The opinion
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2021CA0240
AMY LEBLANC GOODSON AND WILLIAM R. GOODSON, JR.
VERSUS
CITY OF ZACHARY
Judgment rendered DEC 1 0 208
*****
On Appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
No. C667741
The Honorable Donald R. Johnson, Judge Presiding
*****
Keith P. Richards Attorneys for Plaintiffs/ Appellants
Steve J. Moore Amy L. Goodson & William R.
Baton Rouge, Louisiana Goodson, Jr.
Darrell J. Loup Attorney for Defendant/ Appellee
Baton Rouge, Louisiana City of Zachary
*****
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
HOLDRIDGE, J.
Plaintiffs, Amy Goodson and William Goodson, Jr., appeal a summary
judgment rendered in favor of defendant, the City of Zachary, dismissing this
personal injury action. We reverse and remand.
BACKGROUND
On April 5, 2018, plaintiffs filed this lawsuit against the City of Zachary
(City), the owner of a recreational facility known as the Zachary Youth Park
Complex (Youth Park), a public recreational facility consisting of, among other
things, I 0 baseball/softball fields. The City owns and maintains the Youth Park.
In the petition, plaintiffs made the following allegations: on April 2, 2017, the
Goodsons' son was playing in a championship game at the Youth Park, which
began at approximately 7:45 p.m. Light rain began to fall, and spectators were
uncertain whether the games would be cancelled. Mrs. Goodson left the spectator
bleachers for the field where her son's team was playing and went to the bleachers
for an adjacent field to speak with friends. Thereafter, Mrs. Goodson walked back
to the stands where she had been sitting. Because the rain continued to fall, she
walked close to the stands where there was a metal canopy covering the bleachers,
which kept her dry. When she arrived at the rear of the bleachers, Mrs. Goodson
tripped over a guy-wire, causing her to fall to the ground.
Regarding the bleachers and canopy structure where Mrs. Goodson fell,
plaintiffs alleged the following: The metal canopy rested on four metal support
poles which had been erected above the set of bleachers with two of the poles
situated near the front, or bottom of the stands, and two of the poles located in the
vicinity of the rear, or top of the stands. On the rear side of the canopy, guy-wires
were anchored near the two outside edges of the roof-like structure, which were
then crossed in a diagonal pattern before being anchored to the two rear canopy
support poles at a location approximately six inches above the ground. The
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distance between the two rear support canopy poles was several feet greater than
the width of the seat of the bleachers, resulting in an approximately three-foot wide
space between the set of bleachers and the rear canopy support poles on the side of
the stands where Mrs. Goodson was walking when the accident occurred.
Plaintiffs alleged the guy-wire over which Mrs. Goodson tripped ts a
tensioned cable designed to provide additional stability to a free-standing structure
and was a constituent of the support system of the metal canopy situated over the
set of bleachers. They claimed that the three-foot space between the bleachers and
rear canopy support system should have been closed to pedestrian traffic because
of the unreasonable risk of harm presented by the guy-wire traversing the space at
a height of approximately six to eight inches off the ground. They averred that the
City was negligent in numerous respects, including: (I) failing to design or
construct a bleacher canopy structure free of vice and defect; (2) failing to hire
qualified personnel to design and construct the bleacher canopy structure in
accordance with established building standards; (3) failing to install sufficient
artificial lighting to ensure adequate illumination of the premises at night; (4)
failing to exercise reasonable care in the inspection of its property to identify
foreseeable hazards; ( 5) failing to restrict access by guests to the areas with a
known defect; (6) failing to warn guests of the existence of the known vice or
defect; and (7) allowing the defect to remain on the property despite having actual
notice of its existence prior to Mrs. Goodson's accident. Plaintiffs also asserted
causes of action for custodial liability against the City pursuant to La. Civ. Code
article 2317 and 2317.1 and La. R.S. 9:2800.
