Opinion
2022 CA 0514.
11-04-2022
Louis LESTER v. BREC FOUNDATION and John Doe.
Russell W. Beall , William W. Thies , Baton Rouge, Louisiana, and Darryl M. Breaux , Evan A. Breaux , Metairie, Louisiana, Counsel for Plaintiff/Appellant, Louis Lester. Christopher D. Billings , James R. Raines , Alexa N. Candelora , Baton Rouge, Louisiana, Counsel for Defendants/Appellees, Recreation and Park Commission for the Parish of East Baton Rouge (BREC) and Leslie LeBlanc. BEFORE: WHIPPLE, C.J., PENZATO, AND LANIER, JJ.
Russell W. Beall , William W. Thies , Baton Rouge, Louisiana, and Darryl M. Breaux , Evan A. Breaux , Metairie, Louisiana, Counsel for Plaintiff/Appellant, Louis Lester.
Christopher D. Billings , James R. Raines , Alexa N. Candelora , Baton Rouge, Louisiana, Counsel for Defendants/Appellees, Recreation and Park Commission for the Parish of East Baton Rouge (BREC) and Leslie LeBlanc.
BEFORE: WHIPPLE, C.J., PENZATO, AND LANIER, JJ.
PENZATO, J.
The plaintiff, Louis Lester, appeals from the trial court's judgment granting a motion for summary judgment filed by defendants, Recreation and Park Commission for the Parish of East Baton Rouge (BREC) and Leslie LeBlanc. For the following reasons, we affirm in part, reverse in part, and remand.
UNDISPUTED FACTS AND PROCEDURAL HISTORY
The subject incident occurred on May 28, 2019, at Santa Maria Golf Course, a public golf course owned and operated by BREC. Mr. Lester was at Santa Maria to play golf. Mr. LeBlanc was at Santa Maria serving as BREC's volunteer golf marshal.
While Mr. Lester was standing near the first tee box, Mr. LeBlanc approached, driving a golf cart, to advise Mr. Lester and his golfing partner that two additional golfers would be joining them. As Mr. LeBlanc continued to drive the golf cart toward Mr. Lester, he reached down to pick up a clipboard that had fallen onto the floor of the golf cart. When Mr. LeBlanc looked up, Mr. Lester was in his path, walking toward the rear of his own golf cart. Mr. LeBlanc was unable to stop the golf cart before running into Mr. Lester.
As a result of injuries allegedly sustained during this incident, Mr. Lester filed a suit for damages against BREC and Mr. LeBlanc, alleging that Mr. LeBlanc failed to keep his vehicle (the golf cart) under control, failed to see what should have been seen, failed to avoid a collision, and engaged in "careless operation." Mr. Lester alleged that BREC is vicariously liable for Mr. LeBlanc's negligence in the course and scope of performing duties on behalf of BREC. See La. C.C. art. 2320.
"John Doe" and "BREC Foundation" were named as defendants in Mr. Lester's original petition for damages. Mr. LeBlanc and BREC were added in Mr. Lester's first and second supplemental and amending petitions. Answers were filed on behalf of Mr. LeBlanc and BREC, and BREC Foundation was subsequently dismissed.
BREC and Mr. LeBlanc subsequently filed a motion for summary judgment to dismiss the claims asserted by Mr. Lester. The motion was premised solely on the application of La. R.S. 9:2795, one of Louisiana's recreational use immunity statutes. BREC and Mr. LeBlanc maintained that Mr. Lester was injured while he was engaged in a recreational activity on property owned by BREC, a political subdivision, and made available to the public for recreational use. Thus, they argued that all statutory requirements are satisfied, and no statutory exceptions apply.
In their motion for summary judgment, BREC and Mr. LeBlanc did not seek immunity pursuant to the other recreational use provision, La. R.S. 9:2791. Therefore, the application of this statute is not at issue. La. C.C.P. art. 966(F).
In opposition, Mr. Lester asserted that La. R.S. 9:2795 does not apply to this matter, which arises out of a motor vehicle/pedestrian collision. Mr. Lester maintained that immunity pursuant to this statute only applies where a defect in the land caused the injury, and a golf cart — the injury-causing thing — does not satisfy the statutory definition of "land." He further contended that his vicarious liability cause of action against BREC is not predicated upon "supervision of land" and, therefore, is not within the purview of La. R.S. 9:2795(E)(2)(b). Finally, Mr. Lester argued that, as Mr. LeBlanc approached him on the golf cart, he willfully failed to warn Mr. Lester that a crash was imminent, triggering the exception to immunity for a "willful or malicious failure to warn against a dangerous condition." La. R.S. 9:2795(B)(1).
