Ward v. Hermitage Ins. Co.

671 So. 2d 1229, 1996 La. App. LEXIS 587, 1996 WL 148492
Louisiana Court of Appeal·Decided April 3, 1996·No. 28236-CA·Published·Cited by 13 cases

Opinion

671 So.2d 1229 (1996)

Christopher WARD, Plaintiff-Appellee,
v.
HERMITAGE INSURANCE CO., et al, Defendants-Appellants.

No. 28236-CA.

Court of Appeal of Louisiana, Second Circuit.

April 3, 1996.

*1230 Bobby L. Culpepper, for Appellants.

Weiner, Weiss, Madison & Howell by Mark L. Hornsby, Shreveport, for Appellee.

Before MARVIN, WILLIAMS and STEWART, JJ.

STEWART, Judge.

Plaintiff, Christopher Michael Ward, was accidentally shot at a hunting club in Webster Parish, Louisiana. Ward now appeals the trial court's granting of a partial summary judgment in favor of the hunting club and its insurer.

Ward complains that the hunting club was found to be entitled to statutory immunity provided by La.R.S. 9:2791 et seq., the Recreational Use law, and that the hunting club's liability insurer was also granted summary judgment. For the following reasons, we affirm.

FACTS

Ward was a member of the Union Springs Hunting Club on November 1, 1993. On that day, while present on hunting club property to put out deer corn, he was accidentally shot by Robert Earl Horn, a 16-year-old boy, hunting on the property pursuant to a visitor's pass from his grandfather, a club member.

At the time of the accident, the hunting club was insured under a liability insurance policy issued by the Hermitage Insurance Company. When Ward filed suit for his personal injuries, he brought suit not only against the father of Robert Earl Horn, but also against the hunting club and its insurer. The club and the insurer filed a motion for summary judgment, relying upon the statutory immunity provided by Louisiana's Recreational Use Statutes (RUS), LSA-R.S. 9:2791 and 9:2795. The initial motion for summary judgment was denied by the trial court before this court's opinion in Johnson v. Lloyd's of London, 26,813 (La.App.2d Cir. 4/5/95), 653 So.2d 226, writ denied, 95-1114 (La. 6/23/95), 656 So.2d 1016. There we interpreted the Recreational Use statutes and affirmed a summary judgment in favor of a hunting club and its insurer.

After Johnson became final the Hermitage and the Union Springs Hunting Club *1231 then filed a second motion for summary judgment. The trial court granted the second motion for summary judgment, and this appeal followed.

LAW OF THE CASE ISSUE

Ward's first issue concerns whether or not the second motion for summary judgment was proper after the same judge had denied the first motion for summary judgment made by the same parties on the same grounds. Ward argues that the "law of the case" principle should apply.

The "law of the case" principle is merely a discretionary guide which relates to (a) the binding force of a trial judge's ruling during the later stages of trial, (b) the conclusive effects of appellate rulings at trial on remand, and (c) the rule that an appellate court ordinarily will not reconsider its own rulings of law on a subsequent appeal in the same case. Reargument in the same case of a previously decided point will be barred where there is simply a doubt as to the correctness of the earlier ruling. However, the law of the case principle is not applied in cases of palpable error or where, if the law of the case were applied, manifest injustice would occur. Glenwood Hospital, Inc. v. Louisiana Hospital Service, Inc., 419 So.2d 1269 (La.App. 1st Cir.1982) (citing Petition of Sewerage & Water Board of New Orleans, 278 So.2d 81 (La.1973)).

We conclude the trial court did not have a mere doubt as to the correctness of his previous denial of defendants' initial motion for summary judgment. The trial court granted the motion for these clearly stated reasons:

Okay, I can take a hint. I think the Second Circuit is trying to tell me something here. The—Like I said, my inclinations were the other way, but on the case that they decided the day before that they drop kicked y'all out, I think they're telling me that you're correct on this ...

The trial court was obviously referring to Johnson v. Lloyd's of London, 26,813 (La. App.2d Cir. 4/5/95), 653 So.2d 226, writ denied, 95-1114 (La. 6/23/95), 656 So.2d 1016, the opinion argued by defendants in support of their second motion for summary judgment. While the trial court did indicate its initial inclinations had been the "other way," it implicitly concluded its initial inclinations were incorrect in light of Johnson. We conclude the trial court's decision to grant defendants second motion for summary judgment was based on more than mere doubt. The law of the case doctrine is simply inapplicable in these circumstances. Louisiana National Bank v. Jumonville, 563 So.2d 965 (La.App. 1st Cir.1990).

We follow the rationale of Louisiana National Bank and conclude that the initial denial of defendants' motion for summary judgment was merely interlocutory and reviewable on appeal of a final appealable judgement.

Accordingly, this assignment of error lacks merit.

RECREATIONAL USE IMMUNITY

The pertinent provisions of LSA-R.S. 9:2791 state:

A. An owner, lessee, or occupant of premises owes no duty of care to keep such premises safe for entry or use by others for hunting, fishing, camping, hiking, sightseeing or boating or to give warnings of any hazardous conditions, use of, structure or activities on such premises to persons entering for such purposes. If such an owner, lessee or occupant gives permission to another to enter the premises for such recreational purposes, he does not thereby extend any assurance that the premises are safe for such purpose or constitute the person to whom permission is granted one to whom a duty of care is owed, or assume responsibility for or incur liability for any injury to persons or property caused by any act of person to whom permission is granted.
* * * * * *
D. The limitation on liability extended by this section to the owner, lessee, or occupant of premises shall not be affected by the granting of a lease, right of use, or right of occupancy for any recreational purpose which may limit the use of the premises to persons other than the entire *1232 public or by the posting of the premises so as to limit the use of the premises to persons other than the entire public.

The similar provisions of LSA-R.S. 9:2795 state in pertinent part:

A. As used in this section: (1) "Land" means land, roads, water, water courses, 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 persons 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 recreational purposes, nature study, water siding, ice skating, sledding, snow mobiling, snow skiing, summer and winter sports, and viewing or enjoying historical, archeological, 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.

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Ward v. Hermitage Ins. Co., 671 So. 2d 1229, 1996 La. App. LEXIS 587, 1996 WL 148492 (La. Ct. App. 1996).

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