Annette Beal v. Westchester Surplus Lines Insurance Company

ANNETTE BEAL * NO. 2021-CA-0187

VERSUS *

COURT OF APPEAL

WESTCHESTER SURPLUS *

LINES INSURANCE FOURTH CIRCUIT

COMPANY, ET AL. *

STATE OF LOUISIANA

*******

APPEAL FROM

CIVIL DISTRICT COURT, ORLEANS PARISH

NO. 2018-01145, DIVISION “J-15”

Honorable D. Nicole Sheppard,

******

Judge Regina Bartholomew-Woods

******

(Court composed of Judge Joy Cossich Lobrano, Judge Regina Bartholomew-

Woods, Judge Paula A. Brown)

Michael C. Ginart, Jr.

Joyce Duhe Young

Nicholas N.S. Cusimano

John C. Ginart

LAW OFFICES OF MICHAEL C. GINART, JR. & ASSOCIATES, L.L.C.

2114 Paris Road

Chalmette, Louisiana 70043

COUNSEL FOR APPELLANT/ANNETTE BEAL

Lambert J. Hassinger, Jr.

Jeffrey J. Siemann

GALLOWAY JOHNSON TOMPKINS BURR & SMITH

701 Poydras Street, 40th Floor

New Orleans, Louisiana 70139

COUNSEL FOR DEFENDANTS/APPELLEES

AFFIRMED

DECEMBER 15, 2021

RBW

JCL

PAB

In this trip and fall case, Plaintiff, Annette Beal (“Mrs. Beal”), seeks review

of the trial court’s judgment granting summary judgment in favor of Defendants,

French Quarter Festivals, Inc., and Audubon Nature Institute, Inc. (“FQF and

Audubon Institute”). FQF and Audubon Institute sought summary judgment,

asserting that pursuant to Louisiana’s recreational use immunity statutes they were

not liable for Mrs. Beal’s injuries and that the alleged hazard was open and

obvious. Mrs. Beal opposed the motion for summary judgment, claiming that FQF

and Audubon Institute are not entitled to immunity and that the hazard was not

open and obvious. For the reasons that follow, we find FQF and Audubon Institute

are entitled to immunity pursuant to the recreational use immunity statutes.

Accordingly, we affirm the trial court’s granting of FQF and Audubon Institute’s

motion for summary judgment.

1

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In April 2017, Mrs. Beal and her husband, Howard Beal (“Mr. Beal”),

attended the French Quarter Festival (“the Festival”). They arrived in the French

Quarter around 3:00 p.m. and proceeded to Woldenberg Riverfront Park. Mr. and

Mrs. Beal found seats near one of the music stages located in the park. When Mr.

Beal left to go get a drink, Mrs. Beal proceeded to the portable toilets. She walked

to and used the portable toilets without incident. As she was returning to her seat,

she tripped and fell over an exposed tree root. Mrs. Beal stated that she did not see

the tree root and further acknowledged that she was not looking down as she was

walking back to the stage area. She stated that upon examination, the tree root was

covered with natural tree debris. Mr. Beal stated that he did not see his wife fall;

however, he was alerted to the incident when he went looking for her after he

returned to their seats. The paramedics were called, and Mrs. Beal was transported

to the hospital by ambulance. Mrs. Beal alleges she sustained a trimalleolar

fracture to her ankle, which required surgery.

Mrs. Beal filed suit in February 2018, seeking damages for injuries allegedly

sustained because of her trip and fall while attending the Festival. She named as

defendants, FQF, FQF’s insurer Westchester Surplus Lines Insurance Company,

John Doe, an alleged FQF employee, and the City of New Orleans.1 She filed a

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The City of New Orleans filed a motion for summary judgment in September 2019, asserting it

did not have control or custody over the area where Mrs. Beal allegedly tripped and fell. The

City acknowledged that it owned the property in question, but the land on which the Aquarium

of the Americas and Woldenberg Riverfront Park is situated is leased to the Audubon Park

Commission, an independent agency of the City. The Audubon Park Commission contracted

with Audubon Institute to administer, operate and maintain all the Commission’s facilities. In

April 2016, the FQF contracted with the Audubon Institute to use Woldenberg Riverfront Park

for the Festivals occurring in years 2016-2018. The City was not a party to the agreement. In

2

supplemental and amending petition in July 2018, adding as defendants Audubon

Institute and its alleged insurer XYZ Insurance Company.2

In June 2020, FQF and Audubon Institute filed a motion for summary

judgment. Mrs. Beal filed an opposition, and the matter was heard in November

2020. On December 21, 2020, the trial court rendered a written judgment granting

FQF and Audubon Institute’s motion for summary judgment. Mrs. Beal

subsequently filed the present appeal.