The trial court granted the motion for summary judgment in open court at the conclusion of the contradictory hearing. A judgment granting the motion in favor of BREC and Mr. LeBlanc and dismissing Mr. Lester's claims against both defendants was signed on March 18, 2022. Mr. Lester filed the instant appeal, seeking reversal of this judgment. He argues on appeal that the trial court erred in finding that BREC and Mr. LeBlanc are entitled to immunity per La. R.S. 9:2795,
APPLICABLE LAW
Motion for Summary Judgment and Standard of Review
After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). Using the same criteria as the trial court, appellate courts review evidence de novo to determine whether summary judgment is appropriate. Aucoin v. Larpenter, 2020-0792 (La. App. 1st Cir. 4/16/21), 324 So.3d 626, 632, writ denied, 2021-00688 (La. 9/27/21), 324 So.3d 87.
The burden of proof rests with the mover. La. C.C.P. art. 966(D)(1). Additionally, tort immunity is an affirmative defense, and one asserting the defense bears the burden of proof, Aucoin, 324 So.3d at 633. When the moving party will bear the burden of proof at trial, he must support his motion for summary judgment with credible evidence that would entitle him to a directed verdict if not controverted at trial. Aucoin, 324 So.3d at 632, citing Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So.2d 764, 766 (per curiam). Such an affirmative showing shifts the burden of production to the party opposing the motion and requires the opposing party to produce evidence to demonstrate the existence of a genuine issue for trial. Aucoin, 324 So.3d at 632, citing Hines, 876 So.2d at 766-67.
A motion for directed verdict is appropriately granted when, after considering all evidentiary inferences in the light most favorable to the party opposing the motion, it is clear the facts and inferences are so overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict. Wachovia Mortgage Corp. v. Hoover, 2021-1035 (La. App. 1st Cir. 4/8/22), 342 So.3d 1, 4, writ denied, 2022-00860 (La. 9/27/22), 347 So.3d 156.
Here, the primary issue concerning the interpretation and application of La. R.S. 9:2795 to the undisputed facts presents a question of law. See Marco Outdoor Advertising, Inc. v. Department of Transportation and Development By & Through Wilson, 2021-0123, 2021-0353, 2021-0354 (La. App. 1st Cir. 7/13/21), 329 So.3d 288, 299, writ denied, 2021-01195 (La. 11/10/21), 326 So.3d 1247.
Recreational Immunity Statute and Rules of Statutory Interpretation
Louisiana Revised Statutes 9:2795 pertinently states:
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.
* * *
B. (l) 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 manmade.
* * *
D. Nothing in this Section shall be construed to relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this Section to exercise care in his use of such land and in his
activities thereon, or from the legal consequences of failure to employ such care.
E. (l) The limitation of liability provided in this Section shall apply to any lands or water bottoms owned, leased, or managed by the Department of Wildlife and Fisheries, regardless of the purposes for which the land or water bottoms are used, and whether they are used for recreational or nonrecreational purposes.
(2)(a) The limitation of liability provided in 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.
(b) The provision of supervision on any land managed as a public park by the state or any of its political subdivisions does not create any greater duty of care which may exist and does not create a duty of care or basis of liability for personal injury or for damage to personal property caused by the act or omission of any person responsible for security or supervision of park activities, except as provided in Subparagraph (E)(2)(d) of this Section.
(c) For 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.
(d) The limitation of liability as extended to parks in this Section shall not apply to intentional or grossly negligent acts by an employee of the public entity.
"The purpose of this Act is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes." 1975 La. Acts, No. 615, § 1; Fournerat v. Farm Bureau Ins. Co., 2011-1344 (La. App. 1st Cir. 9/21/12), 104 So.3d 76, 81, writ denied, 2012-2148 (La. 11/21/12), 102 So.3d 59. Louisiana courts recognize that La. R.S. 9:2795 is in derogation of common or natural rights and, therefore, is to be strictly interpreted and must not be extended beyond its obvious meaning. Fournerat, 104 So.3d at 81. Simultaneously, Louisiana courts also consistently recognize that the enactment of and amendments to La. R.S. 9:2795 evidence the Legislature's intent to grant broad immunity from liability. Richard v. Hall, 2003-1488 (La. 4/23/04), 874 So.2d 131, 151.
