Stella Michelle Fournerat VS Farm Bureau Insurance Company and Edward J. Gay Planting and Manufacturing, Ltd.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2011 CA 1344 STELLA MICHELLE FOURNERAT VERSUS FARM BUREAU INSURANCE COMPANY ET AL Judgment rendered September 21 2012 Q I Appealed from the 18 Judicial District Court in and for the Parish of Iberville Louisiana Trial Court No 65225 Honorable J Robin Free Judge WILLIAM D GRIMLEY ATTORNEYS FOR BATON ROUGE LA PLAINTIFF APPELLANT AND STELLA MICHELLE FOURNERAT PATRICK W PENDLEY PLAQUEMINE LA STACEY MOAK ATTORNEY FOR BATON ROUGE LA DEFENDANTS APPELLEES ST LOUIS PLANTING INC LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY AND SOUTHERN FARM BUREAU CASUALTYINSURANCE COMPANY KIRK A PATRICK III BATON ROUGE LA ATTORNEY FOR DEFENDANTS APPELLEES LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY AND EDWARD J GAY PLANTING AND el Jl N l MANU 1 cl sC s ev BEFORE KUHN PETTIGREW AND McDONALD 33 PETTIGREW J Plaintiff appeals the trial court judgment granting summary judgment in favor of s defendants and denying her motion to strike affidavits For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY Plaintiff Stella Michelle Fournerat filed a wrongful death action defendants Edward J Gay Planting and Manufacturing Ltd EIG Planting Planting Inc St Louis Planting against St Louis Farm Bureau Insurance Company Farm Bureau and Louisiana Farm Bureau Casualty Insurance Company Louisiana Farm Bureau sometimes collectively referred to hereinafter as defendants after the death of her fortyfive yearold son Wendell Fournerat who lived with her at her home in Plaquemine Louisiana In an original and two supplemental and amending petitions Ms Fournerat alleged that 1 Wendell died as a result of injuries he sustained in an accident while he operated a three wheeler on property in Plaquemine Louisiana owned by EJG Planting and leased as an agricultural tenant by St Louis Planting where he encountered a concealed and unprotected excavation which was dug to accommodate a drain pipe that led underground to a drainage ditch or canal 2 EJG Planting and St Louis Planting knew or should have known that the property was frequently traversed by individuals 3 a cause of the accident was EIG Planting and St Louis Planting negligence in failing to s cover the drainage pipe or cordoning off or posting signs to indicate the location of the excavation 4 Wendell was treated at River West Medical Center but Dr Smith and the staff of River West failed to identify and treat the internal injuries that Wendell suffered in the accident 5 a cause of Wendell death was Dr Smith and the River West staffs s 1 Counsel for Louisiana Farm Bureau answered the original petition indicating it had been erroneously identified in the petition as Farm Bureau Insurance Company 2 Ms Fournerat second amending petition also named River West Medical Center Properties LLC d ba s River West Medical Center River West and Dr James Dumon Smith as additional defendants The claims against Dr Smith were dismissed with prejudice on a motion for summary judgment filed by Dr Smith Judgment was signed accordingly by the trial court on November 10 2010 and has not been appealed by Ms Fournerat As for River West a Notice Of Bankruptcy Stay was filed into the record on March 3 2009 indicating that on February 6 2009 an Involuntary Petition of bankruptcy was filed in the United States Bankruptcy Court naming River West as a debtor in bankruptcy PA medically negligent care 6 Wendell suffered great pain and agony before his death ri and was conscious of the fact that he was dying 7 she has incurred medical and funeral expenses and will suffer grief mental anguish and financial loss and 8 Louisiana Farm Bureau provided a policy of liability insurance 4 Ms Fournerat prayed for a money judgment against defendants jointly and in soido EIG Planting and Louisiana Farm Bureau answered the original petition praying for judgment in their favor and against Ms Fournerat that would deny her claims with prejudice and dismiss her claims at her cost St Louis Planting and Louisiana Farm Bureau answered the original and first amending and supplemental petition admitting there was a policy of insurance in force that named St Louis Planting as the insured and seeking the dismissal of plaintiffs suit at her cost St Louis Planting Louisiana Farm Bureau Mutual Insurance Company and Southern Farm Bureau Casualty Insurance Company answered Ms Fournerat second amending and supplementing petition for s damages generally denying the allegations contained therein In that answer St Louis Planting and its insurers also alleged that St Louis Planting was immune from liability for the damages allegedly suffered arising out of the accident at issue in accordance with the Recreational Use Immunity Statutes La R 9 and 9 S 2791 2795 Emphasis in original On May 18 2010 St Louis Planting Louisiana Farm Bureau Mutual Insurance Company and Southern Farm Bureau Casualty Insurance Company filed a motion for 3 One of plaintiffs amending and supplemental petitions alleged that her claims against Dr Smith and River West Medical Center had been submitted to a medical review panel and that an opinion had already been issued 4 Ms Fournerat erroneously named Farm Bureau as a defendant in the original and amending and supplemental petitions 5 In a supplemental and amended answer St Louis Planting also alleged in pertinent part St Louis Planting knew that the general public and adjoining neighbors traveled on the headland roads and specifically the headland at issue for their own recreational purposes