Richard v. HallRichard v. Hall
Gary A. Bezet, Carol Galloway, Baton Rouge, Kean, Miller, Hawthorne, D‘Armond, McCowan & Jarman; David I. Bordelon, Ungarino & Eckert; Donald R. Smith, Baton Rouge, Smith & Brumfeld, for Respondent.
KNOLL, Justice.
This is a wrongful death case that concerns a duck hunter who accidentally shot and killed another duck hunter. We are called upon to address two significant areas of tort law, namely, vicarious liability of an employer and the immunity afforded by Louisiana‘s Recreational Use Immunity Statutes.1 Plaintiffs, the widow and child of the deceased, alleged the employer was vicariously liable and/or liable for its own negligence. The district court granted summary judgment in favor of the employer on both theories of tort liability. The majority of the court of appeal affirmed. We granted plaintiffs’ application for a writ of certiorari to consider the correctness, vel non, of their decisions.
FACTS AND PROCEDURAL HISTORY
Screening Systems International, Inc., Louisiana Division (SSI)2, a closely held corporation, entered into a duck hunting lease. SSI paid $10,000 to Loch Leven Plantation for hunting privileges that were to be utilized by three upper level management executives. The three executives authorized to enjoy SSI‘s duck hunting lease were Mr. Henry Watson, Jr., President, Mr. Michael Hall, Vice-President and General Manager, and Mr. George LeBlanc, Engineering Manager.
On January 2, 2000, Mr. Watson and Mr. Hall went to Loch Leven to hunt ducks. Also on that morning, John Richard was at Loch Leven to hunt as the guest of Todd Cavin; Mr. Cavin also held a duck lease at Loch Leven.3 According to the customary practice, numbers were randomly drawn to determine the order in which blinds would be chosen by those who had purchased hunting rights. Todd Cavin drew the number “1” which meant he had first selection of a blind to use that day. Mr. Cavin chose a blind that could accommodate two more people than he had in his party; the location consisted of two sunken blinds abutting each other. Mr.
Mr. Watson, Mr. Hall and Mr. Richard occupied one of the blinds, with Mr. Richard seated in the middle. During the hunt, Mr. Hall accidentally and fatally shot Mr. Richard. Mr. Richard‘s widow, Karen Richard, subsequently filed suit against Michael Hall, SSI, Allstate Insurance Company (Hall‘s homeowner‘s insurance provider), and Empire Insurance Company (SSI‘s general liability insurer). Plaintiffs assert two bases for holding SSI liable: (1) vicarious liability for its employee‘s tortious conduct; and (2) direct liability for its failure to instruct authorized employees and their guests in the proper and safe use of firearms while hunting pursuant to SSI‘s duck lease.
Empire Insurance Company and SSI moved for summary judgment seeking to dismiss all of plaintiffs’ claims. The district court signed a judgment on May 23, 2001, granting Empire‘s motion for summary judgment on the issue of vicarious liability. The court denied summary judgment on the negligence claim against SSI. Empire filed another motion for summary judgment in which it moved to dismiss plaintiffs’ negligence claim against SSI, on the grounds that Louisiana‘s Recreational Use Immunity Statutes (RUS) afforded immunity to SSI. The district court granted the motion, holding the RUS barred plaintiffs’ claim of negligence by SSI.4
Plaintiffs appealed the grant of summary judgments to the court of appeal. A majority of the appellate panel affirmed. Richard v. Hall, 02-0366 (La.App. 1 Cir. 2/14/03), 843 So.2d 433. The majority, relying upon our decision in Ermert v. Hartford Ins. Co., 559 So.2d 467 (La.1990) (reh‘g denied), held the trial judge did not err in granting summary judgment on the basis of the lack of vicarious liability on the part of SSI. The majority additionally found SSI was a lessee that qualified for the immunity afforded by the RUS, even though it was undisputed that Loch Leven was a recreational enterprise for profit. In dissent, Judge Pettigrew found duck hunting was a business activity of SSI thus precluding the application of the RUS. Judge Pettigrew found at a minimum there were material issues of fact in dispute as to whether it was a business activity and therefore summary judgment was improper. Additionally, he was of the
DISCUSSION
Summary Judgment
We will first address the initial summary judgment dismissing plaintiffs’ claim against SSI on grounds of vicarious liability. Appellate courts review summary judgments de novo, using the same criteria that govern the trial court‘s consideration of whether summary judgment is appropriate. Goins v. Wal-Mart Stores, Inc., 01-1136, p. 5 (La.11/28/01), 800 So.2d 783, 788. Summary judgment shall be rendered if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.
