Shelly Benoit v. City of Lake Charles

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CW05-89

SHELLY BENOIT

VERSUS

CITY OF LAKE CHARLES, UNITED STATES SPECIALTY
SPORTS ASSOCIATION AND UNITED STATES NATIONAL
INSURANCE COMPANY

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ON APPLICATION FOR SUPERVISORY WRITS FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 02-4508
HONORABLE WILFORD CARTER, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders,
Marc T. Amy, Michael G. Sullivan, and Elizabeth A. Pickett, Judges.

WRIT GRANTED IN PART AND MADE PEREMPTORY; WRIT DENIED IN
PART; REMANDED.

Thibodeaux, C.J., dissents in part and assigns written reasons.
Saunders, J., concurs in part, dissents in part, and assigns reasons.

H. Alan McCall
Stockwell, Sievert, Viccellio,
Clements & Shaddock, L.L.P.
Post Office Box 2900
Lake Charles, LA 70602
(337) 436-9491
COUNSEL FOR DEFENDANTS/APPLICANTS:
City of Lake Charles
United National Insurance Company
United States Specialty Sports Association

Jeffrey T. Gaughan
Baggett, McCall, Burgess, Watson & Gaughan
3006 Country Club Road
Lake Charles, LA 70605
(337) 478-8888
COUNSEL FOR PLAINTIFF/RESPONDENT:
Shelly Benoit

AMY, Judge.

The plaintiff seeks damages related to a fall occurring at a ballpark owned by

the City of Lake Charles. The defendants filed a motion for summary judgment,

asserting immunity pursuant to La.R.S. 9:2795. The trial court denied the motion.

The defendants filed the instant writ application. For the following reasons, we grant

in part, deny in part and remand for further proceedings.

Factual and Procedural Background

The plaintiff, Shelly Benoit, alleges that she fractured her ankle after she

stepped into a depressed portion of the ground at a park and ballfield owned by the

City of Lake Charles. Mrs. Benoit and her family were visiting the park on that day

to attend a baseball tournament in which her son was participating. The City of Lake

Charles and the United States Specialty Sports Association (USSSA), the

organization allegedly hosting and organizing the tournament, were named as

defendants as was USSSA’s insurer, United National Insurance Company.

The defendants filed a motion for summary judgment, asserting the

applicability of recreational immunity under La.R.S. 9:2795. The motion was denied

by the trial court.

Discussion

The defendants question the trial court’s determination that genuine issues of

material fact remain with regard to who was responsible for creating the depressed

area on the park property. The defendants contend that such a determination is

irrelevant as La.R.S. 9:2795 does not include the condition’s origin as a factor in

determining the applicability of the recreational immunity statute. The plaintiff

contends that La.R.S. 9:2795 is inapplicable in the present case as the injury did not

occur in a “true outdoors” setting, but instead, occurred on a ballfield in a developed

city park.

On appeal, a trial court’s ruling on a motion for summary judgment is reviewed

pursuant to the de novo standard of review. Champagne v. Ward, 03-3211 (La.

1/19/05), 893 So.2d 773. Accordingly, we consider the standard set forth in La.Code

Civ.P. art. 966. Subsection B of that provision requires 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.”

The immunity provision in this case is La.R.S. 9:2795, which provides:

§ 2795. Limitation of liability of landowner of property used for
recreational purposes; property owned by the
Department of Wildlife and Fisheries; parks owned by
public entities

A. As used in this Section:

(1) “Land” means urban or rural land, roads, water,
watercourses, private ways or 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, or nonmotorized vehicle operation for
recreation purposes, nature study, water skiing, ice skating, roller
skating, roller blading, skate boarding, sledding, snowmobiling, snow
skiing, summer and winter sports, or 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.

2

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

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 Section 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.

E. (1) The limitation of liability provided in this Section
shall apply to any lands or water bottoms owned, leased, or managed by
the Department of Wildlife and Fisheries, regardless of the purposes for
which the land or water bottoms are used, and whether they are used for
recreational or nonrecreational purposes.

(2)(a) The limitation of liability provided in this Section shall
apply to any lands, whether urban or rural, which are owned, leased, or
managed as a public park by the state or any of its political subdivisions
and which are used for recreational purposes.

3

(b) The provision of supervision on any land managed as a
public park by the state or any of its political subdivisions does not
create any greater duty of care which may exist and does not create a
duty of care or basis of liability for personal injury or for damage to
personal property caused by the act or omission of any person
responsible for security or supervision of park activities, except as
provided in Subparagraph (E)(2)(d) of this Section.

