Pratt v. State

408 So. 2d 336
CourtLouisiana Court of Appeal
DecidedDecember 16, 1981
Docket8506
StatusPublished
Cited by27 cases

This text of 408 So. 2d 336 (Pratt v. State) 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
Pratt v. State, 408 So. 2d 336 (La. Ct. App. 1981).

Opinion

408 So.2d 336 (1981)

Gladney PRATT, et al., Plaintiffs-Appellants,
v.
STATE of Louisiana, Defendants-Appellees.

No. 8506.

Court of Appeal of Louisiana, Third Circuit.

December 16, 1981.
Rehearing Denied January 29, 1982.
Writ Denied March 19, 1982.

*337 Eugene P. Cicardo, Gravel, Robertson & Brady, James J. Brady, Alexandria, for plaintiffs-appellants.

David C. Kimmel and Janice M. Hornot, La. Dept. of Justice, Baton Rouge, Gist, Methvin, Hughes & Munsterman, David Hughes, Alexandria, for defendants-appellees.

Before CULPEPPER, CUTRER and STOKER, JJ.

STOKER, Judge.

This is one of two cases which were consolidated for trial. We render a separate opinion in the companion case on this date.[1]

Both cases are wrongful death and survival actions growing out of the drownings of Mark S. Pratt and Darrell Ray Burgess at Indian Creek Reservoir and Recreation area.

In both cases the trial court granted motions for summary judgment based on a state statute purporting to exempt or grant immunity from liability to owners of land used for recreational facilities. The statute is LSA-R.S. 9:2795. The statute does not apply to "an owner of commercial recreational developments or facilities." One of the principal issues is whether the recreational area at which the drownings occurred was a commercial development or facility. The trial court held it was not so that the defendants were exempt from liability from negligence.

Plaintiffs in both cases base their cases on alleged acts of negligence of a state *338 agency and the Rapides Parish Police Jury. The Indian Creek Reservoir and Recreational Area contains an artificial lake with adjacent recreational areas. The lake and facilities are located on land owned by the State through the Department of Natural Resources, Office of Forestry. That agency and the Rapides Parish Police operate and maintain the facility under a contract entered into by the two public bodies. The statute on which the summary judgments were granted, LSA-R.S. 9:2795, provides as follows:

"A. As used in this Section:
(1) `Land' means land, roads, water, watercourses, private ways and 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 vehicle operation for recreation purposes, nature study, water skiing, ice skating, sledding, snow mobiling, snow skiing, summer and winter sports, and 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.
B. 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:
(1) Extend any assurance that the premises are safe for any purposes.
(2) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owed.
(3) Incur liability for any injury to person or property incurred by such person.
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 Act 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."

The trial court gave extensive well written reasons for judgment. We take the liberty of quoting portions of those reasons which we adopt as our own and to which we will add further comment. The trial court's reasons for judgment state:

"* * * The legal responsibility of the defendants in these suits is predicated upon negligence. While the specific allegations of negligence vary somewhat in each suit, generally plaintiffs aver that defendants were negligent in failing to provide lifeguards, adequate warnings, proper rescue equipment, properly trained rescue personnel, and further aver that defendants were negligent in maintaining and operating the swimming area which they knew, or should have known was unsafe for such purposes.

"The defendants, Rapides Parish Police Jury (hereinafter sometimes referred to as `Police Jury') and the State of Louisiana, through the Department of Natural Resources, Office of Forestry (hereinafter sometimes referred to as `the State'), have filed Motions for Summary Judgment in each of the suits. The defendant Police Jury contends that the Indian Creek Reservoir and Recreation Area was under the exclusive operation, maintenance and control of the State of Louisiana and as such, the Police Jury did not have any right, duty or obligation to maintain, and operate the recreation and swimming area. The Police *339 Jury contends in the alternative, that it is exempted from liability for damages which occurred under the circumstances involved in this matter by [LSA-R.S.] 9:2795. The State of Louisiana contends that it also is exempt from liability under the same statute.

"The two issues presented for decision on these motions are:

1) Whether a genuine issue of material fact exists as to the control over the Indian Creek Reservoir and Recreation Area;

2) Whether the defendants are exempted from liability by [LSA-R.S.] 9:2795.

PART I. CONTROL

"The Police Jury's principal contention presupposes, and in effect admits, that the existence of a duty for which liability may be established, is premised on a finding that the defendant exercised some degree of control over the recreation and swimming area. In support of the motion, defendant relies heavily on a contract and agreement dated April 22, 1974 between the Police Jury and the State of Louisiana, and the deposition of Mr. Lamar Joffrion, District Forester for the Office of Forestry.

"The contract clearly states:
`The Louisiana Forestry Commission shall operate and maintain and manage the Indian Creek Recreational Area and shall have the right and authority to assess and collect fees for the use of the recreational area which funds so collected shall be used exclusively for the maintenance and operation of the Indian Creek Reservoir and Recreational Area.'

"In his deposition, Lamar Joffrion, in response to questioning regarding the state's control over the operation of the recreation area, testified that they `basically, administer it.' (Depo., P.8).

"The general tenor of the contract and deposition is that the day-to-day operation of the recreation area has been left largely to the State.

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Bluebook (online)
408 So. 2d 336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pratt-v-state-lactapp-1981.