Vicarious Liability
The premise of vicarious liability is codified in
In Ermert, we addressed the determination of the scope of executive employment in a negligence case. There the plaintiffs alleged vicarious liability on the part of the corporation for the negligent acts of its servant, who was founder, majority stockholder, president and chief executive officer of the closely held corporation. We noted that the word “servant” does not exclusively denote a person rendering manual labor; rather it includes anyone who performs continuous service for another and whose physical movements are subject to the control or right to control of the other as to the manner of performing the service. While the rules for determining liability of the employer for the conduct of both superior servants and the humblest employees are the same, the application of these rules may differ due to the dissimilarity of their duties and responsibilities. Ermert, 559 So.2d at 476, citing Restatement (2d) of Agency § 220 comment (a) (1958). The fact that the predominant motive of the servant is to benefit himself or a third person does not prevent the act from being within the scope of employment. Ermert, 559 So.2d at 477, citations omitted. If the purpose of serving the master‘s business actuates the servant to any appreciable extent, the master is subject to liability if the act is otherwise within the service. Id. The scope of risks attributable to an employer increases with the amount of authority and freedom of action granted to the servant in performing his assigned tasks. Id.
The facts in Ermert involved an accidental shooting at a hunting camp. Karl F. Ermert, III, Kenneth Decareaux and others were present at the camp to build duck blinds for the upcoming duck season. Decareaux had picked up his shotgun to shoot a nutria to cook it for dinner. Decareaux, while loading his shotgun as he was walking inside the camphouse, accidentally shot Ermert in the foot. Decareaux was president of and majority stockholder in Nu-Arrow Fence Company. The trial court weighed the evidence and concluded that because Nu-Arrow derived economic benefit from Decareaux‘s activities at the camp, Nu-Arrow was vicariously liable. The court of appeal reversed, holding that Decareaux was engaged in a recreational pursuit in building the duck blinds. Upon reviewing the record and considering the principles of master-servant liability, we found the trial court‘s conclusion that Decareaux was within the scope of his employment was not clearly wrong. Ermert, 559 So.2d at 478. He was acting within
While Decareaux used the camp partially for his own personal enjoyment and recreation, the record also indicates that he repeatedly and consistently used it for business purposes. Developing new business was a major part of Decareaux‘s employment with Nu-Arrow. Decareaux testified that he sold fences to almost every other member of the camp, and that the other members had all referred business to him. He had also taken a number of his preferred customers to the camp for entertainment, and these customers had likewise referred business to Nu-Arrow. Another important aspect of Decareaux‘s duties was dealing with employees. He testified that he had taken his employees to the camp on several occasions for picnics or entertainment, and he had also hosted his company-sponsored softball team at the camp. Considering this evidence, the finder of fact could reasonably conclude that one of Decareaux‘s motives for participating in the camp was to provide a place to entertain both customers and employees of Nu-Arrow. Ermert, 559 So.2d at 478.
Because Decareaux had repeatedly and consistently used the hunting camp for business purposes, Nu-Arrow had made the risks associated with waterfowling (which are not normally characteristic of the activities of fence companies) a part of its business. The predominant motive of the servant to benefit himself or a third person does not prevent the act from being within the scope of employment. Ermert, 559 So.2d at 477. If the purpose of serving the master‘s business actuates the servant to any appreciable extent, the master is subject to liability if the act is otherwise within the service. Id.
Our decision in Ermert reaffirmed and further explained the standards we previously enunciated in LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974), and adapted those standards to the atypical master-servant problem that was before us. Roberts v. Benoit, 605 So.2d 1032, 1041 (La.1991). Under the LeBrane test, the determinative question is whether the employee‘s tortious conduct “was so closely connected in time, place and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer‘s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer‘s interest.” Id. In a negligence distinguished from an intentional tort case, the court need only determine whether the servant‘s general activities at the time of the tort were within the scope of employment. Id.
Defendants contend the facts in this case differ vastly from the facts in Ermert. Defendants argued the duck lease at Loch Leven was never used to entertain customers or for any business related purposes. In support of their motions for summary judgment on the issue of vicarious liability, defendants submitted deposition testimony which showed SSI never brought clients or customers to Loch Leven; no one from SSI ever conducted any business at Loch Leven; the only authorized users of SSI‘s duck lease at Loch Leven were the three executives; the expense was paid to provide a perk to upper management; there were no penalties or any other ramifications with respect to Mr. Hall‘s employment based upon whether or not he used the duck lease; and the duck lease was used purely for their social purposes.