(c) For purposes of the limitation of liability afforded to parks
pursuant to this Section this limitation does not apply to playground
equipment or stands which are defective.

(d) The limitation of liability as extended to parks in this
Section shall not apply to intentional or grossly negligent acts by an
employee of the public entity.

F. 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 any
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.

With regard to the City of Lake Charles, the defendants’ submission to this

court establishes that Nelson Road Park, the ballfield where the plaintiff’s fall

occurred, is a public park and recreational complex available for public use. The

defendants submitted the deposition of William F. Edwards, assistant director of the

City’s recreation department. His testimony establishes that the park has both soccer

and baseball fields open to the public. As stated above, the plaintiff’s deposition

establishes that she was at Nelson Road Park on the date of the accident, May 26,

2002, to attend a baseball tournament. She explained that she paid a fee to attend the

tournament when she entered the parking lot and that the tickets were being sold by

USSSA baseball.

Considering these established facts, we conclude that La.R.S. 9:2795 is

applicable to the City. Subsection (B)(1) states that “an owner of land, . . ., who

permits with or without charge any person to use his land for recreational purposes

4

as herein defined does not thereby . . . (c) [i]ncur liability for any injury to person or

property caused by any defect in the land regardless of whether naturally occurring

or man-made.” Thus, the trial court’s conclusion that the origin of the depression was

uncertain is of no consequence to the applicability of the statute in this situation.

Furthermore, the definition of “land,” contained in La.R.S. 9:2795(A)(1), is

sufficiently expansive so as to cover this park. Although the plaintiff suggests that

this property is not covered by the statute as it is a developed park located in the city,

we note that the statute was revised in 2001 to include “urban or rural land, roads,

water, watercourses, private ways or buildings, structures, and machinery or

equipment when attached to the realty.” La.R.S. 9:2795(A)(1) (emphasis added). See

also La.R.S. 9:2795(E)(2)(a), which specifically provides that the statute’s limitation

of liability “shall apply to any lands, whether urban or rural, which are owned, leased,

or managed as a public park by the state or any of its political subdivisions and which

are used for recreational purposes.” The cases relied upon by plaintiff, which feature

rural settings, are cases in which the injuries occurred prior to the revisions.1 We

make no determination as to the continuing relevance of those cases and recognize

simply that the plain wording of La.R.S. 9:2795(A)(1) and (E)(2)(a) indicate that it

is applicable to this property. See La.R.S. 1:4, which provides that: “When the

wording of a Section is clear and free of ambiguity, the letter of it shall not be

disregarded under the pretext of pursuing its spirit.” See also Richard v. Hall, 03-

1488, p. 22 (La. 4/23/04), 874 So.2d 131, 148, citing La.Civ.Code art. 9 in its

consideration of La.R.S. 9:2791 and La.R.S. 9:2795 for the proposition that “[w]hen

a statute is clear and unambiguous and its application does not lead to absurd

1
See, e.g., Adams v. Hartford Accident & Indem. Co., 525 So.2d 1211 (La.App.1 Cir. 1988),
wherein the first circuit denied the defendant’s request for immunity for injury occurring to the
plaintiff after a collision with a chain link fence at a ballpark. The first circuit reasoned that a chain
link fence was not expected to be found in the “true outdoors.” Again, we note that the statute was
revised in 2001, and now includes not only rural lands, but those in urban settings as well.

5

consequences, the statute is applied as written, and no further interpretation may be

made in search of legislative intent.”

Furthermore, we conclude that the definition of “recreational purposes”,

contained in La.R.S. 9:2795(A)(3) includes the type of baseball tournament attended

by the plaintiff. Subsection (A)(3) indicates that the term “recreational purposes”

“includes but is not limited to any of the following, or any combination thereof: . . .

summer and winter sports[.]” Certainly baseball must be considered to be a summer

sport. Notwithstanding the fact that we conclude that this activity is included within

the Subsection’s listed recreational purposes, the list is expressly a nonexclusive one.

Accordingly, the use of the park for this purpose fits within the statute.

Finally, we find no merit in the plaintiff’s contention that immunity is not

available to the City under the statute as it was a “commercial enterprise.” See

La.R.S. 9:2795(B)(1), which indicates that the immunity provision is inapplicable to

“an owner of commercial recreational developments or facilities.” The plaintiff stated

that she paid a fee to attend the baseball tournament. She estimated that she was

charged $3.00 while her children were charged $2.00. Again, she explained that the

tickets were sold by USSSA, not the City. Furthermore, there is no evidence

indicating that there was a fee charged by the City. Even if a fee was charged by the

City, this does not indicate that it was operated as a commercial enterprise within the

terms of the statute. Instead, La.R.S. 9:2795(B)(1) indicates immunity extends to an

owner of land “who permits with or without charge any person to use his land for

recreational purposes[.]” (Emphasis added.) Moreover, as indicated above, La.R.S.