St Louis Planting did not attempt to prohibit the recreational use of the premises by the general public to the extent that the recreational use by the general public did not interfere with its farming operations 3 summary judgment seeking the dismissal of Ms Fournerat claims against these s particular defendants with prejudice These movers asserted that the motion should be decided on the Recreational Use Immunity Statutes RUS outlined in La R 9 S 2791 and 9 and that the activity of the deceased was within the recreational 2795 requirement of the RUS Alternatively movers asserted the drain at issue was not a hidden condition but rather was open and obvious and not a defective condition Various affidavits and depositions were filed into the record in support of the motion and the motion for summary judgment was set for hearing On May 25 2010 E Planting and Louisiana Farm Bureau also filed a motion for G summary judgment urging the plaintiff seeks to hold EJG Planting liable for an accident which occurred while the decedent was engaged in recreational activity on that is clearly covered by the Recreational Use Statutes property Therefore a question of whether E Planting is immune under the RUS is an issue that is susceptible of G summary judgment Pursuant to this motion counsel prayed that judgment would be granted in their favor as a matter of law In the supporting memorandum counsel urged that Ms Fournerat claims against EJG Planting must be dismissed s Ms Fournerat filed 1 a motion to strike two of the affidavits that movers had filed in support of the motion and 2 an opposition memorandum that asserted among other arguments the land in question is not rural the land is not exclusively used for recreational purposes by non employees of defendants and the drainage structure is not open and obvious EJG Planting and Louisiana Farm Bureau filed a reply brief to Ms Fournerat s opposition to the motion for summary judgment wherein movers argued The RUS Statutes as Amended in 2001 Do Not Require that the Property be Rural Emphasis in original Movers asserted By Acts 2001 No 1199 the legislature inserted urban or rural preceding land roads water in the definition of Land as set forth in La R 9 S 2795 The legislature plainly intended to clarify and expand the 6 The motion collectively referred to these insurers as Farm Bureau application of the RUS Movers asserted the land was being used by Wendell for a statutorily defined recreational purpose as defined in La R 9 f S 2795 urthermore 3 A movers argued that the drainage structure was clearly covered by the RUS St Louis Planting fled its reply memorandum in support of its motion urging Defendants assert that this motion for summary judgment should be decided on the Recreational Use Immunity Statutes RUS set out in La R 9 and 9 S 2791 2795 Plaintiff agrees but has relied upon the RUS as interpreted prior to the statutory amendment in 2001 Following a November 10 2010 hearing on the motions the trial court signed a December 9 2010 judgment which ordered in pertinent part as follows The Court considering the resolution of the motions for summary judgment to be purely a matter of law IT IS ORDERED that Defendants motions for summary judgment are granted the Court finding the RUS is applicable to the land in question and that the 2001 amendment to La R 9 which added the word S 2795 urban renders the question whether the land is rural andor undeveloped moot The court hereby adopts argument of defense counsel as its reasons for judgment IT IS FURTHER ORDERED that Plaintiffs sic motion to strike is denied Ms Fournerat sought a timely appeal from this judgment On September 21 2011 this court issued a Rule to Show Cause Order why the appeal should not be dismissed because the December 9 2010 judgment appeared to be a partial judgment In accordance with this court order the trial court signed a new judgment on February s 8 2012 granting judgment in favor of defendants and against Ms Fournerat dismissing her claims against defendants at her costs In a March 19 2012 order this court maintained Ms Fournerat sappeal On appeal Ms Fournerat assigns the following specifications of error for our review The trial court was in error in finding La R 9 applicable to S 2795 the land in question and disregarding the inquiry into whether the land is rural undeveloped and nonresidential 1 5 2 The trial court failed to strike the affidavit of Richard Bengtson despite the fact that it lacks scientific support and his investigation was inadequate John Gay is neither a surveyor nor an engineer and cannot offer the opinion he does LAW AND ANALYSIS Standard ofReview and Genera Principles of Summary Judgment Summary judgment is subject to de novo review on appeal using the same standards applicable to the trial court determination of the issues s Communications Vertex Aerospace LLC 2009 1202 p Berard v L 3 5 La App 1 Cir 10 12 2 35 So 334 339340 writ denied 2010 0715 La 6 38 So 302 3d 10 4 3d The summary judgment procedure is expressly favored in the law and is designed to secure the just speedy and inexpensive determination of non domestic civil actions La Code Civ P art 966 Its purpose is to pierce the pleadings and to assess the 2 A proof in order to see whether there is a genuine need for trial Hines v Garrett 20040806 p 7 La 6 876 So 764 769 per curiam Summary judgment is 04 25 2d appropriate if the pleadings depositions answers to interrogatories admissions and affidavits in the record 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 Code Civ P art 966 6 On a motion for summary judgment the burden of proof is