In the matter sub judice, the only factual support plaintiffs offered to support their allegation that Hall was within the course and scope of his employment at the time of the accident was the testimony of Hall and SSI‘s controller, that SSI intended the lease to be used for business purposes, and that it was treated as a business expense. Intent to utilize the recreational activity for business purposes and/or to entertain clients cannot transform the servant‘s activities to fall within the scope of employment. Where there is no evidence that any business related entertaining was ever done at the lease, that the servant had ever generated any business by his use of the lease, or that the servant was required to participate in the recreational activity, we cannot say his recreational activities were within the course and scope of his employment. Unlike the evidence in Ermert, SSI had not established the practice of using the recreational activity for the purpose of furthering its business interests.
In resolving this issue, our focus is on the servant and whether his activity at the time of the accident was within the scope of his employment. The servant must be motivated at least in part to serve the master‘s business. Despite our diligent research, we have been unable to find any jurisprudence from any jurisdiction in which an executive or servant was found to be in the scope of employment solely by the intent of the business to use the recreational activity for business purposes and/or to entertain clients, where the recreational activity had never been used for a business purpose, and was not being used for such purposes at the time of the incident giving rise to the litigation. A recreational activity cannot fairly be said to be characteristic of the business‘s activities merely upon the intent of the business to use the recreational activity for business purposes at an unspecified future time.
Recreational Use Immunity Statutes6
Plaintiffs also alleged SSI was negligent for failing to properly supervise and instruct employees in the proper and safe use of firearms while hunting pursuant to SSI‘s duck lease at Loch Leven, and therefore liable for the death of Mr. Richard. In a second motion for summary judgment, SSI and Empire asserted SSI was entitled to the immunity afforded by Louisiana‘s Recreational Use Immunity Statutes (RUS). Louisiana‘s RUS are codified at
Lessee Status
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 ... If such an owner, lessee or occupant give permission to another to enter the premises for such recreational purposes he does not ... assume responsibility for or incur liability for any injury to persons or property caused by any act of person to whom permission is granted.
La.Rev.Stat. 9:2791(A) (emphasis added).
As used in this section:
* * *
“Owner” means the possessor of a fee interest, a tenant, lessee, occupant or person in control of
* * *
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.
La.Rev.Stat. 9:2795(A)(2) ,(B)(1)(a) ,(b) (emphasis added).
Plaintiffs argue SSI fits into none of the protected classes entitled to immunity, specifically, that SSI‘s “duck lease” does not make SSI a lessee. Plaintiffs correctly note there are three elements absolutely necessary to the contract of lease, to wit: the thing, the price and the consent.
Defendants contend the right which SSI leased (the right to enter the premises for the purpose of duck hunting) constitutes a certain “thing” in satisfaction of
Defendants further stress that personal servitudes of right of use affecting immovable property must be in writing. Langevin v. Howard, 363 So.2d 1209, 1214 (La.Ct.App. 2 Cir.1978) writ denied 366 So.2d 560 (La.1979); Hailey v. Panno, 472 So.2d 97, 99 (La.Ct.App. 5 Cir.1985). The agreement between SSI and Loch Leven was not formalized in a written document, therefore it cannot be considered a right of use.
The trial court found “[t]he thing being leased is the property for use for duck hunting.” The majority of the appellate panel agreed SSI leased the use of the duck hunting premises for the term of the duck hunting season at the agreed upon price of $10,000. The appellate panel concluded that the hunters rotation to different hunting blinds does not vitiate SSI‘s status as a lease holder within the purview of the RUS. Judge Pettigrew dissented; he was of the opinion that the “duck lease” was a right of use.
In order to determine whether a “duck lease” is a lease or a personal servitude of right of use, we have reviewed our Civil Code, jurisprudence and scholarly works to assist us in resolving this question.
The right of ownership, which according to traditional civilian analysis includes the elements of usus, fructus and abusus, may lawfully be dismembered in a variety of ways either by the intention of the owner or by operation of law. Exposé des Motifs, Title III: Personal Servitudes, La. Civ.Code Ann. (West 1980). Book II, Title III, of the Louisiana Civil Code of 1870 deals specifically with three permissible dismemberments of the right of ownership: usufruct, use and habitation. Id. These dismemberments of ownership are real rights of enjoyment which by their nature confer direct and immediate, although
Title III of Book II of the Louisiana Civil Code of 1870 was revised, amended, and reenacted by Acts 1976, No. 103, § 1, effective January 1, 1977. The 1976 revision suppressed the personal servitude of “use” as a nominate real right and established the different category of “rights of use.” 3 A.N. Yiannopoulos, Louisiana Civil Law Treatise—Personal Servitudes, § 222 (4th ed.2000).
