes. Peterson v. Western World Insurance Company, 536 *711 So.2d 639, 643 (La.App. 1st Cir.1988), writ denied, 541 So.2d 858 (La.1989). The stated goal of the recreational use statutes is:

[T]o 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.

Monteville v. Terrebonne Parish Consolidated Government, 567 So.2d 1097, 1101 (La. 1990).

The Louisiana Supreme Court, in Keelen v. State, Department of Culture, Recreation and Tourism, 463 So.2d 1287, 1290 (La.1985) stated:

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