recreational use immunity in Louisiana

2001In' her written reasons for judgment, the trial court found that the scene of the alleged accident was in an “undeveloped, nonresidential area” in the middle of an uninhabited marshlands/wetlands area, in accordance with the prerequisites of those statutes. 13Coincidentally, Verdin v. Louisiana Land and Exploration, 96-1815 (La.App. 4 Cir. 3/12/97) , 693 So.2d 162 , writ den. 97-1581 (La.9/26/97), 701 So.2d 994 , also involved a similar boating accident in the Point au Chien area on LL & E wetlands/marshlands property similar to and not far from the site of the alleged accident in the instant

1998As the plaintiffs point out in their brief, the purpose for which the recreational use immunity statutes were adopted was "to induce private owners of large acreage to open expanses of undeveloped lands for public outdoor, open land recreational purposes." *231 Id. at 1098 ; see also Verdin v. Louisiana Land and Exploration Co., 96-1815 (La.App. 4 Cir. 3/12/97) ; 693 So.2d 162, 165 .

2021App. 4 Cir. 11/16/16), 204 So.3d 661, 666-67 . 4 DISCUSSION Assignments of Error On appellate review, Mrs. Beal asserts three (3) assignments of error: (1) the trial court erred when it granted FQF and Audubon Institute’s motion for summary judgment, finding that FQF and Audubon Institute are entitled to immunity under the recreational use immunity statutes; (2) the trial court erred when it did not find that FQF and Audubon Institute’s actions fell under the exception for willful and malicious failure to warn against a dangerous condition, use, structure, or activity; and (3) the trial court

2001For example, in Buras, 598 So.2d at 400 , this court found that: In the present case, plaintiff was injured in an area near Venice, Louisiana known as Tante Phine Pass.

2001In' her written reasons for judgment, the trial court found that the scene of the alleged accident was in an “undeveloped, nonresidential area” in the middle of an uninhabited marshlands/wetlands area, in accordance with the prerequisites of those statutes. 13Coincidentally, Verdin v. Louisiana Land and Exploration, 96-1815 (La.App. 4 Cir. 3/12/97) , 693 So.2d 162 , writ den. 97-1581 (La.9/26/97), 701 So.2d 994 , also involved a similar boating accident in the Point au Chien area on LL & E wetlands/marshlands property similar to and not far from the site of the alleged accident in the instant

1997Judge Byrnes incorrectly implies that we relied on LaCroix for the proposition that the recreational use statutes apply "even where the landowner posted the property and intended to keep the public out." In actuality, we cited LaCroix, along with several other cases, including Holder v. Louisiana Parks Service, 552 So.2d 20 (La.App. 3d Cir.1989), writ denied, 556 So.2d 59 (La.1990) and Lewis v. State Farm Fire & Casualty Co., 94-2639 (La.App. 4th Cir. 4/26/95), 654 So.2d 883 , to establish that no requirement that the party injured on the property have permission to use the property for recrea

1997See Singletary v. Crown Zellerbach, 554 So.2d 846 (La.App. 1st Cir.1989)(injury occurred when three-wheeler struck gate on property); Lewis, 654 So.2d 883 (injury occurred on a fishing pier); Broussard, 539 So.2d 824 (injury occurred on concrete boat launch ramp adjacent to canal); Adams v. State, 525 So.2d 55 (La.App. 3d Cir.1988) (injury occurred in dive from homemade diving platform attached to tree); Ratcliff, 502 So.2d 566 (injury occurred on boat dock); LaCroix v. State, 477 So.2d 1246 (La.

1997In LaCroix, 477 So.2d 1246 , the injured party was a 14-yearold who was injured when she dove into a creek from a tunnel bridge constructed by the defendant.

1997Dedication requirement Concerning the dedication requirement, several of the cases refer in dicta to application of the recreational use immunity doctrine to land "properly dedicated to one or more of the specified recreational purposes." Monteville, 567 So.2d at 1101 ; Dear v. Crosby Chemicals, 95-1309 (La.App. 3d Cir. 3/6/96), 670 So.2d 775, 776 , writ denied, 96-1267 (La.6/21/96), 675 So.2d 1091 ; Ward, 671 So.2d at 1232 .

1997Character of injury-causing instrumentality In addition to the above two factors which are used consistently by courts for determining whether the recreational use immunity statutes should apply to a given situation, many of the more recent cases applying those statutes cite a third factor to be considered in determining whether the recreational immunity statutes should apply—i.e., "the jury-causing *167 instrumentality must be of the type normally encountered in the "true outdoors" and not of the type usually found in someone's backyard." [2] Ward v. Hermitage Insurance Co., 28,236 (La.App.2d

1997See Singletary v. Crown Zellerbach, 554 So.2d 846 (La.App. 1st Cir.1989)(injury occurred when three-wheeler struck gate on property); Lewis, 654 So.2d 883 (injury occurred on a fishing pier); Broussard, 539 So.2d 824 (injury occurred on concrete boat launch ramp adjacent to canal); Adams v. State, 525 So.2d 55 (La.App. 3d Cir.1988) (injury occurred in dive from homemade diving platform attached to tree); Ratcliff, 502 So.2d 566 (injury occurred on boat dock); LaCroix v. State, 477 So.2d 1246 (La.