Rights of use are real rights which confer limited advantages of use or enjoyment over an immovable. According to traditional civilian notions, a contract of lease establishes personal rights only. 2 A.N. Yiannopoulos, Louisiana Civil Law Treatise—Property, § 226 (4th ed.2001). Article 1709 of the Code Civil defines lease as “a contract whereby one of the parties undertakes the obligation to furnish to the other the enjoyment of a thing for a certain period of time, in consideration of a certain price which the latter promises to pay him.” Id. The definition has been taken almost verbatim from Pothier, who did not entertain any doubts as to the personal nature of the contract of lease. Id. It has been stated that the contract of lease produces all the effects of personal rights and none of the effects of real rights. Id. Under the civil law concept, a lease does not convey any real right or title to the property leased, but only a personal right. Comment, The Louisiana Law of Lease, 39 Tul.L.Rev. 798 (1964). Louisiana courts have for a long time classified leases as contracts establishing personal rights and obligations. Yiannopoulos, Property, § 226.
The personal servitude of right of use is a real right, whereas lease is a personal right. The classification of rights as personal or real is grounded on the nature of a right. Yiannopoulos, Property, § 146. Both personal and real rights may be either movable or immovable, depending on their object. Id. When the object of a personal right is a corporeal immovable, the personal right is an incorporeal immovable. Id.
The duck lease at issue before us cannot be classified as a right of use. Personal servitudes affecting immovable property which are created by agreement between the parties must be in writing. Langevin, 363 So.2d at 1214, see also Yiannopoulos, Personal Servitudes, § 238. It is undisputed that the duck lease at issue was an oral agreement and was not in writing.
More importantly, the duck lease did not convey any real rights to SSI. The duck lease was not a charge on the property in favor of SSI. It more closely resembles a
We note with approval that the First Circuit Court of Appeal has held an oral agreement whereby an owner for fixed consideration gave another the right to trap on his land is a contract of lease; the object of the lease was the right to trap. Defelice v. Autin, 159 So. 648, 649-50 (La.Ct.App. 1 Cir.1935). The appellate court likened the right to trap to the right of toll, which is mentioned as an illustration in
We find the right to hunt is analogous to the right to trap. See Defelice. In the present case, the granting of hunting rights on Loch Leven to SSI, for a fixed consideration, is a lease of an incorporeal thing. The thing leased is the incorporeal right to hunt on the land of another. Therefore, SSI‘s status is that of a lessee within the purview of the RUS.
Commercial Enterprise
We now turn to plaintiffs’ final averment, that SSI is not afforded the immunity of the RUS because the owner/lessor of Loch Leven was operating the premises as a commercial recreational enterprise for profit. Plaintiffs contend
In addition,
La.Rev.Stat. 9:2795(B) states:(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 purpose.
(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.
Defendants respond that the proper focus is upon SSI‘s use of the property. Because SSI did not utilize the premises for a commercial profit, it is not precluded from the immunity afforded under the RUS.
This dispute concerns a matter of law. Do the statutes immunize lessees of land that is used principally for a commercial recreational enterprise for profit by the owners, where the lessees do not utilize the premises for commercial purposes but for recreation?11
The appellate court stated the pivotal issue was whether SSI should be precluded from ascription to the protective veil of the RUS because the owner/lessor of Loch Leven was operating the premises for a commercial, recreational enterprise. It noted the facts in this case present a unique relationship in that SSI, and not the owner/lessor of Loch Leven, was the party that “[give] permission to another to enter the premises for ... recreational purposes....”
Our review of the RUS finds the appellate majority reached the correct result but its reasoning is flawed. Louisiana‘s RUS consists of two statutes. In separate years, the Legislature passed two remarkably similar statutes designed to encourage landowners to open their lands, on a basically nonprofit basis for recreational use. Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law, § 11.5
The starting point for the interpretation of any statute is the language of the statute itself. SWAT 24 Shreveport Bossier, Inc. v. Bond, XXXX-XXXX, p. 12 (La.6/29/01), 808 So.2d 294, 302; Cat‘s Meow, Inc. v. City of New Orleans, 98-0601, p. 15 (La.10/20/98), 720 So.2d 1186, 1198. When a statute is clear and unambiguous and its application does not lead to absurd consequences, the statute is applied as written, and no further interpretation may be made in search of legislative intent. See
The court of appeal‘s conclusion that SSI qualified for immunity because its use of the premises was not principally for commercial profit is not supported by the language of
However, review of
Contrary to
Because
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 historical background of recreational use statutes begins in 1953, when conservation groups and persons interested in recreational activities on rural lands convinced the Michigan Legislature to adopt a recreational use statute. Terrence Centner, Tort Liability for Sports and Recreational
The statement of purpose of
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.