on the mover If however the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment the mover burden on the s motion does not require that all essential elements of the adverse party claim action s or defense be negated Instead the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party s claim action or defense Thereafter the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial If the adverse party fails to meet this burden there is no genuine issue of material fact and the mover is entitled to summary judgment La Code Civ P art 2 C 966 Janney v Pearce 2009 2103 p 5 La App 1 Cir 5 40 So 285 10 7 3d 288289 writ denied 20101356 La 9 45 So 1078 10 24 3d 2 In ruling on a motion for summary judgment the judge role is not to evaluate s the weight of the evidence or to determine the truth of the matter but instead to determine whether there is a genuine issue of triable fact Hines 20040806 at 1 876 2d So at 765 Despite the legislative mandate that summary judgments are now favored factual inferences reasonably drawn froin the evidence must be construed in favor of the parry opposing the motion and all doubt must be resolved in the s opponent favor Willis v Meddlers 2000 2507 p 2 La 12 775 So 1049 00 8 2d 1050 per curiam Applicability of the RUS The first issue on appeal is whether the RUS are applicable thereby immunizing defendants from liability Ms Fournerat argues the trial court erred when it applied La S 2795 R 9 to property that is not used primarily for recreation and is not rural undeveloped and non residential She further asserts that there is no evidence in the record regarding what use Wendell was making of the property at the time of the accident Thus according to Ms Fournerat defendants are not entitled to the immunity provided by the RUS Limitation of liability is statutorily afforded to owners and operators of property used for recreational purposes pursuant to La R 9 and 9 At the outset S 2791 2795 we note that the statutes relate to the same subject matter and are to be read 2d together Keelen v State Dept of Culture Recreation and Tourism 463 So 1287 1289 La 1985 Louisiana Revised Statutes 9 and 9 were originally 2791 2795 enacted as 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 Except for some stylistic differences minor changes in phraseology and enactment eleven years apart both acts essentially accomplish the same purpose In separate years the Legislature passed these two remarkably similar statutes designed to encourage landowners to open their lands on a basically nonprofit basis for recreational use Richard v Hall 2003 1488 pp 21 22 La 4 874 04 23 2d So 131 147 7 The RUS are in derogation of common or natural right and therefore are to be strictly interpreted and must not be extended beyond their obvious meaning Monteville v Terrbonne Parish Consol Government 567 So 1097 1100 La 2d 1990 However the enactment of La R 9 a second more expansive immunity S 2795 statute evidences an intent on the Legislature part that these statutes are to grant a s broad immunity from liability Richard 2003 1488 at 28 874 So at 151 2d statement of purpose of La R 9 is contained in 1975 La Acts No 615 S 2795 provides The 1 and The purpose of this Act is to 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 Richard 2003 1488 at 26 874 2d So at 150 Furthermore 1975 La Acts No 615 7 provides that all laws or parts of laws in conflict with La R 9 are repealed S 2795 Inasmuch as La R 9 as S 2795 enacted by Act 615 of 1975 was the later expression of legislative will and has been amended six times we conclude that the legislature has impliedly expressed an intention that La R 9 be controlling as between these two statutes S 2795 See Peterson v Western World Ins Co 536 So 639 643 La App 1 Cir 1988 writ 2d denied 541 So 858 La 1989 Thus if there is a conflict between the statutes the 2d later enacted one La R 9 controls Richard 2003 1488 at 28 874 So at S 2795 2d 151 At all times pertinent hereto La R 9 provided as follows S 2791 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 warning of any hazardous conditions use of structure or activities on such premises to persons entering for such purposes whether the hazardous condition or instrumentality causing the harm is one normally encountered in the true outdoors or one created by the placement of structures or conduct of commercial activities on the premises 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 purposes 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 B This Section does not exclude any liability which would otherwise exist for deliberate and willful or malicious injury to persons or property nor does it create any liability where such liability does not now exist Furthermore the provisions of this Section shall not apply when the premises are used principally for a commercial recreational enterprise for profit existing law governing such use is not changed by this Section The word premises as used in this Section includes lands roads waters water courses private ways and buildings structures C machinery or equipment thereon D The limitation of 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 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 later enacted statute La R 9 pertinently provided S 2795 B 1 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 a Extend any assurance that the premises are safe for any purposes b Constitute such person the legal status of an invitee or licensee to whom a duty of care is owed c Incur liability for any injury to person or property caused by any defect in the land regardless of whether naturally