The City filed a motion for summary judgment, urging that La. R.S. 9:2795,
Louisiana's Recreational Use Immunity Statute, which affords tort immunity for
parks owned by public entities, applied so as to immunize it from liability for
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plaintiffs' tort claims. In support of the motion, the City submitted the affidavit of
its attorney, photographs of the guy-wire, canopy, and bleachers, and excerpts of
the depositions of Mrs. Goodson and Robert Morris. The City also filed a
supplemental memoranda in support of its motion for summary judgment,
attaching an excerpt of a deposition of its representative and attachments thereto
regarding financial aspects of the Youth Park.
In its attached memorandum, the City of Zachary argued that it is a public
entity which owned and maintained the property where Mrs. Goodson fell for
recreational purposes, mainly baseball and softball, triggering the application of
the recreational use immunity statute. It argued that none of the exceptions to the
statutory immunity afforded to the City by La. R.S. 9:2795 applied in this case.
Specifically, the City identified three statutory exceptions to recreational use
immunity: (1) actions for injury arising from the willful or malicious failure to
warn against a dangerous condition, La. R.S. 9:27958(1); (2) actions against
owners of commercial recreational developments or facilities, La. R.S. 9:2795B( I),
and (3) La. R.S. 9:2795E(2)(c), which provides that the limitation of liability
afforded to "parks" pursuant to the statute does not apply to playground equipment
or "stands" which are defective. According to the City, because Mrs. Goodson's
injuries arose from her tripping over a guy-wire that was suspended diagonally
across the canopy support structure, and because the canopy structure was in no
way attached to or connected to the spectator stands, it did not form a part of the
spectator stands, and therefore, La. R.S. 9:2795E(2)(c)'s exception to immunity
otherwise afforded to a park for defective stands did not apply.
Plaintiffs amended their petition to add Jelks Construction, LLC (Jelks) as a
defendant, alleging that in August of 2013, the City requested and received a
proposal from Jelks for the construction by Jelks of eight bleacher canopies at the
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Youth Park. Jelks completed the construction project on or about June 3, 2015.
Plaintiffs alleged that Jelks was negligent in its design in the construction of the
bleacher canopy where the accident occurred. They alleged that the defect in the
constructed canopy at the accident site was the tensioned guy-wire anchored to the
rear canopy support pole approximately six inches above the ground. According
to plaintiffs, the presence of the guy-wire created a significant tripping hazard,
which should have been removed from the canopy structure by Jelks prior to the
completion of the canopy construction project. Plaintiffs alleged that the City
failed to ameliorate the risk presented by the trip hazard to spectators by closing
the area between the end of the bleachers and the rear support pole to pedestrian
traffic.
In opposition to the motion for summary judgment, plaintiffs argued that La.
R.S. 9:2795 does not provide the City with immunity for three reasons: (1) Mrs.
Goodson was not on the park premises to participate in recreational activity listed
in the immunity provision; (2) La. R.S. 9:2795E(2)(c) exempts "stands" which are
defective from immunity otherwise provided by the statute, and Mrs. Goodson's
injury was caused by a defectively constructed bleacher canopy, which plaintiffs
asserted constitutes a part of the stands; and (3) the Youth Park is a "commercial
recreational facility" to which recreational immunity provided for in La. R.S.
9:2795 does not extend. In support of their opposition to the motion, plaintiffs
submitted the deposition testimony of Mrs. Goodson and the City, as well as the
City's discovery responses.
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Following a hearing, the trial court granted the City's motion for summary
judgment and dismissed all of plaintiffs' causes of action against the City with
prejudice. 1 This appeal, taken by the Goodsons, followed.
DISCUSSION
Summary Judgment
After an opportunity for adequate discovery, summary judgment shall be
granted if the motion, memorandum, and supporting documents show that there is
no genuine issue of material fact and that the mover is entitled to judgment as a
matter of law. La. C.C.P. art. 966A(3). Appellate courts review summary
judgments de nova, usmg the same criteria that govern the trial court's
consideration of whether summary judgment is appropriate. A genuine issue is one
as to which reasonable persons could disagree; if reasonable persons could reach
only one conclusion, summary judgment is appropriate. Collins v. Franciscan
Missionaries of Our Lady Health System, Inc., 2019-0577 (La. App. 151 Cir.