When examining a law, language, words, and phrases are to be read in their context and are to be accorded their generally prevailing meaning. La. C.C. art. 11; La. R.S. 1:3; Luv N' Care, Ltd. v. Jackel International Limited, 2019-0749 (La. 1/29/20) 347 So.3d 572, 577-78. It is presumed that every word, sentence, or provision was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were employed. As a result, courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause, or word as meaningless and surplusage if a construction giving force to, and preserving, all words can legitimately be found. Luv N' Care, 347 So.3d at 577-78. When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. La. C.C. art. 10.
A statute should be construed in such a way as to reconcile, if possible, apparent inconsistencies so that each part is given effect. Since the meaning is to be determined from a general consideration of the act as a whole, all parts, provisions, or sections must be read together; each must be considered with respect to, or in light of, all the other provisions, and construed in harmony with the whole. Luv N' Care, 347 So.3d at 578-79. The intent as deduced from the whole will prevail over that of a particular part considered separately. Meaning should be given, if possible, to each and every section, and the construction placed on one portion should not be such as to obliterate another; so, in determining the meaning of a word, phrase, or clause, the entire statute is to be considered. Luv N' Care, 347 So.3d at 578-79. A construction should be placed on the provisions in question that is consistent with the express terms of the statutes and with the obvious intent of the Legislature in its enactment of the statute. Richard, 874 So.2d at 151.
DISCUSSION
In support of their motion for summary judgment, BREC and Mr. LeBlanc relied on the affidavit of David Noland, BREC's Senior Risk Manager since 2014. Mr. Noland attested that BREC is a political subdivision of the State of Louisiana, whose purpose is to provide land and facilities to the public for recreational use. In January 2019, BREC acquired Santa Maria, an 18-hole golf course available for public use. Since that time, BREC has solely owned, operated, and maintained Santa Maria. Mr. LeBlanc was at Santa Maria serving as BREC's volunteer golf marshal, and Mr. Lester was there to play golf Mr. Lester offered no evidence to dispute these facts. Thus, BREC made a prima facie showing that it is an "owner" who permitted its "land" to be used for "recreational purposes," and that Mr. Lester was using BREC's land for such a purpose at the time he was injured. La. R.S. 9:2795(A)(1), (2), (3), and (B)(1).
Before the trial court, Mr. Lester argued that immunity was not available because BREC uses Santa Maria as a commercial recreational facility. To support this assertion, Mr. Lester relied on the affidavit of a councilman for the City-Parish of East Baton Rouge. BREC timely objected to this affidavit. La. C.C.P. art. 966(D)(2). The trial court sustained BREC's objection during the hearing on the motion and struck the affidavit. Mr. Lester does not challenge this evidentiary ruling on appeal and has abandoned the argument that BREC's use of Santa Maria does not satisfy La. R.S. 9:2795.
Mr LeBlanc's Entitlement to Immunity Pursuant to La. R.S. 9:2795
Since it is undisputed that BREC solely owns and maintains Santa Maria, Mr. LeBlanc, as mover, bore the burden of proving that he satisfies the statutory definition of "owner" as an "occupant or person in control of the premises." La. R.S. 9:2795(A)(2); see Aucoin, 324 So.3d at 632-33.
There is no assertion that Mr. LeBlanc was a tenant or lessee for purposes of satisfying La. R.S 9:2795(A)(2). On appeal, BREC and Mr. LeBlanc alternatively argue that Mr. LeBlanc was the occupant/person in control of the golf cart, which is a piece of machinery or equipment on the land. This argument lacks merit and ignores the clear language of subparagraph (A)(1), which defines "land" to include "machinery or equipment when attached to the realty." (Emphasis added.)
Louisiana Revised Statutes 9:2795 does not define "control" or provide guidance concerning the meaning of the word as used therein. Thus, we look to other sources for guidance. Pursuant to Black's Law Dictionary, "control," when used as a verb, means to "exercise power or influence over," to "regulate or govern, and to "have a controlling interest in." Black's Law Dictionary (11th ed. 2019). As a noun, "control" is defined as "[t]he direct or indirect power to govern the management and policies of a person or entity, whether through ownership of voting securities, by contract, or otherwise; the power or authority to manage, direct, or oversee." Black's Law Dictionary (11th ed. 2019).