1997For example, the Louisiana Supreme Court, in Ratcliff v. Town of Mandeville, 502 So.2d 566 (La.1987), stated as follows: This court has described two factors to consider when determining whether the immunity provided by R.S. 9:2791 and 9:2795 is applicable to a given set of facts.

1997See Singletary v. Crown Zellerbach, 554 So.2d 846 (La.App. 1st Cir.1989)(injury occurred when three-wheeler struck gate on property); Lewis, 654 So.2d 883 (injury occurred on a fishing pier); Broussard, 539 So.2d 824 (injury occurred on concrete boat launch ramp adjacent to canal); Adams v. State, 525 So.2d 55 (La.App. 3d Cir.1988) (injury occurred in dive from homemade diving platform attached to tree); Ratcliff, 502 So.2d 566 (injury occurred on boat dock); LaCroix v. State, 477 So.2d 1246 (La.

1997Another case involving application of the recreational use immunity statutes to an injury party who was present on the defendant's property without permission is Lewis, 654 So.2d 883 .

1997Judge Byrnes incorrectly implies that we relied on LaCroix for the proposition that the recreational use statutes apply "even where the landowner posted the property and intended to keep the public out." In actuality, we cited LaCroix, along with several other cases, including Holder v. Louisiana Parks Service, 552 So.2d 20 (La.App. 3d Cir.1989), writ denied, 556 So.2d 59 (La.1990) and Lewis v. State Farm Fire & Casualty Co., 94-2639 (La.App. 4th Cir. 4/26/95), 654 So.2d 883 , to establish that no requirement that the party injured on the property have permission to use the property for recrea

1997Judge Byrnes incorrectly implies that we relied on LaCroix for the proposition that the recreational use statutes apply "even where the landowner posted the property and intended to keep the public out." In actuality, we cited LaCroix, along with several other cases, including Holder v. Louisiana Parks Service, 552 So.2d 20 (La.App. 3d Cir.1989), writ denied, 556 So.2d 59 (La.1990) and Lewis v. State Farm Fire & Casualty Co., 94-2639 (La.App. 4th Cir. 4/26/95), 654 So.2d 883 , to establish that no requirement that the party injured on the property have permission to use the property for recrea

1997In our view, the only reason the legislature failed to specifically address a landowners duty to people without permission to enter the property is that the statute is obviously designed to apply in that case. [6] Despite the language in Keelen, 463 So.2d 1287 , and Monteville, 567 So.2d 1097 , cited by the Verdins, that the recreational use immunity statutes are in derogation of a common right and therefore must be strictly construed, we agree with the Third Circuit Court of Appeal's statements in Holder, 552 So.2d 20 , that the legislature intended the immunity statutes to have broad applica

1997Dedication requirement Concerning the dedication requirement, several of the cases refer in dicta to application of the recreational use immunity doctrine to land "properly dedicated to one or more of the specified recreational purposes." Monteville, 567 So.2d at 1101 ; Dear v. Crosby Chemicals, 95-1309 (La.App. 3d Cir. 3/6/96), 670 So.2d 775, 776 , writ denied, 96-1267 (La.6/21/96), 675 So.2d 1091 ; Ward, 671 So.2d at 1232 .

1997Character of injury-causing instrumentality In addition to the above two factors which are used consistently by courts for determining whether the recreational use immunity statutes should apply to a given situation, many of the more recent cases applying those statutes cite a third factor to be considered in determining whether the recreational immunity statutes should apply—i.e., "the jury-causing *167 instrumentality must be of the type normally encountered in the "true outdoors" and not of the type usually found in someone's backyard." [2] Ward v. Hermitage Insurance Co., 28,236 (La.App.2d

1997Dedication requirement Concerning the dedication requirement, several of the cases refer in dicta to application of the recreational use immunity doctrine to land "properly dedicated to one or more of the specified recreational purposes." Monteville, 567 So.2d at 1101 ; Dear v. Crosby Chemicals, 95-1309 (La.App. 3d Cir. 3/6/96), 670 So.2d 775, 776 , writ denied, 96-1267 (La.6/21/96), 675 So.2d 1091 ; Ward, 671 So.2d at 1232 .

1997Although Mr. Voisin did say that the exact location where the alleged accident occurred was subject only to a trapping lease in December 1991, that does not change the fact that LL & E had "dedicated" its property to recreational purposes, as that factor has been interpreted in the relevant caselaw. [4] In brief, the Verdins also cite this court's decision in Smith v. Southern Pacific Transportation Co., 467 So.2d 70 (La.App. 4th Cir. 1985) in support of their argument that the recreational use immunity statutes should not apply under the facts of this case.