2/21120), 298 So.3d 191, 194-95, writ denied, 2020-00480 (La. 6/22/20), 297
So.3d 773. A fact is "material" when its existence or non-existence may be
essential to plaintiffs cause of action under the applicable theory of recovery. A
material fact is one that would matter at a trial on the merits. Any doubt as to a
dispute regarding a material issue of fact must be resolved against granting the
motion and in favor of trial on the merits. Collins, 298 So.3d at 195.
The Code of Civil Procedure places the burden of proof on the party filing
the motion for summary judgment. La. C.C.P. art. 966D(l). The mover can meet
this burden by filing supporting documentary evidence, and the mover's supporting
1
We note that the judgment contains a finality certification for the purposes of an immediate
appeal pursuant to La. C.C.P. art. 1915. Because the judgment dismissed all of the Goodsons
claims against the City with prejudice, the judgment is immediately appealable under La. C.C.P.
art. 191 SA(l) without the necessity of a finality determination.
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documents must prove the essential facts to carry the mover's burden. Thus, in
deciding a motion for summary judgment, it must first be determined whether the
supporting documents presented by the mover are sufficient to resolve all material
factual issues. Jenkins v. Hernandez, 2019-0874 (La. App. 15t Cir. 6/3/20), 305
So.3d 365, 370-71, writ denied, 2020-00835 (La. 10/20/20), 303 So.3d 315.
Once the mover demonstrates the absence of factual support for one or more
elements essential to the adverse party's claim, the burden shifts to the non-moving
party to produce factual support, through the use of proper documentary evidence
attached to its opposition, which establishes the existence of a genuine issue of
material fact or that the mover is not entitled to judgment as a matter of law.
Jenkins, 305 So.3d at 371. If the non-moving party fails to prove the existence of
a genuine issue of material fact, La. C.C.P. art. 966D(l) mandates the granting of
the motion for summary judgment. Id.
Recreational Use Immunity
Owners and operators of property that is used for recreational purposes are
entitled to immunity from tort liability pursuant to La. R.S. 9:2791 and 9:2795.
Tillman v. Nationwide Mutual Ins. Co., 2020-0250 (La. App. pt Cir. 2/22/21),
321 So.3d 1017, 1023, writ denied, 2021-00429 (La. 5/25/21 ), 316 So.3d 446.
Louisiana Revised Statute 9:2795 provides immunity to the owner of land
being used for recreational purposes against liability for injury to persons caused
by a defect in the land, whether naturally occurring or manmade. La. R.S.
9:2795B(l)(c); Marse v. Red Frog Events, L.L.C., 2019-1525 (La. App. pt Cir.
9/18/2020), 313 So.3d 1001, 1007, writ denied, 2020-01215 (La. 12/22/20), 307
So.3d 1044. La. R.S. 9:2795's immunity expressly applies to parks owned by
public entities. The Youth Park is a recreational facility owned by a public entity.
It is further undisputed that at the time Mrs. Goodson encountered the guy-wire, a
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baseball tournament was underway at Youth Park. The term "recreational
purposes" is defined in La. R.S. 9:2795A(3) to specifically include summer sports.
However, there are three statutory exceptions to the immunity afforded a
public entity such as the City for injuries occurring at recreational facilities they
own. The first two are found in Paragraph B of La. R.S. 9:2795. That provision
contains an exception for "willful or malicious failure to warn against a dangerous
condition" and further expressly provides that recreational use immunity does not
extend to the "owner of commercial recreational developments." La. R.S.
9:2795B(l). A third exception is found in Paragraph E of La. R.S. 9:2795. That
provision states: "[f]or 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." La. R.S. 9:2795E(2)(c).
In this case, we must determine whether the City met its burden on the
motion for summary judgment of demonstrating that La. R.S. 9:2795 immunizes it
from tort liability to a spectator who tripped over a guy-wire on a canopy support
system suspended over a set of bleachers at the City's Youth Park. If there is a
genuine issue of material fact regarding the applicability of any of the exceptions
to tort immunity contained in La. R.S. 9:2795, the City is not entitled to summary
judgment declaring it immune from tort liability pursuant to La. R.S. 9:2795.
Summary Judgment Evidence
In support of its motion, the City submitted the affidavit of John Hopewell,
who has been the City's attorney from January 10, 2011, through the present. Mr.
