The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
09-364
RONALD ABLES
VERSUS
FRANK C. MINVIELLE,
LEONARD H. MINVIELLE,
TWIN PINE FARMS, L.L.C.,
AND J.P. DUHE - LAMBERT
DUHE ESTATES
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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 110884-E
HONORABLE KEITH R. J. COMEAUX, DISTRICT JUDGE
************
JAMES T. GENOVESE
JUDGE
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Court composed of John D. Saunders, Jimmie C. Peters, and James T. Genovese,
Judges.
AFFIRMED.
Anthony J. Fontana, Jr.
210 N. Washington Street
Abbeville, Louisiana 70510
(337) 898-8332
COUNSEL FOR PLAINTIFF/APPELLANT:
Ronald Ables
Kevin P. Landreneau
Johanna R. Landreneau
10357 Old Hammond Highway
Baton Rouge, Louisiana 70816
(225) 293-0886
COUNSEL FOR DEFENDANTS/APPELLEES:
Frank C. Minvielle, Leonard H. Minvielle,
and Twin Pine Farms, L.L.C.
GENOVESE, Judge.
This litigation arises out of an accident wherein Cody Ray Ables, the son
of Plaintiff, Ronald Ables (Mr. Ables), died from injuries he sustained while
riding a four-wheeler on property owned by J. P. Duhe–Lambert Duhe Estates.
Mr. Ables filed suit against the owners as well as the lessees of the farm land,
Frank C. Minvielle, Leonard H. Minvielle, and Twin Pine Farms, L.L.C.
(hereinafter collectively referred to as Twin Pine Farms). The parties filed
countervailing Motions for Summary Judgment on the issue of liability. The trial
court denied the Motion for Summary Judgment filed by Mr. Ables and granted
the Motion for Summary Judgment in favor of Twin Pine Farms. Mr. Ables
appeals the trial court’s dismissal of his suit against Twin Pine Farms. For the
following reasons, we affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
According to the allegations set forth in the Petition for Damages Due to
Wrongful Death and Survival Action filed by Mr. Ables, Cody Ables, on or about
May 8, 2007, “was riding his friend’s four-wheeler” on property being farmed by
Twin Pine Farms when, “[u]nknown to [Cody Ables,] a cable was stretched
across the dirt road that runs across the [property at issue herein] at a location
which is about the midway point in the road where a tree line exists on both sides
of the road.” Mr. Ables alleged that “[t]he cable was not marked with flags,
brightly colored paint[,] or any other means to identify it to the naked eye of
someone traveling down the road on a four-wheeler.” His petition further
alleged:
As [Cody Ables] was traveling down the road, he saw the
barrel blocking his passage and he veered to the side, right into the
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path of the cable that caught him in his chest throwing him
backward off his four-wheeler and causing him to sustain serious
injuries from which after a painful and agonizing time he died.
Twin Pine Farms answered the petition denying liability and specifically
asserting immunity from liability pursuant to the provisions of La.R.S. 9:2800.4.
Following discovery, Twin Pine Farms filed a Motion for Summary Judgment
reasserting their statutory immunity under La.R.S. 9:2800.4. Mr. Ables also filed a
Motion for Partial Summary Judgment seeking judgment on the issue of Twin Pine
Farms’ liability.
At the hearing held on November 26, 2008, Twin Pine Farms offered the
following exhibits as evidence in support of its Motion for Summary Judgment: the
affidavit of Leonard Minvielle; excerpts of Leonard Minvielle’s deposition; and, a
certified copy of Cody Ables’ toxicology report prepared by the Iberia Parish
Coroner’s Office. Mr. Ables introduced into evidence the entire depositions of both
Leonard and Frank Minvielle in support of his countervailing motion.
After taking the matter under advisement and allowing the parties to submit
post-hearing memoranda, the trial court issued written Reasons for Judgment on
December 11, 2008, granting Twin Pine Farms’ Motion for Summary Judgment on
the issue of liability and denying Mr. Ables’ motion. In its Reasons for Judgment, the
trial court declared:
In this case, Twin Pine Farms began leasing the property eight
years before the accident. Leonard Minvielle erected and maintained
cable barriers at all of the entrances to the farmland and within certain
areas of the farmland. Defendants assert that they never gave
permission to Cody Able[s] to be on [their] farmland. In fact[,] the
barriers were erected to prevent trespassers from entering and installed
on the barriers were signs which read “Posted, Keep Out[.”] In order to
reach the barrier he ran into, he left the public road and travelled [sic] on
his four[-]wheeler about a half mile. Defendant[s] assert[] that [Cody
Ables] was clearly trespassing at the time of the accident.
