The opinion
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
CA 21-636
MICHAEL MITCHELL
VERSUS
CITY OF NATCHITOCHES, ET AL.
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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C-90628 A
HONORABLE DESIREE DYESS, DISTRICT JUDGE
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BILLY H. EZELL
JUDGE
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Court composed of Sylvia R. Cooks, Chief Judge, Billy H. Ezell, and John E.
Conery, Judges.
AFFIRMED.
Alexander Stephan Lyons
400 Travis Street, Suite 1309
Shreveport, LA 71101
(318) 674-9711
COUNSEL FOR DEFENDANT/APPELLEE:
City of Natchitoches
Erika F. Cedars
McCoy, Roberts & Begnaud
P. O. Box 1369
Natchitoches, LA 71458
(318) 352-6495
COUNSEL FOR DEFENDANT/APPELLEE:
Natchitoches Parish Water Works District No. 1
DaShawn Hayes
The Hayes Law Firm
1100 Poydras Street, Suite 1530
New Orleans, LA 70163
(504) 799-0374
COUNSEL FOR PLAINTIFF/APPELLANT:
Michael Mitchell
EZELL, Judge.
Michael Mitchell appeals the decision of the trial court below granting
summary judgment in favor of the City of Natchitoches (the City), thereby
dismissing his claims in this premises liability matter. For the following reasons,
we hereby affirm the decision of the trial court.
On October 12, 2017, Mr. Mitchell was exiting his boat at a boat launch and
dock at Sibley Lake in Natchitoches. Mr. Mitchell claims that as he stepped out of
his boat onto the dock, a board broke lengthwise, causing him to fall and injure
himself. He then filed the current suit against the City.
After discovery in the matter, the City filed a motion for summary judgment,
claiming Mr. Mitchell had failed to create a genuine issue of material fact as to the
City’s knowledge of the defect. Further, the City set forth that it was protected
from liability under the Recreational Use Statute, La.R.S. 9:2795. The trial court
agreed, granting the City’s motion for summary judgment. From that decision, Mr.
Mitchell appeals.
On appeal, Mr. Mitchell asserts two assignments of error. He claims that the
trial court erred in finding he had failed to create a genuine issue of material fact as
to the City’s constructive knowledge of the defect and that the trial court erred in
finding recreational use immunity was improperly granted where the City did not
lease the land from a private entity. We disagree.
A moving party is entitled to summary judgment when it shows that there
are no genuine issues of material fact and that it “is entitled to judgment as a matter
of law.” La.Code Civ.P. art. 966(A)(3). Summary judgment is favored by law and
provides a vehicle by which “the just, speedy, and inexpensive determination” of
an action may be achieved. La.Code Civ.P. art. 966(A)(2).
Appellate courts review summary judgments de novo under the
same criteria that govern a district court’s consideration of whether
summary judgment is appropriate. Greemon v. City of Bossier City,
2010-2828 (La. 7/1/11), 65 So.3d 1263, 1267; Samaha v. Rau, 2007-
1726 (La. 2/26/08), 977 So.2d 880, 882; Allen v. State ex rel. Ernest N.
Morial-New Orleans Exhibition Hall Authority, 2002-1072 (La.
4/9/03), 842 So.2d 373, 377. In ruling on a motion for summary
judgment, the judge’s role is not to evaluate the weight of the
evidence or to determine the truth of the matter, but instead to
determine whether there is a genuine issue of triable fact. All doubts
should be resolved in the non-moving party’s favor. Hines v. Garrett,
2004-0806 (La. 6/25/04), 876 So.2d 764, 765. A fact is material if it
potentially ensures or precludes recovery, affects a litigant’s ultimate
success, or determines the outcome of the legal dispute. A genuine
issue is one as to which reasonable persons could disagree; if
reasonable persons could reach only one conclusion, there is no need
for a trial on that issue and summary judgment is appropriate. Id. at
765–66.
On motion for summary judgment, the burden of proof remains
with the movant. However, if the moving party will not bear the
burden of proof on the issue at trial and points out that there is an
absence of factual support for one or more elements essential to the
adverse party’s claim, action, or defense, then the non-moving party
must produce factual support sufficient to establish that he will be
able to satisfy his evidentiary burden of proof at trial. If the opponent
of the motion fails to do so, there is no genuine issue of material fact
and summary judgment will be granted. See La. C.C.P. art. 966(D)(1);
see also Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So.3d 1002,
1006.