Hopewell attested that as the City Attorney, he has access to all records kept by the
City in the course of business relating to the Youth Park. Mr. Hopewell examined
those records, and he made the following attestations: Construction of the Zachary
Youth Park was originally completed in 2013; additions and improvements to the
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park resulted it in being completed, by 2016, to the level that the Youth Park
existed on the date of the accident sued upon (April 2, 2017). At all times since the
original completion, the Youth Park has been owned and maintained by the City.
The Youth Park is a public recreational facility consisting of 10 baseball and/or
softball fields. The bleachers/stands at the Youth Park and shown in various
photographs attached to the affidavit were designed, planned, and constructed by
Jelks and were put into use in or around August of 2013. The canopy, including
the guy-wire attached thereto and shown in photographs attached to the affidavit,
was constructed by Jelks in August 2013. The canopy and guy-wire are not
connected or attached to the bleachers/stands in any way; instead, the canopy and
guy-wire are a totally separate structure from the bleachers/stands. Mr. Hopewell
estimated that since the construction of the canopy in 2013, and up until the day of
Mrs. Goodson's accident, over 100,000 persons have walked in and through the
park area, and there have been no reported accidents involving the canopy or guy-
wire other than the accident at issue in this lawsuit.
Mr. Hopewell also attested that the Youth Park is open to the public and is
often used by the community for sandlot ball games, without charge. While
organized, independent baseball and softball leagues pay to use the park, the Youth
Park is not a legal entity nor is it a business association listed with any
governmental regulatory body. The City is not required to complete income tax
returns and does not pay taxes. According to Mr. Hopewell, while the Youth Park
does generate income, its primary purpose is not to derive a profit from its use, but
instead to afford the community youth and the community as a whole with the
opportunity to participate in wholesome, healthy outdoor recreation.
Photographs offered in connection with the affidavit and later identified as
having been taken by Mrs. Goodson or her husband after the accident sued upon,
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depict the guy-wire attached to a pole at the rear of the stands. In one of the
photographs, a person, later identified as Mrs. Goodson, is standing behind the
guy-wire. This photograph shows the guy-wire attached on one end to a pole
behind the stands; the guy-wire is suspended over the pavement at a height above
Mrs. Goodson's ankles, at the level of her shins.
In further support of its motion, the City submitted excerpts of Mrs.
Goodson's deposition. Mrs. Goodson acknowledged that the guy-wires and the
canopy are connected, but they were not connected to the bleachers. Mrs.
Goodson recalled that the bleachers were at the park prior to the addition of the
canopy structure. She acknowledged that she and her husband went to the Youth
Park and took a series of photographs one week after the accident. She testified
that she went to the Youth Park about a month after her accident and took a
photograph of the area where she tripped. At that time, the guy-wire was no longer
in the same position, but had been "relocated up." Mrs. Goodson stated that the
canopy and support poles remained in the same location as they were at the time of
her accident.
Additional support for the City's motion included excerpts of the deposition
testimony of Robert Morris and the deposition of the City's representatives. In his
deposition, Mr. Morris indicated that the cable depicted in the photographs taken
by the Goodsons was bracing the awning, but acknowledged that the canopy was
not connected to the bleachers. In the City's deposition, its representative testified
that for the fiscal year 2016, the park department had an operating loss of
$289,000.00, and in the following year, had an operating loss of$208,000.00. The
City argued that this evidence demonstrated that the Youth Park was not profitable,
establishing that the purpose of the Youth Park is to provide recreational
opportunities for the public at large and not to make a profit.
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In opposition to the motion for summary judgment, the Goodsons urged that
there was an issue of material fact precluding the granting of the motion, namely,
whether the Youth Park was a commercial recreational facility in the fiscal years
prior to and in the year when Mrs. Goodson was injured at that facility. They
argued that they had evidence directly contradicting the City's claim that the Youth
Park's primary purpose is not to derive a profit from its youth. The Goodsons
maintained that they had substantial evidence from the City supporting the
conclusion that the Youth Park is a "commercial recreational facility" not entitled
to the immunity protections of La. R.S. 9:2795. In support of this claim, the
Goodsons relied on social media posts from the City and the Youth Park indicating
that youth baseball tournaments held at the facility by a single sponsor have been
proven to be profitable, raising tax revenues of $80,000.00 to $150,000.00 each
month the tournaments are held. They also pointed to the deposition testimony of
the City's Parks and Recreation director in which he refused to repudiate the
accuracy of a statement he made to a local newspaper reporter in 2018 indicating
that over $80,000.00 in additional revenue was generated for the city per month
during two weekend tournaments held per month at the Youth Park.