STANDARD OF REVIEW

Appellate courts review summary judgment de novo. Independent Fire Ins.

Co. v. Sunbeam Corp., 99-2181, p. 7 (La. 2/29/00), 755 So.2d 226, 230.

Therefore, we apply the same standard the trial court uses in considering whether

summary judgment is appropriate by determining if genuine issues of material fact

exist. Francis v. Union Carbide Corp., 12-1397, p. 3 (La. App. 4 Cir. 5/8/13), 116

So.3d 858, 860 (citing King v. Dialysis Clinic Inc., 04-2116, p. 5 (La. App. 4 Cir.

1/4/06), 923 So.2d 177, 180). Summary judgment is granted when the pleadings,

depositions, answers to interrogatories, admissions, and affidavits show there is no

genuine issue of material fact. La. C.C.P. art. 966(A)(3)-(4). Facts are material if

they “insure or preclude recovery, affect a litigant’s ultimate success, or determine

the outcome of the legal dispute.” FMC Enterprises, L.L.C. v. Prytania-St. Mary

January 2020, in a consent judgment, the City’s motion for summary judgment was granted and

the City was dismissed from the litigation with prejudice.

2

In April 2019, Audubon Institute filed a cross claim against FQF and Westchester and a third-

party demand against National Casualty Company, alleging that Audubon Institute was an

additional named insured under the liability policy issued to FQF. Audubon Institute voluntarily

dismissed its cross claim against FQF and Westchester in May 2019, and voluntarily dismissed

its third-party demand against National Casualty Company in July 2019, after FQF and

Westchester agreed to provide a defense for and indemnification to Audubon Institute.

3

Condominiums Ass’n, Inc., 12-1634, p. 6 (La. App. 4 Cir. 5/15/13), 117 So.3d 217,

222 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94),

639 So.2d 730, 751).

The moving party carries the initial burden of showing that no genuine issue

of material fact exists, and “[a]ny doubt…regarding a material issue of fact must

be resolved against granting the motion and in favor of a trial on the merits.”

Barbarin v. Dudley, 00-0249, p. 6 (La. App. 4 Cir. 12/20/00), 775 So.2d 657, 660.

Where the moving party does not bear the burden of proof at trial, the moving

party need only show there is an absence of factual support for one or more

essential elements of the claim. Smith v. Treadway, 13-0131, p. 4 (La. App. 4 Cir.

11/27/13), 129 So.3d 825, 828. “The burden of proof does not shift to the party

opposing the summary judgment until the moving party first presents a prima facie

case that no genuine issues of material fact exist.” Bush v. Bud’s Boat Rental,

LLC, 13-0989, p. 3 (La. App. 4 Cir. 2/26/14), 135 So.3d 1189, 1191 (citing Oakley

v. Thebault, 96-0937, p. 3 (La. App. 4 Cir. 11/13/96), 684 So.2d 488, 490). At that

point “[t]he burden then shifts to the adverse party who has the burden to produce

factual support sufficient to establish the existence of a genuine issue of material

fact or that the mover is not entitled to judgment as a matter of law.” Bercy v. 337

Brooklyn, LLC, 20-0583, p. 3-4 (La. App. 4 Cir. 3/24/21), 315 So.3d 342, 345

(citing La. C.C.P. art. 966(D)(1)); See also Encalade v. A.H.G. Sols., LLC, 16-

0357, p. 9-11 (La. App. 4 Cir. 11/16/16), 204 So.3d 661, 666-67.

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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 erred in finding the tree root, which caused Mrs. Beal to trip

and fall, was an open and obvious hazard.

Recreational Use Immunity

Louisiana’s recreational use immunity statutes grant immunity to owners,

lessees, and occupants of property used for recreational purposes. La. R.S. 9:2791

provides in pertinent part:

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

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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.

La. R.S. 9:2795 states in part:

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.

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.