9:2795(E)(2)(a) specifically addresses the applicability of immunity to a public park

operated by a political subdivision of the state.

6

As we find that the City has demonstrated that the immunity provision of

La.R.S. 9:2795 is applicable in this case, we conclude that the trial court erred in

denying the motion for summary judgment in the City’s favor.

The remaining question is whether summary judgment is appropriate in favor

of USSSA. Based on the showing made, we find that summary judgment is not

appropriate. The submission in favor of the motion for summary judgment, insofar

as it is presented to this court, is deficient in evidence regarding USSSA’s alleged

sponsorship of the event, its use of the field at the ballpark, and the fees associated

with the tournament. Mr. Edwards’ testimony was general in nature regarding soccer

associations’ use of the park’s fields and even less specific regarding the nature of

baseball associations’ use of the baseball fields. Accordingly, we make no

determination regarding whether La.R.S. 9:2795 will be found to be ultimately

applicable to USSSA. Rather, we find that based upon the showing made, the

evidence is insufficient to do so. Accordingly, the trial court did not err in refusing

to grant the motion for summary judgment in favor of USSSA.

DECREE

For the foregoing reasons, the relators’ writ application is granted in part and

summary judgment is entered in favor of the City of Lake Charles and made

peremptory. The plaintiff’s petition is dismissed insofar as it related to this

defendant. The relator’s writ application is denied in part as it relates to the United

States Specialty Sports Association and United National Insurance Company. Costs

of this proceeding are assigned one-half to the plaintiff and one-half to the

defendants, United States Specialty Sports Association and United National Insurance

Company. This matter is remanded for further proceedings.

WRIT GRANTED IN PART AND MADE PEREMPTORY; WRIT DENIED IN
PART; REMANDED.

7

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-89

SHELLY BENOIT

VERSUS

CITY OF LAKE CHARLES, UNITED STATES SPECIALTY SPORTS
ASSOCIATION AND UNITED STATES NATIONAL INSURANCE
COMPANY

THIBODEAUX, C.J., dissenting in part.

The trial judge was correct in denying the City’s Motion for Summary

Judgment. The majority errs by reversing the judgment of the trial court.

The purpose of La.R.S. 9:2795, as stated in 1975 La. Acts, No. 615, §

1, 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.” Contrary to the majority’s assertion, La.R.S.

9:2795(E)(2)(a) is not clear and unambiguous. That section refers to lands which are

used for “recreational purposes.” Section (A)(3), which defines “recreational

purposes,” is hardly a model of clarity when applied to one who, as in this case, is a

spectator and not an active participant. As Judge Saunders aptly points out, section

(A)(3) suggests an active participation in the activities listed in that section. Further,

§ 1 of Act No. 615 of 1975 clearly indicates the purpose of the recreational use statute

is to limit an entity’s liability toward “persons entering thereon for such purposes,”

i.e., recreational purposes. The majority fails to tell us what recreational purpose Ms.

Benoit was engaging in as anticipated by the statute. Louisiana Revised Statutes

9:2795 does not on its face extend to a spectator like Ms. Benoit. Because this

recreational use statute impinges on common and statutorily-given rights to redress,

it must be interpreted strictly and should not be extended beyond its obvious meaning.

Richard v. Hall, 03-1488 (La. 4/23/04), 874 So.2d 131. As Richard v. Hall further

explains:

When a law is susceptible of different meanings, ‘it
must be interpreted as having the meaning that best
conforms to the purpose of the law.’ . . . The statute must
therefore be applied and interpreted in a manner that is
logical and consistent with the presumed fair purpose and
intention the legislature had in enacting it. . . . This is
because the rules of statutory construction require that the
general intent and fair purpose of the legislature in
enacting it must, if possible, be given effect.

Id. at 149 (citations omitted).

What, then, was the presumed fair purpose and intention of the

legislature in enacting La.R.S. 9:2795? Our supreme court in Keelen v. State,

Department of Culture, Recreation, & Tourism, 463 So.2d 1287, 1290 (La.1985)

opined that “the legislature intended to confer immunity upon owners of

undeveloped, nonresidential rural or semi-rural land areas.” A court must, therefore,

consider the characteristics of the property. Further,

. . . reference to the types of recreational activities
specified in the statutes (hiking, boating, horseback riding,
etc.) indicates that the legislature envisioned immunity for
landowners who offer their property for recreation that can
be pursued in the ‘true outdoors.’ When the injury-causing
condition or instrumentality is of the type normally
encountered in the true outdoors, then the statutes provide
immunity. Conversely, when the instrumentality, whether
found in an urban or rural locale, is of the type usually
found in someone’s backyard, then the statutes afford no
protection.