In further opposition to the motion for summary judgment, the Goodsons
argued that the City was not entitled to immunity because Mrs. Goodson was not
on the park premises to participate in recreational activity. Additionally, they
urged that the "stands" exception to tort liability afforded to parks by La. R.S.
9:2795 applied in this case. According to the Goodsons, the bleacher canopy
should be considered part of the facility's bleachers and thus a part of the stands
for the purpose of the exception. They urged that the fact that the bleacher canopy
was constructed in such a way that it did not contact the stands it covers should not
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be legally decisive in determining the applicability of the exception for defective
stands in this case.
In her deposition, Mrs. Goodson testified that prior to her injury, she had
been to the Youth Park three to four times in 2015 and 2016, and recalled that the
bleachers were present, but that the canopy and guy-wire structure was built
afterwards. She stated that the tournament she attended at the time of her 201 7
accident was the first time she saw the canopy and guy-wire structure. She
acknowledged that the guy-wire and canopy are connected; however, neither was
connected to the bleachers. On the evening in question, Mrs. Goodson's son's
baseball team began playing a game around 7:45 p.m. Mrs. Goodson stated that
she could not recall if she sat in the bleachers or was sitting in her chair underneath
the canopy while watching this game, but that it was raining at the time. At some
point, Mrs. Goodson was sitting in her chair under the canopy when she walked
over to another field to watch another team play. While there, Mrs. Goodson
spoke with a couple as they stood under the canopy over those bleachers to protect
them from the rain. Mrs. Goodson then proceeded to walk about 50 feet to the
field where her son was playing, when she encountered the guy-wire and tripped
over it and fell. Mrs. Goodson stated that she never saw the guy-wire until after
the accident, as it was raining and there was poor lighting at the park. Mrs.
Goodson identified a series of pictures she and her husband took of the area in
question, after her accident. These pictures were submitted by the City in support
of its motion for summary judgment. Exhibit B, taken one week after the accident,
shows Mrs. Goodson standing behind the guy-wire, which she identified as being
in the same level where she struck it. The guy-wire was suspended off of the
ground at a height over Mrs. Goodson's ankles near her shins and was connected to
the canopy structure. Mrs. Goodson later went out to the Youth Park in May after
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her accident and took a picture of the area in question, which showed that the guy-
wires, but not the canopy structures, had been relocated.
The Goodsons also submitted the deposition testimony of Shane Hebert, the
Director of the Parks and Recreation Department for the City since 2011. Mr.
Hebert, who oversaw the administration of the Youth Park, contacted Jelks
regarding the construction of canopies over the existing bleachers at the park. Mr.
Hebert explained that he wanted to cover the bleachers because people had been
complaining about how hot it was and there was no shade at the park. Mr. Hebert
contacted Jelks, which had done work for Parks and Recreation Department prior
thereto, to construct an awning over each set of bleachers. Jelks submitted its
proposal for the construction of eve awnings over eight sets of bleachers August
26, 2013. Documentation reflected that Jelks submitted an invoice for the canopy
construction project on June 3, 2015, and was paid on June 3, 2015. Mr. Hebert
surveyed the construction of the canopies, acknowledging that he considered them
to be improvements to the existing structures. According to Mr. Hebert, the
dimensions of all of the canopy structures were based on the largest set of
bleachers and all of the canopy structures were built to these same specifications,
even though some of the bleachers were smaller than others, resulting in the
awnings being wider than the bleachers in some instances. Mr. Hebert admitted he
left it up to Jelks to make sure that the canopies were built according to existing
codes and regulations.