***

E. (2)(a) The limitation of liability provided by 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.

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Mrs. Beal alleged that she tripped and fell over a raised tree root in

Woldenberg Riverfront Park, a man-made park created on the levee and

surrounding area on the Mississippi River and adjacent to the Aquarium of the

Americas. The park is open to the public and used for walking, jogging,

picnicking, and as a walkway from the French Quarter to the Aquarium of the

Americas and Riverwalk. The park includes benches and sitting areas, where the

public can view the Mississippi River. As contemplated by the recreational

immunity statutes, the property falls within the definition of a public recreational

area. Mrs. Beal contends that FQF and Audubon Institute are not immune from

liability because the statutes were not intended to include, and do not include,

immunity for a music festival. She asserts that the statutes are only meant to apply

to activities that occur in the true outdoors.

Since the enactment of the immunity statutes, legislative amendments have

expanded the scope of immunity for protected classes and activities. See Richard

v. Hall, 03-1488, p. 25-28 (La. 4/23/04), 874 So.2d 131, 149-51 (examining the

legislative history in the creation of the recreational use immunity statutes and the

interplay between La. R.S. 9:2791 and La. R.S. 9:2795). Jurisprudence

interpreting the recreational use immunity statutes recognizes that the list of

activities set forth in the definition of “recreational purposes” is nonexclusive and

includes activities that are not specifically listed. Doyle v. Lonesome Dev., Ltd.

Liab. Co., 17-0787, p. 11 (La. App. 1 Cir. 7/18/18), 254 So.3d 714, 722

(concluding that soccer was included within the definition of “recreational

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purposes” and qualified as a recreational activity); See, e.g. Webb v. Parish of St.

Tammany, 06-0849, p. 6 (La. App. 1 Cir. 2/9/07), 959 So.2d 921, 925 (recognizing

softball was a recreational activity even though plaintiff was injured after the game

and was exiting the park).

Additionally, jurisprudence demonstrates that the statutes can apply even

when the person injured is not a participant in the sport. In Richard v. La.

Newpack Shrimp Co., Inc., 11-309 (La. App. 5 Cir. 12/28/11), 82 So.3d 541, the

Fifth Circuit considered whether the immunity statute applied to preclude liability

for injuries sustained when the plaintiff fell into a hole on the levee which led to a

boating ramp. The plaintiff was walking on the levee to reach the boating ramp,

where she intended to board a boat. The court concluded that the statute applied,

stating “La. R.S. 9:2795(A)(3) expansively defines ‘recreational purposes’ as

including but not limited to the enumerated list….” Id., 11-309, p. 9, 82 So.3d at

546. Therefore, the court found “Mrs. Richard’s activity was covered by that

omnibus clause ‘includ[ing] but not limited to.’ La. R.S. 9:2795(A)(3).” Id. The

Richard court reasoned that “[t]he ‘including, but not limited to’ language makes

clear that the Legislature did not intend that the list of enumerated activities was

exhaustive.” Id. The court further explained:

The plain wording of the Immunity Act only requires that

the lessee permits with or without charge any person to

use his land for recreational purposes. La. R.S.

9:2795(B)(1). The statute does not require that the

injury arise out of the recreational activity per se, as

long as the person injured was on the property for a

recreational purpose. Webb v. Parish of St.

Tammany, 06-0849, p. 6 (La. App. 1 Cir. 2/9/07), 959

So.2d 921, 925, writ denied, 07-0521 (La. 4/27/07), 955

8

So.2d 695 (citation omitted).

***

The sole purpose of Mrs. Richard’s walk over the

defendant’s levee property was to gain access to the boat

to use for recreational purposes. The walk was an integral

part of the recreational activities. Assuming non-

recreational use of the levee for commercial fishing did

take place, it did not affect the recreational use in

question. As we see it, the inquiry in any given case is

whether the permitted use in question is for

recreational purposes on a noncommercial

basis. Broussard v. Dep’t of Transp. & Dev., State of

La., 539 So.2d 824, 831 (La. App. 3 Cir.1989).

Id., 11-309, p. 9-11, 82 So.3d at 546-547 (Emphasis added).

Mrs. Beal points to the Fifth Circuit’s decision in Glorioso v. City of Kenner,

19-298 (La. App. 5 Cir. 12/18/19), 285 So.3d 601, in support of her contention that

the Festival is not a recreational activity within the scope of the recreational use

immunity statutes. In Glorioso, the plaintiff’s five-year-old daughter was attending

a gymnastics class at a gym owned by the City of Kenner and operated by its Parks

and Recreation Department. During the class, the plaintiff’s daughter slid off a

stage and cut her right thigh and buttock on a broken metal electrical box located at

the front of the stage. The plaintiff sought damages on behalf of his daughter,

alleging negligence and premises liability. The City of Kenner filed a motion for

summary judgment, arguing they were immune from liability pursuant to La. R.S.