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In Plaintiff’s countervailing Motion for Summary Judgment, he
asserts that the [D]efendant[s] [were] negligent and relies on Bourg v.
Redden, 351 So.2d 1300 (La.App. 1 Cir. 1977). However, as pointed
out by [D]efendant[s], this case was decided prior to the enactment of
[La.R.S.] 9:2800.4[,] and the law has changed to provide that the
[P]laintiff must show intentional or gross negligence on the part of the
[D]efendant[s]. No such showing has been made to this [c]ourt.
The [c]ourt agrees with Defendant[s’] position and grants
[s]ummary [j]udgment in favor of Defendant[s]. The basic facts of the
case are uncontroverted. Cody Able[s] was riding his four[-]wheeler on
[D]efendant[s’] land without permission. [Louisiana Revised Statutes]
9:2800.4 is clear that [D]efendant[s] cannot be liable unless there has
been gross negligence. Plaintiff has the burden of proving gross
negligence and was not able to support this. For these reasons,
Defendant[s’] Motion for Summary Judgment is granted. The [c]ourt
denies Plaintiff’s Motion for Summary Judgment.
A judgment dismissing Mr. Ables’ claims with prejudice against Twin Pine Farms
was signed by the trial court on January 22, 2009. It is from this judgment that Mr.
Ables appeals.
LAW AND ANALYSIS
Assignment of Error
In his sole assignment of error, Mr. Ables asserts that genuine issues of
material fact exist which prohibit Twin Pine Farms from being granted summary
judgment on the issue of statutory immunity at this stage of the proceedings.
Standard of Review
In DeLafosse v. Village of Pine Prairie, 08-693, p. 2 (La.App. 3 Cir. 12/10/08),
998 So.2d 1248, 1250, writ denied, 09-74 (La. 2/4/09), 999 So.2d 766, this court
stated the following as to a determination of whether summary judgment is
appropriate:
Appellate courts review summary judgments de novo, using the
same analysis as the trial court in deciding whether summary judgment
is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512
(La.7/5/94), 639 So.2d 730. A Motion for Summary Judgment must be
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granted if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there
is no genuine issue of material fact and that the mover is entitled to
judgment as a matter of law. La.Code Civ.P. art. 966(B). As for the
burden of proof, Article 966(C)(2) provides:
The burden of proof remains with the movant.
However, if the movant will not bear the burden of proof
at trial on the matter that is before the court on the Motion
for Summary Judgment, the movant’s burden on the motion
does not require him to negate all essential elements of the
adverse party’s claim, action, or defense, but rather to point
out to the court that there is an absence of factual support
for one or more elements essential to the adverse party’s
claim, action, or defense. Thereafter, if the adverse party
fails to produce factual support sufficient to establish that
he will be able to satisfy his evidentiary burden of proof at
trial, there is no genuine issue of material fact.
Discussion
Louisiana Revised Statutes 9:2800.4 provides, in pertinent part:
A. As used in this Section:
(1) “Owner” means the owner and also a tenant, lessee, occupant,
or person in control of any farm or forest land or in control of any oil,
gas, or mineral property.
(2) “Farm land or forest land” shall mean bona fide agricultural
or timberland assessed as such for parish ad valorem taxes.
....
B. An owner of farm or forest land shall not be liable to any
person, who unlawfully enters upon his farm or forest land, for damages
for any injury, death, or loss which occurs while on the farm or forest
land of the owner, unless such damage, injury, or death was caused by
the intentional act or gross negligence of the owner.
