Richard v. Louisiana Newpack Shrimp Co.

82 So. 3d 541, 11 La.App. 5 Cir. 309, 2011 WL 6821384, 2011 La. App. LEXIS 1629
CourtLouisiana Court of Appeal
DecidedDecember 28, 2011
DocketNo. 11-CA-309
StatusPublished
Cited by11 cases

This text of 82 So. 3d 541 (Richard v. Louisiana Newpack Shrimp Co.) 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
Richard v. Louisiana Newpack Shrimp Co., 82 So. 3d 541, 11 La.App. 5 Cir. 309, 2011 WL 6821384, 2011 La. App. LEXIS 1629 (La. Ct. App. 2011).

Opinion

FREDERICKA HOMBERG WICKER, Judge.

| gThis is a personal injury suit in which the trial judge granted summary judgment in favor of the defendant. The plaintiffs/appellants, Ann Richard and Kirt Richard, appeal the judgment in favor of the defendant/appellee, Louisiana New-pack Shrimp Co., Inc. The issue presented here is whether the plaintiffs’ claims are barred by the Louisiana Recreational Use Immunity Statutes, La.R.S. 9:2791 and La.R.S. 9:2795. Finding that the plaintiffs’ claims are barred by the Recreational Use Statutes, we affirm.

Procedural History

The plaintiffs filed a petition for damages alleging that on April 11, 2009 around 7:30 PM, Mrs. Richard was walking on a levee when she fell in a hole and sustained serious injuries. They alleged that the hole was caused by the defendant’s delivery trucks as the trucks entered and exited the defendant’s facility. The plaintiffs asserted that the defendant was negligent or strictly liable in several respects, including failure to warn patrons of the levee’s hazardous condition.

IsThe defendant denied the allegations and raised affirmative defenses, including the defense that it was immune from liability pursuant to the Recreational Use Statutes. Relying on the alleged immunity, the defendant filed a motion for summary judgment asserting that it was entitled to judgment as a matter of law. To support [543]*543its motion, the defendant filed an act of sale and property description, a property survey, Edward Lee’s affidavit, and the plaintiffs’ depositions.

Mr. Lee attested to the following:

He manages the Edward Lee Family Investment Company, LLC (the Lee property), the owner of the property where Mrs. Richard claimed she injured herself. The Lee property is leased to the defendant, which operates a wholesale seafood processing business on the site. Bayou Segnette runs adjacent to the seafood plant. There are boat docks in the bayou that have been used for many years by recreational and commercial fisherman as well as boaters. Those docks are built into the canal or bayou. Neither the defendant nor the Lee property company does any business with the boaters and/or fishermen who use the docks adjacent to the seafood plant property. For many years, individuals have been allowed to gain access to their docks and boats free of charge by entering from the seafood plant property. Often, these individuals park their vehicles on the seafood plant property. Neither the defendant nor the Lee property company has ever charged these individuals a fee or collected any revenue from the individuals who use the docks and boat slips. Neither the Lee Company nor the defendant operates a commercial recreational enterprise at the seafood plant property. At the time that Mrs. Richard claimed to have fallen, the seafood plant was closed and there were no employees of the defendant or the Lee property company present.

|4Mrs. Richard’s deposition testimony was consistent with Mr. Lee’s attestation that for many years, individuals have been allowed to gain access to their docks and boats by entering from the seafood plant property. She stated that on the date of the alleged accident, she had been staying at a friend’s camp located on the water in Bayou Segnette. This marsh area can only be accessed by boat. The camp is approximately 12 to 15 minutes from the seafood plant. She testified that over the course of 20 years, people have always parked in the seafood plant property area to get to the boats. The seafood plant operated during those 20 years with trucks coming and going there. Before the alleged accident, she had been to the camp approximately 50 times over the course of 20 years. People with boats who want to launch their boats use the road that cuts through the seafood plant property all of the time. At the time she fell, around 7:00 PM or 7:15 PM on a Saturday evening, the shrimp plant was closed.

Likewise, Mr. Richard testified that during the entire time that he has been coming to the camp by boat it was customary for vehicles to park alongside the seafood factory. Each day, there is fairly steady traffic going up and down that road with people coming to launch their boats at the public launch in the rear.

Mrs. Richard testified that on the day in question, she fell while she was at the seafood property. She explained that her family had been at the camp for the Easter weekend, arriving a few days before the alleged fall. Upon arriving, she and her husband parked their vehicle on the seafood plant’s property and accessed their friend’s boat, which was already in the water. The boat was by the “little levee” on the seafood plant’s property. She testified that she had crossed the “little levee” before that day approximately hundreds of times and never had a problem crossing. She described the “little levee” as a 2-1/2 to 3 foot dirt mound that runs along the waterway and also along the road that cuts through the defendant’s property.

| RMrs. Richard testified that at the camp, people fished and canoed. She left [544]*544the camp that day by boat accompanied by her husband and friend in order to purchase groceries and items for the children. Upon returning to the boat to depart to the camp, she realized that she left her jacket on the back of the truck. She-walked on the levee, a path she had previously- walked hundreds of times without incident, in order to retrieve the jacket. Before the fall, she made six trips across the levee loading groceries into the boat. Finally, while crossing the levee in the same area as before to retrieve her coat, surprisingly, the ground gave way causing her to fall.

Mrs. Richard stated that she fell when her leg got caught in a rut. According to Mrs. Richard, the defendant’s failure to accommodate trucks entering and leaving its business allowed trucks little room to negotiate the turn. Thus, the truck’s tires caught the bottom of the “little levee” making tire tracks and cuts into the levee. She had seen these ruts after the plant built a fence and before the accident. She had never, however, complained to the defendant about the ruts.

The plaintiffs opposed the motion on two grounds. First, they asserted that the Recreational Use Statutes do not apply because the defendant’s lot only incidentally services recreational activity and the recreational activity is exclusively and always engaged in away from the defendant’s property. Second, they argued that the Recreational Use Statutes do not provide immunity for a willful failure to warn against a dangerous condition, use, structure, or activity.

In granting summary judgment, the trial judge concluded that the defendant was immune under the Recreational Use Statutes. This appeal followed.

| (Analysis

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, 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(B). We apply the de novo standard of review in reviewing a district court judgment on a motion for summary judgment. Robinson v. Jefferson Parish Sch. Bd., 08-1224, p. 13 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043, writ denied, 09-1187 (La.9/18/09), 17 So.3d 975 (citations omitted).

The movant bears the burden of proof. La.C.C.P. art. 966(C)(2).

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Bluebook (online)
82 So. 3d 541, 11 La.App. 5 Cir. 309, 2011 WL 6821384, 2011 La. App. LEXIS 1629, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richard-v-louisiana-newpack-shrimp-co-lactapp-2011.