9:2795. The trial court granted summary judgment, and on appeal, the Fifth

Circuit reversed the trial court’s judgment.

On appeal, the plaintiff averred that the trial court erroneously interpreted

the language of the recreational use immunity statutes to include gymnastics within

the definition of recreational purposes and to include any building, whether

“attached to the realty” within the definition of land. The City of Kenner argued

9

that urban land and buildings, including the gym at issue, were included under the

statute; and further, the gym was used for recreational purposes under the

“unlimited omnibus clause.” In reversing the trial court’s granting of summary

judgment, the Fifth Circuit explained:

The activities enumerated in the statute are clearly

activities that are typically done in, and require, the true

outdoors, such as fishing, hunting, and camping. And

while a very limited few of the activities enumerated in

the statute, typically done in the true outdoors, might

conceivably also be done indoors, this does not evidence

an intent on the part of the legislature to expand the

immunity of the statute to include all recreational

activities regardless of whether they are typically done

outdoors or indoors. In our opinion, the list of

enumerated activities evidences a clear intent of the

legislature to grant immunity for those recreational

activities in which one engages in the true outdoors.

Strictly construing this statute, as we are required to do,

we find that gymnastics is not a recreational purpose as

contemplated by La. R.S. 9:2795(A)(3) and as required

under Subsection E(2)(a) for the grant of immunity for

Kenner.

Glorioso, 19-298, p. 5-6, 285 So.3d at 605 (Emphasis in original).

Glorioso is distinguishable from the case before us. The activity in which

the plaintiff’s daughter was involved when she was injured was conducted inside a

building. The Glorioso court noted that gymnastics was not a sport that was

generally conducted outdoors, and in fact, the plaintiff’s daughter was indoors

when the injury occurred. Cf., Webb, 06-0849, p. 6, 959 So.2d at 925 (finding

softball was a recreational activity even though plaintiff was injured after the game

when he was exiting the park). In this case, both the musical festival Mrs. Beal

was attending and the injury she sustained when she tripped and fell over a tree

root occurred outdoors. As the First and Fifth Circuits note, the statute does not

require that the injury arise out of the recreational activity per se, as long as the

10

person injured was on the property for a recreational purpose. Id.; Richard v. La.

Newpack Shrimp Co., 11-309, p. 10, 82 So.3d at 547. Although a music festival

can occur indoors, there are numerous festivals in Louisiana which occur outdoors.

The issue becomes whether attending a music festival is considered an event

generally held in the true outdoors. In that there are no Louisiana cases which

have previously addressed this issue, the matter is one of first impression.

Two states that have considered this issue include Washington and

Wisconsin. In Matthews v. Elk Pioneer Days, 64 Wash. App. 433, 824 P.2d 541

(1992), the plaintiff sued for injuries she sustained when a canopy fell on her while

attending the Elk Pioneer Days Festival, put on by a Washington nonprofit

corporation. “The festival is held outdoors on the grounds of the Elk Community

Church…and consists of entertainment, competitions, and demonstrations. There is

no charge for the event, although the public may purchase food or arts and crafts

from various concessionaires who are charged a nominal fee by the Committee….”

Id., 64 Wash. App. at 435; 824 P.2d at 541. The plaintiff argued, in opposition,

that “outdoor recreation” under Washington’s recreational use immunity statute,

RCW 4.24.210, did not include the activity of attending a weekend celebration or

watching entertainment on an outdoor stage. The Matthews court discussed and

distinguished a Wisconsin case cited by defendant.

In Hall v. Turtle Lake Lions Club, 146 Wis.2d 486, 431 N.W.2d 696 (Ct.

App. 1988), the plaintiff was injured when he stepped into a hole on the grounds of

the Turtle Lake Village Park during a fair sponsored by the Turtle Lake Lions

Club. The Wisconsin court found that statutory immunity applied, relying upon

the statement of legislative intent that “where substantially similar circumstances

or activities [to those enumerated in the statute] exist, this legislation should be

11

liberally construed in favor of property owners to protect them from liability.”