In Roton v. Falconer, 42,452, pp. 9-10 (La. App. 2 Cir. 10/3/07), 966 So.2d
790, 795 (alteration in part in original), the second circuit analyzed the concept of
“gross negligence” as follows:
Gross negligence has a well-defined legal meaning distinctly
separate, and different, from ordinary negligence. Gross negligence has
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been defined as the “want of even slight care and diligence” and the
“want of that diligence which even careless men are accustomed to
exercise.” It has also been termed the “entire absence of care” and the
“utter disregard of the dictates of prudence, amounting to complete
neglect of the rights of others.” Additionally, gross negligence has been
described as an “extreme departure from ordinary care or the want of
even scant care.” [Internal citations omitted.] Rabalais v. Nash,
2006-0999 (La.3/9/07), 952 So.2d 653; Foshee v. Louisiana Farm
Bureau Casualty Insurance Co., 41,842 (La.App.2d Cir.1/31/07), 948
So.2d 1171, writ denied, 2007-0483 (La.4/20/07), 954 So.2d 169.
[Louisiana Revised Statues] 9:2800.4 does not define “intentional
act.” We find useful the definition given for the term by the Louisiana
Supreme Court when considering the intentional act exception to the
exclusivity provision of the Workers’ Compensation Act. In White v.
Monsanto Company, 585 So.2d 1205 (La.1991), the court stated:
The meaning of “intent” is that the person who acts either
(1) consciously desires the physical result of his act,
whatever the likelihood of that result happening from his
conduct; or (2) knows that that result is substantially
certain to follow from his conduct, whatever his desire may
be as to that result. Thus, intent has reference to the
consequences of an act rather than to the act itself. Only
where the actor entertained a desire to bring about the
consequences that followed or where the actor believed
that the result was substantially certain to follow has an act
been characterized as intentional.
“Substantially certain to follow” requires more than a reasonable
probability that an injury will occur and “certain” has been defined to
mean “inevitable” or “incapable of failing.” Further, mere knowledge
and appreciation of a risk does not constitute intent, nor does reckless
or wanton conduct by an employer constitute intentional wrongdoing.
Reeves v. Structural Preservation Systems, 1998-1795 (La.3/12/99), 731
So.2d 208.
Mr. Ables asserts that the condition which caused the death of his son was a
grossly negligent condition that was admittedly created by Defendants. In his brief,
Mr. Ables argues that the trial court’s “ruling was made despite specific allegations
by [Plaintiff] of the ‘gross negligence’ of [Defendants].” Mr. Ables further asserts
these specific allegations were supported by the evidence, i.e., the depositions of
Leonard and Frank Minvielle.
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In his deposition and affidavit, Leonard Minvielle attests that the cable barrier
was already in existence when Twin Pine Farms began leasing the property at issue
herein, and he admits that he has maintained the cable barrier in question. At his
deposition, Leonard Minvielle testified, “I don’t have a sign specifically saying
[‘]warning, cable.[’] I have signs that say [‘]posted, keep out,[’] so they should
never even get to this to even know that that’s there. They shouldn’t be here to start
with.” Frank Minvielle’s deposition testimony corroborates Leonard Minvielle’s
assertions.
Mr. Ables argues that the testimony of Leonard and Frank Minvielle is an
admission that they created the dangerous condition which killed Cody Ables;
therefore, Twin Pine Farms was grossly negligent. Mr. Ables also asserts that the
facts in the case of Bourg, 351 So.2d 1300, are identical to those in this case.
In Bourg, defendant strung a steel cable across a road he knew was regularly
traveled by motorcyclists. Later that same day, two motorcyclists, with two
occupants each, hit the stretched cable, injuring three and killing one. While Bourg
is analogous in its factual content, its holding is not applicable in the instant matter
since it pre-dated the enactment of La.R.S. 9:2800.4 in 1987. In Bourg, the
plaintiffs were not held to the burden of proving gross negligence because they were
trespassing on another’s property. Thus, we find the trial court was correct in
concluding that Mr. Ables’ reliance upon Bourg was misplaced.
Considering the evidence before this court, we find no error in the trial court’s
ruling that the actions of Twin Pine Farms did not constitute gross negligence;
therefore, we find that the trial court did not err in concluding that Twin Pine Farms
is entitled to immunity from liability pursuant to La.R.S. 9:2800.4.
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DECREE
For the above reasons, the judgment of the trial court granting Defendants’
Motion for Summary Judgment on the issue of liability is affirmed. Costs of this
appeal are assessed against Plaintiff/Appellant, Ronald Ables.
AFFIRMED.
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