Frank J. Hayes, Jr. v. Burlington Resources Oil & Gas Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1353

FRANK J. HAYES, JR., ET AL.

VERSUS

BURLINGTON RESOURCES OIL & GAS
COMPANY, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2006-4758
HONORABLEDAVID KENT SAVOIE, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Roger G. Burgess
Baggett, McCall , Burgess,
Watson & Gaughan, L.L.C.
3006 Country Club Road
Post Office Drawer 7820
Lake Charles, LA 70606-7820
(337) 478-8888
COUNSEL FOR DEFENDANTS/APPELLEES:
Bridget Voge
John Voge

James R. Nieset
Plauche’, Smith, & Nieset
Post Office Drawer 1705
Lake Charles, LA 70602
(337) 436-0522
COUNSEL FOR DEFENDANT/APPELLEE:
P. B. Energy Storage Services

Vernon Ed McGuire, III
Plauche’, Smith & Nieset
Post Office Drawer 1705
Lake Charles, LA 70602
(337) 436-0522
COUNSEL FOR DEFENDANT/APPELLEE:
Calcasieu Parish Police Jury

Barry A. Roach
Larry A. Roach, Inc.
2917 Ryan Street
Lake Charles, LA 70601
(337) 433-8504
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Christy Johnson
Frank J. Hayes, Jr.

Michael H. Schwartzberg
Vamvoras & Schwartzberg
1111 Ryan Street
Lake Charles, LA 70601
(337) 433-1621
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Christy Johnson
Frank J. Hayes, Jr.

Kenneth R. Spears
C. Thomas Tolbert
Spears & Gary, LLC
One Lakeshore Drive, Suite 900
Lake Charles, LA 70629
(337) 513-4333
COUNSEL FOR DEFENDANT/APPELLEE:
Burlington Resources Oil & Gas Co.

Scott J. Scofield
Scofield, Gerard, Singletary & Pohorelsky, L.L.C.
Post Office Drawer 3028
Lake Charles, LA 70602-3028
(337) 433-9436
COUNSEL FOR DEFENDANT/APPELLEE:
Sasol North America, Inc.

Paul L. Veazey, Jr.
Stockwell, Sievert, Viccellio,
Clements & Shaddock, L.L.P.
Post Office Box 2900
Lake Charles, LA 70602
(337) 436-9491
COUNSEL FOR DEFENDANTS/APPELLEES:
PPG Pipeline
Centerpoint Energy Resources
PPG Industries, Inc.

Henry Dupont Heck Olinde, Jr.
Rachel Marasa Azzarello
Carleton, Dunlap, Olinde, et al
One American Place, 9th Floor
Baton Rouge, LA 70825
(225) 282-0600
COUNSEL FOR DEFENDANT/APPELLEE:
Gravity Drainage District No. 5 of Ward 4

Robert J. Young, III
Young, Richaud & Myers, LLC
3850 North Causeway Boulevard, Suite 1830
Metairie, LA 70002
(504) 799-3500
COUNSEL FOR DEFENDANT/APPELLEE:
Gulf South Pipeline Company

AMY, Judge.

The plaintiffs brought suit on behalf of their minor daughter after she sustained

serious injuries in a four-wheeler accident. Included among the defendants was the

owner of the land and a pipeline right of way where the accident took place. The

owner filed a motion for summary judgment, contending that it was immune from

liability for this accident under Louisiana’s Recreational Use Statutes. The trial court

granted the motion and dismissed the plaintiff’s claims against the owner. The

plaintiffs appeal, asserting that the owner is not entitled to immunity. For the

following reasons, we affirm.

Factual and Procedural History

The plaintiffs, Frank Hayes and Christy Johnson, brought suit seeking recovery

for their minor daughter’s injuries sustained in a four-wheeler accident. In their

petition for damages, the plaintiffs alleged the following circumstances giving rise

to their minor daughter’s injuries:

On or about October 6, 2005, at approximately 9:00 a.m., petitioners’
minor daughter, KALLIE HAYES, was riding as a passenger on a 4-
wheeler being operated by Kristly Voge with Sam Trahan also riding as
passenger. As they were riding eastbound along a pipeline right of way
owned and/or in the custody, care and control of and/or maintained by
the defendants, at the end of Live Oak Street in Sulphur, Calcasieu
Parish, Louisiana, they approached a wooden bridge, which apparently
traversed a gully 20’ deep and approximately 30’ wide. When the 4-
wheeler riders were within only a few feet of the wood bridge, then and
only then, it became apparent that the first 10’ of the west end of the
wooden bridge was missing and in a dilapidated and un-crossable
condition. Due to the driver’s inability to stop, suddenly and without
warning, the 4-wheeler plummeted down into the gully whereupon
KALLIE HAYES was ejected and impaled on a piling below sustaining
multiple serious injuries.