Hall, 431 N.W.2d at 697 (quoting section 1 of Wis. Act 418). The court concluded

that a fair is “substantially similar” to several of the examples of the kinds of

activities set forth in the definition of recreational activity: “nature study,” “sight-

seeing,” as well as “any other...educational activity.” Hall, 431 N.W.2d at 697

(internal quotations omitted). The Matthews court distinguished Hall on the basis

that the statutes differed in the type of construction that should be given to the

language of the statutes. The court noted that Washington’s statute, RCW

4.24.200–.210, did “not provide for a policy of liberal construction in favor of

property owners.” Matthews, 64 Wash. App. at 437, 824 P.2d at 543. The court

found that festival activity is not similar to the examples of outdoor recreation

given in the Washington statute. The court concluded that the Washington

recreational use statute should be strictly construed. Id., 64 Wash. App. at 439;

824 P.2d at 544. Applying a strict construction, the Washington court found that

the festival was not “outdoor recreation” under the statute and reversed the trial

court’s granting of the defendant’s motion for summary judgment. Id.

In Richard v. Hall, the Louisiana Supreme Court expressly stated that “[t]he

enactment of La. [R.S.] 9:2795, a second more expansive immunity statute,

evidences an intent on the Legislature’s part that these statutes are to grant a broad

immunity from liability. The amendments to the statutes indicate the Legislature’s

will to expand the immunity.” Id., 03-1488, p. 28, 874 So.2d at 151. Like

Wisconsin’s recreational use statute, Louisiana’s recreational use immunity

statutes should be interpreted broadly. We therefore find this case more akin to

Hall than Matthews.

The Festival was created with the purpose of promoting the French Quarter

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and the City’s culture and heritage. The Festival is a free event where local

musicians perform, and local food/beverage vendors sell their product to the

public. The Festival is intended to take place outdoors and feature the natural and

architectural aspects of the French Quarter. Woldenberg Riverfront Park, the area

where the Beals were attending the Festival, was created, in part, for the public to

enjoy the scenic views of the Mississippi River. Further, when inclement weather

has threatened the event, the Festival is shortened, canceled, or rescheduled. The

Festival’s events are not moved to an indoor location. Mr. Beal acknowledged that

in the past there were times they did not attend the Festival because of the weather.

La. R.S. 9:2795(A)(3) expansively defines recreational purposes as including but

not limited to the enumerated list. Among the listed activities is “viewing or

enjoying historical, archaeological, scenic, or scientific sites.” La. R.S.

9:2795(A)(3). Because the Festival is intended to take place outdoors and features

the natural and architectural aspects of the French Quarter, including the

Mississippi River, along which Woldenberg Riverfront Park is located, we find

that the definition of recreational purposes is broad enough to include the activities

normally associated with attending an outdoor music festival, like the Festival.

Therefore, we find the festival is covered under Louisiana’s recreational use

immunity statutes.

Willful and/or Malicious Failure to Warn

Mrs. Beal, in her second assignment of error, contends that even if this Court

determines that the recreational use immunity statutes apply, FQF and Audubon

Institute are liable for her injuries because their failure to warn of a dangerous

condition was willful and/or malicious.

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Louisiana Revised Statute 9:2795(B)(1) states that a defendant is not entitled

to immunity where there is “willful or malicious failure to warn against a

dangerous condition, use, structure, or activity.” Once a defendant has established

that it is entitled to immunity under La. R.S. 9:2795, the burden of establishing a

malicious or willful failure to warn of a dangerous condition shifts to the plaintiff.

Richard v. La. Newpack Shrimp Co., Inc., 11-309, p. 12, 82 So.3d at 548 (citing

DeLafosse v. Vill. of Pine Prairie, 08-0693, p. 5 (La. App. 3 Cir. 12/10/08)) 998

So.2d 1248, 1252). “A failure to warn of a dangerous condition connotes a

conscious course of action, and is deemed willful or malicious when action is

knowingly taken or not taken, which would likely cause injury, with conscious

indifference to consequences thereof.” Robinson v. Jefferson Parish Sch. Bd., 08-

1224, p. 18 (La. App. 5 Cir. 4/7/09), 9 So.3d 1035, 1046. A defendant owes a duty

to discover any unreasonably dangerous condition on the premises and either

correct it or warn potential victims of its existence. Doyle, 17-0787, p. 17, 254

So.3d at 725. However, “this duty does not extend to potentially dangerous

conditions which should have been observed by an individual in the exercise of

reasonable care or which are as obvious to a property owner as to a visitor.” Id.