In enacting § 2795, the Legislature adopted, essentially without change, the model act presented by the Council of State Governments through its annual publication, Suggested State Legislation. Monteville, 567 So.2d at 1101; Kenneth M. Murchison, Local Government Law, 47 La. L.Rev. 305, 324 (1986-7) (The origin is apparent because of the close correlation between the wording of the statute and the suggested legislation, particularly the use of common law terms to define “owner.“). The purpose of the model act was explained in its accompanying commentary:
Recent years have seen a growing awareness of the need for additional recreational areas to serve the general public. The acquisition and operation of outdoor recreational facilities by governmental units is on the increase. However, large acreages of private land could add to the outdoor recreation resources available. Where the owners of private land suitable for recreational use make it available on a business basis, there may be little reason to treat such owners and the facilities they provide in any way different from that customary for operators of private enterprises. However, in those instances where private owners are willing to make their land available to members of the general public without charge, it is possible to argue that every reasonable encouragement should be given to them.
Suggested State Legislation, at 150.
There is nothing to indicate that the Legislature had a different purpose in adopting § 2791. Monteville, 567 So.2d at 1102.
Acts 1975, No. 615, § 7 provides “[a]ll laws or14 [sic] parts of laws in conflict herewith are hereby repealed.” Therefore the conflict between the language contained in § 2791 and the provisions of § 2795 must necessarily be resolved by finding that the provisions of § 2795 control in deciding whether SSI is entitled to claim the immunity afforded by Louisiana‘s RUS in the situation before us. The language in § 2791, which provides that the RUS shall not apply “when the premises are used principally for a commercial, recreational enterprise for profit” conflicts with the language in § 2795, which provides the immunity is afforded to the owner, “except an owner of commercial recreational developments or facilities[.]” Because Acts 1975, No. 615, § 7 specifically provides all parts of laws in conflict with La. Rev. 9:2795 are repealed, the controlling provision in determining who is afforded immunity when the premises are a commercial recreational enterprise is the language of § 2795.
The Legislature is presumed to have enacted a statute in light of the
The enactment of
In conclusion, we find in order for a plaintiff to meet its burden of proof that an employee was in the course and scope of his employment for purposes of vicarious liability, plaintiff may not rely upon evidence that the employer intended the recreational activity to be used for business purposes at some future date. Nor is it sufficient evidence that the business treated the expense as a business expense. The focus is on the servant and whether he was motivated, at least in part, to serve the master‘s business. Plaintiffs here produced no evidence to show that Mr. Hall‘s tortious conduct was so closely connected in time, place and causation to his employment duties as to be regarded as a risk of harm fairly attributable to SSI‘s business. The uncontradicted evidence showed the duck lease had never been used to entertain clients, or that any business related activities ever took place at the duck lease. Plaintiffs have failed to produce factual support sufficient to establish they can satisfy their evidentiary burden of proof at trial.
We further find pursuant to
Finally, we hold that pursuant to Louisiana‘s Recreational Use Immunity Statutes, it is the “owner‘s” use of the premises and not the underlying classification of the premises as a commercial recreational enterprise for profit that determines the availability of the immunity provisions to a qualified owner. A lessee is included within the statutory definition of owner for purposes of the RUS. When, as here, the owner/lessor operates the premises as a commercial recreational enterprise, but the lessee does not utilize the premises for a commercial profit from recreational activities, the lessee is entitled to the immunities afforded by the RUS. In its enactment of
DECREE
For the foregoing reasons, the judgments of the district court and the appellate court are affirmed.
AFFIRMED.
VICTORY J., concurs in the result.
KNOLL, Justice
Notes
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.
C. The word “premises” as used in this Section includes lands, roads, waters, water courses, private ways and buildings, structures, 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.
§ 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 land, roads, water, watercourses, 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 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 vehicle operation for recreation purposes, nature study, water skiing, ice skating, sledding, snow mobiling, snow skiing, summer and winter sports, and 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.
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 owned, leased, or managed as a public park by the state or any of its political subdivisions and which is used for recreational purposes.
(b) For purposes of the limitation of liability afforded to parks pursuant hereto, “land” does not include buildings, structures, machinery, or equipment regardless of whether attached to the realty.
(c) For purposes of the limitation of liability afforded to parks pursuant to this Section, this limitation does not apply to playground equipment which is 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 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 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.
In subpar. (E)(2)(c), “or stands” was inserted following “playground equipment” and “are” was substituted for “is” preceding “defective.”
These substantive changes of