It is undisputed that the girls were traveling on a tract of land owned by

Burlington Resources Oil and Gas Company (Burlington), one of the named

defendants. Burlington had right of way agreements with several other businesses to

operate pipelines running underneath the tract of land. The plaintiffs allege that the

accident was caused by Burlington, among other defendants not a party to the present

appeal, in its failure to keep and maintain the property, and bridge, in a safe

condition.

Burlington filed a motion for summary judgment, seeking dismissal on the

basis of Louisiana’s Recreational Use Immunity Statutes, La.R.S. 9:2791 and La.R.S.

9:2795. On August 20, 2009, the trial court rendered written reasons granting

Burlington’s motion. The plaintiffs appeal, asserting that the trial court erred in

holding that La.R.S. 9:2795 provides Burlington immunity.

Discussion

Summary Judgment

Louisiana Code of Civil Procedure Article 966(B) states that summary

judgment shall be rendered “if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to material fact, and that mover is entitled to judgment as a matter

of law.” In Boykin v. PPG Industries, Inc., 08-117, p. 4 (La.App. 3 Cir. 6/18/08), 987

So.2d 838, 842, writ denied, 08-1635, 08-1640 (La. 10/31/08), 994 So.2d 537, this

court explained the standard of review applicable to motions for summary judgment,

stating:

Appellate courts review a trial court’s grant or denial of a motion
for summary judgment using the de novo standard of review, under the
same criteria that govern the trial court’s consideration of whether a
summary judgment is appropriate in any given case. Indep. Fire Ins. Co.
v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226.

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Recreational Use Immunity Statutes (RUS)

Louisiana Revised Statutes 9:2791 and 9:2795 address landowners’ liability

for property that is used for recreational purposes. These statutes address the same

subject matter and are to be read together. Keelen v. State Dep’t of Culture,

Recreation & Tourism, 463 So.2d 1287 (La.1985). Louisiana Revised Statutes

9:2791 provides, in relevant part:

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.

Louisiana Revised Statutes 9:2795(B) provides:

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.

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(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 owner has no control when the recreational activity
commences, occurs, or terminates on the commercial recreational
development or facility.

Under the language of La.R.S. 9:2791, immunity does not apply “when the

premises are used principally for a commercial, recreational enterprise for profit.”

However, La.R.S. 9:2795 provides that immunity does not apply to owners “except

an owner of a commercial recreational development or facility[.]” The Louisiana

Supreme Court has resolved this conflict in holding:

The enactment of La.Rev.Stat. 9:2795, a second more expansive
immunity statute, evidences an intent on the Legislature’s part that these
statutes are to grant a broad immunity from liability. The amendments
to the statutes indicate the Legislature’s will to expand the immunity.
Our resolution of the conflicting language is in accordance with our duty
to strictly interpret these statutes because they constitute an impairment
to the common or natural right, and we do not extend them beyond their
obvious meaning. Section 2791’s proscription of immunity where the
premises are used principally for a commercial recreational enterprise
for profit has been repealed by Acts 1975, No. 615, § 7, which provides
the immunity to owners, except owners of commercial recreational
developments.

....

Placing a construction on La.Rev.Stat. 9:2795B(1) which is
consistent with the obvious intent of the Legislature results in a
resolution that the person claiming the immunity must utilize the
premises for a commercial recreational enterprise for profit to be
excluded from the immunity provisions.

Richard v. Hall, 03-1488, pp. 29-30 (La. 4/23/04), 874 So.2d 131, 151-52.

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In the present case, the trial court found that Burlington was afforded immunity

under the RUS. The trial court explained that according to Richard, 874 So.2d 131,

it is the owner’s use of the premises which determines the availability of immunity,

and thus, because there was no evidence that Burlington used its property for a

commercial recreational enterprise, immunity applies. The record supports this

finding.

In support of its motion for summary judgment, Burlington submitted an

affidavit stating that the property in question has never been used for commercial

recreational activities. In brief, the plaintiffs do not dispute this fact, stating “there is

no evidence that Burlington has any inclination to allow the public onto its corridor

for recreational purposes.” Rather, the plaintiffs argues that RUS immunity under

La.R.S. 9:2791 and La.R.S. 9:2795 is inapplicable in this case because Burlington

never intended to make the right of way at issue available to the public for

recreational purposes, and thus, it conflicts with the purpose of the statute. However,

this case does not involve the commercial purposes conflict. Rather, this case fits into

the immunity provided in La.R.S. 9:2791.