In DeLafosse, the plaintiff argued that the defendant’s employees were

grossly negligent in the placement and configuration of the bleachers at the

ballpark and in maintaining only a four-foot fence to protect the patrons. The

plaintiff argued that the defendant knew or should have known that a four-foot

fence would not contain flying baseballs. The Third Circuit found that the plaintiff

did not present any evidence that would support her argument that the defendant

was grossly negligent in the configuration of the stands or in the maintenance of

the four-foot fence. Similarly, the court in Richard v. La. Newpack Shrimp Co.,

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Inc., found that considering the plaintiff’s testimony that she was aware of the ruts

in the levee before the accident, the defendant’s duty did not extend to the alleged

obvious potentially dangerous condition.

Mrs. Beal points to the deposition testimony of Abraham Gaulton (“Mr.

Gaulton”), the operations manager for FQF, and the affidavit of her expert witness

Brian Avery as evidence that FQF and Audubon Institute had a duty to warn of the

alleged dangerous condition. Mr. Gaulton stated in his deposition testimony that

he and an employee of Audubon Institute would inspect the venue property prior to

moving on the site. FQF prepared the layout of the event and Audubon Institute

approved it, including the location for the portable toilets. Audubon Institute

provided maintenance and grounds keeping year-round.

Mr. Avery attested that he was experienced in the development and

implementation of management practices, safety directives, use of safety

devices/equipment, identification, and protection processes to eliminate

environmental conditions, assessment of facility appropriateness, staff/patron

abilities, and the duty to supervise. Upon reviewing the pleadings, depositions,

contracts, discovery, and photographs, he opined that the pathway provided for

access to the portable toilets was not a reasonably safe walking surface for patrons

attending an event to regularly traverse to access the portable toilets. He

concluded that the defendants:

…increased the risk of hazards inherent to the

environment or activity by the placement of the port-o-

johns; . . . failed to establish pathways to reduce patron

exposures and risks; . . . failed to factor the proper

placement of event elements in order to unnecessarily

expose patrons to known and foreseeable hazards

resulting from the use of unimproved pathways; . . . and

failed to provide clear indicators and warnings of the

potential for trip hazards upon ingress and egress of the

15

port-o-johns in order for patrons to be reminded to

observe for hazards within the unimproved pathway.

The deposition testimony of Mr. Gaulton and the affidavit of Mr. Avery

produced by Mrs. Beal does not support any finding that FQF and Audubon

Institute’s alleged failure to warn of the alleged defect was willful or malicious.

There was no evidence in the record to suggest that FQF and Audubon Institute

took a conscious course of action likely to cause injury with an indifference to the

consequences. Mr. Gaulton testified that FQF and Audubon Institute worked

together to determine the layout for the festival. He stated that the Audubon

Institute provided maintenance and grounds-keeping year-round for Woldenberg

Riverfront Park. Mr. Avery’s opinion that the pathway provided for access to the

portable toilets was not a reasonably safe walking surface for patrons attending the

event did not reference any specific facts to support a finding of intentional or

grossly negligent conduct. Further, as FQF and Audubon Institute point out, Mrs.

Beal walked past the tree on her way to the portable toilets without incident; she

acknowledged she was not attentive to where she was walking; and she admitted

that she was more concerned about moving about the groups of people attending

the festival. In the absence of evidence to demonstrate FQF and Audubon Institute

acted in conscious disregard of the alleged dangerous condition, Mrs. Beal has

failed to meet her burden of proof.

Open and Obvious Hazard

In her final assignment of error, Mrs. Beal asserts that the trial court erred in

finding that the tree root was an open and obvious hazard. However, because we

find FQF and Audubon Institute are immune from liability pursuant to Louisiana’s

recreational use immunity statutes and find summary judgment appropriate on this

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basis, we pretermit discussion of whether the alleged defect was an open and

obvious hazard.

CONCLUSION

Accordingly, like the trial court, we find FQF and Audubon Institute are

immune from liability pursuant to La. R.S. 9:2791 and La. R.S. 9:2795. In light of

our finding of statutory immunity barring the instant suit, we pretermit discussion

of whether the alleged defect was open and obvious. Therefore, the trial court’s

granting of summary judgment in favor of FQF and Audubon Institute was

appropriate.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment granting

summary judgment in favor of FQF and Audubon Institute and dismissing Mrs.

Beal’s claims against them.

AFFIRMED

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