occurring or man made 2 The provisions of this Subsection shall apply to owners of commercial recreational developments or facilities for injury to persons or property arising out of the commercial recreational activity permitted at the recreational development or facility that occurs on land which does not comprise the commercial recreational development or facility and over which the commences owner has occurs or no control terminates when on the the recreational commercial activity recreational development or facility Historically the following threepart jurisprudential test was utilized determining whether a defendant would be afforded immunity under the RUS in First the land upon which the injury occurs must be undeveloped non residential and rural or semirural Second the injury itself must be the result of recreation that can be pursued in the true outdoors Third the injury causing instrumentality must be of the type normally encountered in the true outdoors and not of the type usually found in s someone backyard Keelen 463 So at 12901291 2d However the legislature effectively removed the first prong of this test in 2001 when it amended La R 9 S 2795 we by adding the phrase urban or rural to section A and the phrase whether urban 1 or rural to section E Prior to its amendment in 2001 La R 9 did not a 2 S 2795 specifically include urban land Moreover in 1995 La R 9 was amended S 2795 c 1 B to substitute caused by any defect in the iand regardless of whether naturally occurring or man made for incurred by such person Thus the third prong of the test was also removed Applying the above legal precepts to this case and having thoroughly reviewed the evidence in the record we agree with the trial court conclusion that summary s judgment in favor of defendants was warranted The purpose of the property where the subject drain was located was for commercial activity to facilitate St Louis Planting s sugarcane farming operations The record is replete with evidence that prior to this incident both EJG Planting and St Louis Planting knew that the general public and neighbors traveled on the headland road at issue and did nothing to stop this recreational use of the property as long as it did not interfere with the sugarcane farming operations Furthermore neither EJG Planting nor St Louis Planting ever requested or received any form of compensation for the recreational use of the property It is clear from the record that at the time of the accident Wendell was within the recreational requirement of the RUS Pursuant to La R 9 activities S 2795 3 A for recreational purposes for which the owner andor lessee of land are immune include motorized vehicle operation for recreation purposes Based on the evidence below there exists no disputed material fact that Wendell was on the property for anything other than a recreational purpose when the alleged accident occurred Given the facts and circumstances herein the arguments made by Ms Fournerat on appeal regarding the RUS are without merit Ms Fournerat failed to bear her burden of producing evidence that there were genuine issues of material fact remaining as to any of the issues relative to the applicability of the RUS and her claims against defendants Accordingly summary judgment was appropriate iii Motion to Strike Affidavits Ms Fournerat next argues on appeal that the trial court erred in denying her motion to strike the affidavits of Richard Bengtson and John Gay In the motion to strike Ms Fournerat alleged that the affidavits were not supported by data a proper investigation training or experience On appeal Ms Fournerat adds that the Bengtson affidavit lacks scientific support and his investigation was inadequate and that John Gay is neither a surveyor nor an engineer and cannot offer some of the opinions he does In response defendants maintain that even if the motion to strike the affidavits should have been granted the trial court action resulted in harmless error as nothing s in either affidavit was relied upon by defendants concerning the RUS legal issue Rather defendants maintain there was ample evidence presented in the form of deposition testimony that supported their position on the RUS issue without the need for the affidavits We agree with defendants and find no abuse of discretion in the trial s court decision denying the motion to strike the affidavits See In re Succession of Wagner 20080212 p 7 La App 1 Cir 8 993 So 709 716 Generally the 08 2d trial court is granted broad discretion on its evidentiary rulings and its determinations will not be disturbed on appeal absent a clear abuse of that discretion 1618 T4IM HoW For the above and foregoing reasons we affirm the judgment of the trial court and assess all costs associated with this appeal against plaintiff Stella Michelle Fournerat AFFIRMED 7 The defendants also point to language in Ms Fournerat sappeal brief that impliedly renders moot this very issue In the conclusion of her brief Ms Fournerat when speaking about the affidavits noted as follows Not that the court found the affidavits to be scientifically or factual sufficient or probative fact none of the information provided the court proved to be of any consequence 11 In STELLA MICHELLE FOURNERAT FIRST CIRCUIT 41411 1 I 0 VERSUS STATE OF LOUISIANA FARM BUREAU INSURANCE COMPANY ET AL NO 2011 CA 1344 KUHN J concurring I believe summary judgment was proper in this case on the basis that defendant established that Mr Fournerat was familiar with the headlands and that the alleged defect was open and obvious Accordingly I concur
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