Id.

2

Keelen concluded than an injury in a swimming pool in a state park was

not subject to an immunity defense, even though swimming was an activity included

in La.R.S. 9:2795. Rather, “the legislature intended to grant immunity for injuries

incurred while swimming in lakes, rivers, ponds or other similar bodies of water.”

Id. at 1291. The supreme court in Keelen remanded for a determination of whether

the state park was a nonresidential, unimproved rural or semi-rural property.

In an apparent response to Keelen, the legislature amended La.R.S.

9:2795 by Acts 2001, No. 1199, § 1 by inserting “urban or rural” preceding “land,

roads, water” in Section (A)(1). Nonetheless, Keelen appears to be solid

jurisprudential authority for it was cited in Richard v. Hall, 874 So.2d 131.

Following Keelen, the extension of immunity to the owner of property

used for recreational purposes must comport with a three-part test: (1) the

characteristics of the land must be examined—the land must be “open and

undeveloped expanses of property;” (2) the recreational activity must be one that can

be performed in the “true outdoors;” and, (3) the instrumentality causing the injury

must be one typically found in the true outdoors and not in someone’s back yard.

Deumite v. State, 95-1263 (La. 2/28/96), 668 So.2d 727; Deumite v. State, 94-1210

(La.App. 1 Cir. 2/14/97), 692 So.2d 1127 (on remand), writ denied, 97-1409 (La.

9/26/97), 701 So.2d 984.

Deumite, 692 So.2d 1127, in an extensive examination of these factors,

gave examples of locations which have not satisfied the first prong of the three-part

test. For example, a playground within the city limits of Kenner, Louisiana in

Herbert v. City of Kenner, 501 So.2d 901 (La.App. 5 Cir. 1987) and a recreational

area within a populated city near a residential area of a town or city in Landry v.

Board of Levee Commissioners of Orleans Levee District, 477 So.2d 672 (La.1985),

3

and Ratcliff v. Town of Mandeville, 502 So.2d 566 (La.1987) have not been

immunized areas. The cases which have not fit within the third prong of Keelen’s

three-part test include a dock located at a civic center complex within corporate city

limits in Brooks v. City of Lake Charles, 488 So.2d 465 (La.App. 3 Cir. 1986) and a

children’s slide in a town park in Wadsworth v. Town of Berwick, 484 So.2d 762

(La.App. 1 Cir. 1986).

The location of the injury in this case and the status of the injured party

as a spectator do not satisfy Keelen’s three-part test. The majority errs.

Moreover, the majority’s analytical model is much too broad and turns

the interpretation of this restrictive statute topsy-turvy. Louisiana Revised Statutes

9:2795 has to be construed strictly, not broadly. The majority errs again. If we were

to extend the broad statutory construction used by the majority, a “public park” in

Section (E)(2)(a) may be characterized as common property, subject to certain

regulatory limitations by a municipal, parish, or state authority. See e.g., Crick v.

Ward Four Recreation Comm’n, 256 So.2d 840 (La.App. 3 Cir. 1972).

Consequently, anyone attending a recreational event at the Louisiana Superdome, at

a ballpark on the campus of a state college, or at a municipal or parish-owned facility

would be deprived of a right to sue that public entity in tort for an injury. Surely, this

was not the intent of the legislature.

The majority has subverted the intent of the legislature and has done

injury to legitimate tort victims with a result that does not withstand analytical

analysis or jurisprudential precedent.

For the foregoing reasons, I respectfully dissent in part.

4

NUMBER CW 05-89

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

SHELLY BENOIT

VERSUS

CITY OF LAKE CHARLES

SAUNDERS, J. concurs in part, dissents in part, and assigns reasons.

After reviewing the language of La.R.S. 9:2795, its seems clear to me that this

statute is inapplicable to the organized baseball underlying this action.

I note at the outset that laws that limit a tort victim’s rights are to be construed

strictly. Monteville v. Terrebonne Parish Consol. Gov’t., 567 So.2d 1097, 1100.

With this strict construction as a backdrop, I consider the language describing the

activities covered by La.R.S. 9:2795. Specifically, those activities are:

hunting, fishing, trapping, swimming, boating, camping,
picnicking, hiking, horseback riding, bicycle riding,
motorized, or nonmotorized vehicle operation for
recreation purposes, nature study, water skiing, ice skating,
roller skating, roller blading, skate boarding, sledding,
snowmobiling, snow skiing, summer and winter sports, or
viewing or enjoying historical, archaeological, scenic, or
scientific sites.

