Fournerat v. Farm Bureau Insurance Co.
104 So. 3d 76
La. Ct. App.2012Background
- Plaintiff filed a wrongful death action against EJG Planting, St. Louis Planting, Farm Bureau, and Louisiana Farm Bureau.
- Wendell Fournerat died after an accident involving a three-wheeler on land owned by EJG Planting and leased to St. Louis Planting in Plaquemine, LA.
- Plaintiff alleged the excavation for a drainage pipe created a hidden hazard that defendants failed to cover, cordon, or warn about.
- Defendants moved for summary judgment arguing Recreational Use Immunity Statutes (RUS) applied to Wendell’s recreational use of the land and that the drain was open and obvious.
- The trial court granted summary judgment in favor of defendants, holding the 2001 amendment to 9:2795 made the rurality inquiry moot and that Wendell’s activity fell within recreational use.
- On appeal, the plaintiff challenged (i) RUS applicability and (ii) the denial of her motion to strike affidavits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the RUS applicable to the land in question? | Fournerat contends the land is not rural/undeveloped and RUS should not apply. | Defendants argue 9:2795, as amended, controls and immunizes land used for recreational purposes regardless of rural status. | RUS applicable; trial court properly granted summary judgment. |
| Did the trial court err in denying the motion to strike affidavits? | Affidavits lack scientific support and were inadequately prepared. | Even if stricken, affidavits were not essential to the RUS ruling; depositions supported the decision. | No abuse of discretion; denial of motion to strike affirmed. |
| Was Wendell's activity at the time of the accident within the recreational use scope? | Plaintiff contends the use was not recreational or public usage constituting RUS immunity. | Wendell’s motorized vehicle use on land used for sugarcane farming constitutes recreational use under 9:2795(A)(3). | Yes; Wendell’s conduct satisfied the recreational purpose requirement. |
Key Cases Cited
- Keelen v. State, Dept. of Culture, Recreation and Tourism, 463 So.2d 1287 (La. 1985) (statutes read together; strict interpretation but broad immunity when amended)
- Richard v. Hall, 874 So.2d 131 (La. 2004) (legislative intent to grant broad immunity under 9:2795; later statute controls)
- Monteville v. Terrbonne Parish Consol. Government, 567 So.2d 1097 (La. 1990) (strict interpretation of RUS; limits of immunity)
- Peterson v. Western World Ins. Co., 536 So.2d 639 (La. App. 1 Cir. 1988) (comparison of conflicting statutory provisions; later statute prevails)
- Hines v. Garrett, 876 So.2d 764 (La. 2004) (summary judgment standard; weigh evidence not permitted)
- In re Succession of Wagner, 993 So.2d 709 (La. App. 1 Cir. 2008) (evidentiary rulings; abuse of discretion review)
- Willis v. Medders, 775 So.2d 1049 (La. 2000) (summary judgment; inferences construed in favor of non-movant)
- Berard v. L-3 Communications Vertex Aerospace, LLC, 35 So.3d 334 (La. App. 1 Cir. 2010) (evidentiary standard; broad discretion on rulings)
- Richard v. Hall, 874 So.2d 131 (La. 2004) (reiterated for immunities context (duplicate entry to emphasize relevance))