Mr. Hebert was questioned at length regarding various comments he made
relating to tax revenues benefitting the City from the construction of turf fields at
the Youth Park. In a social media post on Facebook in 2015, Mr. Hebert estimated
that the tournaments held at the Youth Park had raised tax revenues from
$80,000.00 to $150,000.00 each month the tournaments were held. In his
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deposition, Mr. Hebert explained that he was referring to taxable sales revenues
generated in the City, and not actual tax revenues.
The Goodsons' summary judgment evidence also consisted of the testimony
of Deanna Mankins, the City's Chief Financial Officer, and Stephen Nunnery, the
Chief Administrator for the City. Their testimony detailed financial aspects
relating to the Youth Park, including the budgeting process and financial audits
prepared on behalf of the City. Additionally, Mr. Nunnery testified that the
erection of the eight bleacher canopies, for which the City paid $30,150.00, was
classified as a capital improvement which needed council approval prior to the
construction. According to this testimony, the City's Parks and Recreation
Department actually had an operating loss of $289,000.00 for the fiscal year
ending in June 2016, and for the year ending in June of2017, it had an operating
loss of $208,000.00. The Goodsons submitted the social media post referencing
the financial benefit to the City from its Youth Park and an interview with Mr.
Hebert conducted by the Morning Advocate in which Mr. Hebert discussed the
financial benefits of hosting tournaments at the Youth Park to the City in support
of their opposition to the motion.
Upon examining all of the evidence on the motion for summary judgment,
we conclude that La. R.S. 9:2795 applies to the City. Without question, the City is
entitled to tort immunity for claims made at the Youth Park unless one of the
exceptions to the tort immunity statute applies. As the mover on the motion for
summary judgment, the City had the burden of proving its entitlement to tort
immunity under La. R.S. 9:2795. We find that the City failed to carry that burden
because there are genuine issues of fact and law precluding the granting of the
motion for summary judgment.
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Particularly, we find that there exists a genuine issue of material fact as to
whether the "stands" exception to recreational use immunity provided for in La.
R.S. 9:2795E(2)(c) applies in this case. Louisiana Revised Statute 1:3 mandates
that words "shall be read" with their context and "shall be construed according to
the common and approved usage of the language." The City offered no evidence
as to the generally prevailing meaning of the term "stands" as used in the context
of a recreational facility. Further, the City's own evidence demonstrated that the
canopy structures were considered improvements to the existing bleachers and
were added to the bleachers to address complaints by visitors to the Youth Park
that the bleachers were hot and there was no shade to protect them from the sun.
The City's only basis for asserting the canopies were not part of the bleachers over
which they stood is that the canopies were not permanently attached to the bleacher
structures.
However, the City failed to establish that the term "stands" could not be
reasonably construed to include the canopies erected over those stands and their
attendant structures, which were designed to improve the spectator experience at
the Youth Park. Nowhere in the statute or jurisprudence do we find a distinction
between the "stands" and a canopy erected above the stands. It would be
nonsensical to bar a spectator who is injured while sitting in the stands by a
defective piece of a canopy falling on her from filing a tort lawsuit against the
City, yet permit that same spectator who is injured because a defective seat to file a
lawsuit. Both situations could be interpreted to have occurred in "the stands," and
the "stands" exception found in La. R.S. 9:2795 would apply.
Because we find is a genuine issue of material fact as to whether the
"stands" exception to the recreational immunity afforded to parks such as the
Youth Park in question applies in this case, we pretermit discussion regarding
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whether any of the other exceptions to recreational use immunity is applicable in
this case. We hold that summary judgment decreeing the City immune from
liability for the injuries sued upon was improvidently granted. 2 Accordingly, we
reverse the summary judgment and remand the case for further proceedings.
CONCLUSION
For the foregoing reasons, the judgment appealed from is reversed. The case
is remanded to the trial court to conduct further proceedings consistent with this
opinion. All costs, in the amount of$3,095.50, are assessed to appellee, the City of
Zachary.
REVERSED AND REMANDED.
2 Nothing in this opinion would preclude the City from filing a new motion for summary
judgment with additional evidence or raising other issues or defenses which were not raised in
the motion for summary judgment in question.
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