A panel of this court in Domingue v. Stanley, 01-41 (La.App. 3 Cir. 5/2/01),

784 So.2d 844, was presented with a similar fact pattern presented in the present case.

The Domingue court addressed the issue of whether a landowner’s permission is a

prerequisite to the application of the RUS. In that case, the plaintiffs were involved

in a tragic four-wheeler accident and they brought suit against the owners of the

property where the accident took place. The owners filed a motion for summary

judgment contending that they were immune from liability for the accident. The trial

court granted that motion and the plaintiffs appealed, asserting that because the

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landowner refused to give permission to use the property for ATV recreational

purposes that the landowner had no immunity. The Domingue court rejected the

plaintiffs’ argument citing agreement with the reasoning of the fourth circuit’s

opinion in Verdin v. Louisiana Land & Exploration Co., 96-1815 (La.App. 4 Cir.

3/12/97), 693 So.2d 162, writs denied, 97-1581, 97-1598 (La. 9/26/07), 701 So.2d

994, stating:

In Verdin v. Louisiana Land & Exploration Co., the plaintiffs
claimed they suffered injuries when the skiff in which they were riding
hit a concrete survey marker placed by the defendant at the corner of the
defendant’s property in a marshy area in an open bay. The edges of the
property were posted. The defendant claimed immunity as the owner of
property used for recreational purposes. The plaintiffs claimed that the
defendant was not entitled to immunity for several reasons, including the
absence of permission for them to engage in any recreational use of the
bay. In affirming the trial court’s finding of immunity, the fourth circuit
took issue with the anomalous effect of imposing on a landowner “a
greater duty to a party who goes onto his land for recreational purposes
without his permission than to a person who goes onto his land for
recreational purposes with his permission.” After analyzing La . R.S.
9:2791 and applicable jurisprudence, the court stated:

[T]he record is replete with evidence that the area where
the accident occurred in the instant case was widely used
by the general public for recreational purposes, despite the
fact that [the defendant] posted the area and considered the
persons using the property as trespassers. Although [the
defendant] did not invite the public to use the property for
recreational fishing purposes, even the witnesses testifying
on behalf of the [plaintiffs] at trial admitted that they
frequently use the area. One witness had used the area the
very day he testified. Thus, we find that the general public
was able to use this land for recreational purposes and that
[the defendant] is therefore entitled to the benefits of the
recreational use immunity statutes.

Domingue, 784 So.2d at 847-48 (citations omitted).

Here, as in Domingue, the plaintiffs were able and did in fact enjoy the use of

Burlington’s property for a recreational purpose, regardless of whether they were

invited to do so. In accordance with previous jurisprudence from this court we

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conclude that the trial court did not err in finding that RUS immunity does not

implicitly or explicitly require evidence of an intent on the part of the landowner to

open his property to the public for recreational purposes. Id.

The plaintiffs further argue that neither immunity statute is applicable to the

present case because Burlington’s land “is not the type of land characteristically

envisioned by the statute because it is too small.” Louisiana Revised Statutes 9:2791

provides immunity to owners of “premises” which is defined in the statute as “lands,

roads, waters, water courses, private ways and buildings, structures, machinery or

equipment thereon.” A plain reading of the statute reveals no requirement that land

be of a certain size to be covered under the statutes’s immunity. Further, the record

does not contain any information about the size of Burlington’s land other than the

plaintiffs’ contention that it is too small. Accordingly, the plaintiffs’ assertion that

Burlington is not afforded immunity because of the size of its land is without merit.

The plaintiffs argue that immunity is inapplicable in this case because under

La.R.S. 9:2791, four-wheeling is not one of the enumerated recreational activities

provided immunity. However, Domingue applies the statute to this particular

recreational activity. Furthermore, we note that La.R.S. 9:2791(A) applies not only

to hunting, fishing, etc., but specifically to the more general activity of sightseeing.

Accordingly, we find no error in the trial court’s granting of immunity to Burlington.

Conclusion

The trial court was correct to find that RUS immunity applied to Burlington in

the present case. Kallie Hayes, the injured person, was engaged in the recreational

activity of riding a motorized vehicle, a four-wheeler, on Burlington’s land at the time

she suffered injuries. No evidence was put forward that Burlington intended to harm

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Kallie or that Burlington willfully or maliciously failed to warn Kallie against any

dangerous condition. See La.R.S. 9:2791(B). As such, Burlington is entitled to

immunity as set forth in La.R.S. 9:2791.

DECREE

For the foregoing reasons, the trial court’s judgment granting Burlington’s

motion for summary judgment and dismissing the plaintiffs’ claims against

Burlington with prejudice, is affirmed. All costs of this appeal are assessed against

the plaintiffs-appellants, Frank Hayes and Christy Johnson.

AFFIRMED.

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