Larson v. XYZ Ins. Co., 16-745, pp. 6-7 (La. 5/3/17), 226 So.3d 412, 416.
The liability of public entities for defects in premises within their garde is
governed by La.R.S. 9:2800 which reads, in pertinent part:
A. A public entity is responsible under Civil Code
Article 2317 for damages caused by the condition of
buildings within its care and custody.
....
C. Except as provided for in Subsections A and B of
this Section, no person shall have a cause of action based
solely upon liability imposed under Civil Code Article
2317 against a public entity for damages caused by the
condition of things within its care and custody unless the
public entity had actual or constructive notice of the
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particular vice or defect which caused the damage prior
to the occurrence, and the public entity has had a
reasonable opportunity to remedy the defect and has
failed to do so.
Moreover, in the current matter, the potential liability of the City is subject
to the limitations found in the recreational use statute, La.R.S. 9:2795. The
applicability of La.R.S. 9:2795 to Sibley Lake has previously been confirmed by
this court, applying the statute to a different boat ramp at the park.1 See Raymond v.
City of Natchitoches, 20-23 (La.App. 3 Cir. 10/21/20), 305 So.3d 1027, writ denied,
20-1353 (La. 1/20/21), 308 So.3d 1164.
Louisiana Revised Statutes 9:2795 reads, in pertinent part (emphasis ours):
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.
After a review of the record before this court, we find that there is no
genuine issue of material fact as to whether the City had any knowledge at all,
constructive or actual, that the dock at issue posed an unreasonable risk of harm.
Furthermore, there is no evidence in the record whatsoever that the City willfully
1
Mr. Mitchell asserts that recreational use immunity does not apply to the City because
the “boat launch is not private land that was leased to the City of Natchitoches.” A plain reading
of the statute shows that it applies to “an owner of land.” La.R.S. 9:2795 (B)(1). As the owner of
the land in question, the immunity clearly applies, as noted in Raymond, 305 So.3d 1027. See
also Benoit v. City of Lake Charles, 05-89 (La.App. 3 Cir. 7/20/05), 907 So.2d 931, writ denied,
05-2154 (La. 3/17/06), 925 So.2d 539.
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or maliciously failed to warn the public of any defect, as required under the
Recreational Use Statute.
The record before the court shows pictures of a dock containing two steps.
The board at issue was located on the bottom step, running parallel to the dock,
resting immediately atop still intact wood that extends beyond the break. The
broken board is clearly split lengthwise where it was nailed in, with roughly one to
three inches of wood missing down the length of the board. It did not break
through towards the water, i.e., Mr. Mitchell did not step through the board as if it
were rotten. Seemingly, the outer lip area of the board split and gave way as Mr.
Mitchell stepped onto it.
However, Mr. Mitchell was unequivocal in his deposition testimony that the
board did not appear broken, rotten, or show any defect prior to him stepping onto
it. He testified that it was daylight and he was clearly and carefully looking where
he was stepping. He stated that the board looked like it would hold him and didn’t
look broken in any way prior to him stepping on it.
Affidavits of City employees Bobby Ray Petite and Kerry Gerald, who
worked the grounds of the park for the City, state that they had never seen nor been
advised of any defects in the dock. Both men further testified again in deposition
that had not only had they never seen nor been made aware of any defect, but had
they become aware of one, they were to record it and report it to their supervisor,
Michael Braxton. Mr. Braxton testified that no reports of defects regarding the
dock had been made prior to this suit.
It is clear that the City had no knowledge, actual or constructive, that the
board at issue was potentially hazardous prior to this suit. Mr. Mitchell himself
admits that the board looked perfectly fine to a careful observer prior to his
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accident. As such, the board would have looked perfectly normal to any City
employees who would have seen it prior to the accident. Nothing in the record
indicates that the City or any of its employees had any knowledge of any defect
whatsoever, let alone that the City willfully or maliciously failed to warn the public
of any defect in the dock, as required for recovery under Louisiana recreational use
immunity. Mr. Mitchell failed to raise a genuine issue of triable fact. Therefore,
we can find no error in the decision of the trial court granting summary judgment
in favor of the City .
For the above reasons, the decision of the trial court below is affirmed.
Costs of this appeal are hereby assessed against Mr. Mitchell.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.
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