The majority states that “[c]ertainly baseball must be considered to be a summer

sport.” I disagree.

First, as noted above, this statute must be strictly construed. According to the

majority position, our legislature felt that ice-skating and snowmobiling were worthy

of specific notice while baseball, an activity so inexorably linked to our culture that

it is known as the national pastime, merely warrants inclusion via a catch all

provision. La.R.S. 9:2795 does state that the list is illustrative; however, I find that

if the legislature meant to include an activity as well known and recognized as

organized baseball, they would have listed it. Indeed, organized baseball, football,

and soccer are all notably absent from the statute leading me to believe that these

activities are not covered by La.R.S. 9:2795.

If our national pastime was intended to fall under a phrase as generic as

“summer or winter sports[,]” there is no need to specifically list any other activities.

The legislature did, however, make the effort to specifically list other pastimes.

According to the doctrine of sui generis, that list must be used as a guide when

interpreting the catch all provision of the statute. One glaring difference between

organized baseball and the other activities is organization itself. Not one amendment

made to La.R.S. 9:2795 lists an organized sport. Not one activity specifically listed

is an organized sport. Rather, they are individual endeavors performed at one’s

leisure. Organized baseball is a team sport that is played and practiced at

predetermined times under the supervision of umpires responsible for maintaining

order that is created by a specific set of rules.

This distinction is compelling and in harmony with the stated purpose of

La.R.S. 9:2795, which is to make tracts of land available for recreational purposes.

While organized baseball is a recreational activity, it is simply not logically related

to any of the activities specifically mentioned by the legislature. Every other activity

involves use of the land as it is found. Organized baseball is played in a

manufactured environment. While skateboarders and the like may use manufactured

benches or steps in the course of their activity, those benches and steps weren’t

constructed for that purpose. They are simply things constructed for a practical

purpose that someone might find useful in recreational pursuits. A baseball field, as

well as football and soccer fields, is built for only one purpose. Furthermore,

activities listed in La.R.S. 9:2795 are participatory by nature but the plaintiff here was

a spectator.

Additionally, the fact that plaintiff went to the premises as a spectator appears

to have been lost in the analysis. Even if organized baseball is considered to fall

under “summer or winter sports[,]” an interpretation I disagree with, the fact remains

that plaintiff did not engage in that activity. In addition to spectators, many people

go to baseball parks with no intention of engaging in that sport. Babysitters take

children, deliverymen deliver concessions and the like, vendors go to work in the

concession stands and elected officials go to campaign. The majority opinion,

however, makes no distinction between people who actually participate in the

recreational activity and those who do not. The statute at issue, on the other hand,

only lists participatory activities. I find that the dissimilarity between organized

baseball and the other activities listed, the distinction between participatory and

spectator activities, a strict construction of the statute, and the doctrine of sui generis

prohibit the conclusion that plaintiff herein was somehow engaged in an activity

covered by La.R.S. 9:2795.

Furthermore, the idea that baseball is a “summer sport” is totally without

support. Summer begins on June 21 and ends on September 20. Professional

baseball is played in the spring (spring training), in the summer, and ends with the fall

classic (World Series). Collegiate baseball teams begin playing games in February

(winter) and the season ends in late June with only 5-6 games played by 3-4 teams

during the summer. High school baseball begins in January (winter) and ends in May

(spring). Little League baseball begins in March (spring) and ends in June (summer).

How are summer sports defined? Are they sports that begin in the summer? In that

case, baseball is not a summer sport on any level. If we go by when a sport ends,

collegiate baseball is a summer sport but professional and high school are not.

Finally, if they consist of any sport that is played at any time during the summer,

professional baseball is a summer sport; collegiate baseball is a summer sport for 3-4

teams in the nation and high school baseball is not a summer sport. Indeed, baseball,

unlike “summer and winter sports[,]” is not dependant upon weather conditions (i.e.

swimming in the summer, skiing in the winter).

Finally, I note that the most prevalent four organized sports (baseball, football,

soccer, and basketball) are not mentioned by La.R.S. 9:2795. This fact is compelling.

I simply cannot conclude that the legislature either forgot to mention the most popular

sports played in Louisiana or that they consciously decided that these activities did

not warrant specific attention. The absence of baseball, football, soccer and

basketball from La.R.S. 9:2795 must be considered as an intentional omission.

Accordingly, I respectfully dissent insofar as the majority’s opinion dismisses the

action against the City of Lake Charles. I would affirm the trial court in its entirety.