The evidence offered in support of the motion for summary judgment establishes that, as golf marshal, Mr. LeBlanc maintained pace of play, responded to golfers' questions and concerns, verified receipts during check-in, provided course information to golfers, and offered directions or assistance if they were lost. The deponents who testified during BREC's La. C.C.P. art. 1442 deposition explained that, if a dispute arises between golfers, the golf marshals are encouraged "not to get too involved" and to "refer to a manager." According to BREC's representatives, the golf marshal's role is "important to the efficient operation of the course." There is no indication that Mr. LeBlanc, either directly or indirectly, had the power to govern the management or policies of Santa Maria or that he had any authority over the operation of the course. Thus, Mr. LeBlanc failed to make a prima facie showing that he is entitled to immunity as an "occupant or person with control of the premises." La. R.S. 9:2795(A)(2).
We also find that no other provision of La. R.S. 9:2795 purports to extend immunity to the owner's employees or volunteers. Affording immunity to an individual simply because he is a volunteer or employee of the "owner" would extend La. R.S. 9:2795 beyond its obvious meaning. See Fournerat, 104 So.3d at 81. Additionally, we do not find that affording immunity to the owner's employees or volunteers would further the statute's purpose of encouraging landowners to make land available to the public for recreational purposes. See Fournerat, 104 So.3d at 81.
Mr. LeBlanc failed to carry his summary judgment burden of showing that he is entitled to immunity pursuant to La. R.S. 9:2795, and the burden never shifted to Mr. Lester to produce evidence to demonstrate the existence of a genuine issue for trial. See Aucoin, 324 So.3d at 632. Thus, the trial court erred in granting the motion for summary judgment in favor of Mr. LeBlanc.
BREC's Entitlement to Immunity Pursuant to La. R.S. 9:2795
Defect in the Land
Mr. Lester argues that BREC is not entitled to immunity because La. R.S. 9:2795 only applies where the injuries were caused by a defect in the land. According to Mr. Lester, La. R.S. 9:2795(B)(1)(c) "creates the actual immunity" by negating liability for injury caused by a defect in the land, whereas subparagraphs (B)(1)(a) and (b) negate the traditional duties and protections afforded by Louisiana's premises liability law. Mr. Lester argues that a golf cart — "the instrumentality of harm" — does not satisfy the statutory definition of "land." Thus, he contends there is no immunity pursuant to La. R.S. 9:2795(B)(1)(c).
Accepting Mr. Lester's argument would require us to read La. R.S. 9:2795(B)(1)(c) in isolation, disregarding other provisions within the same statute. Since doing this would be contrary to the well-settled rules of statutory interpretation, we must, instead, read La. R.S. 9:2795(B)(1)(c) in light of the other provisions of the statute, particularly subparagraphs (D) and (E)(2)(d).
Pursuant to La. R.S. 9:2795(E)(2)(d), the limitation of liability extended to public parks in "this Section shall not apply to intentional or grossly negligent acts by an employee of the public entity." This language contemplates the limitation of liability when injuries arise out of acts committed by an owner's employee — something other than a defect in the land — that do not rise to the level of intentional or gross negligence. Otherwise, this provision would be rendered meaningless — there would be no need to exclude immunity for an employee's intentional or grossly negligent conduct if other acts of negligence were not included within the statute's limitation of liability.
Mr. Lester argues that the language — "the limitation of liability in this Section" — in La. R.S. 9:2795(E)(2)(d) refers only to subparagraph (E)(2)(b), which provides that the "provision of supervision" on land does not create a greater duty of care. We agree with Mr. Lester's contention that subparagraph (E)(2)(d) is an exception to the limitation provided in subparagraph (E)(2)(b). However, we disagree that La. R.S. 9:2795(E)(2)(d) only applies where subparagraph (E)(2)(b) is at issue.
Mr. Lester argues that La. R.S. 9:2795(E)(2)(b), concerning the provision of supervision on land, does not apply to his vicarious liability cause of action. We agree that this provision is inapplicable to the facts of this case, and our conclusion that BREC is entitled to immunity is not premised on "the provision of supervision" by BREC. La. R.S. 9:2795(E)(2)(b).
Mr. Lester's argument appears to be premised on the incorrect conclusion that "this Section" as used in La. R.S. 9:2795 refers to individual subparagraphs, rather than the statute as a whole. When the entirety of the statute is examined, it is evident that the Legislature used "Subparagraph" or "Subsection" when referring to the statute's subparts. For instance, La. R.S. 9:2795(C) pertinently states, "... the provisions of Subsection B shall be deemed applicable to...." See also La. R.S. 9:2795(B)(2), referring to "the provisions of this Subsection." In contrast, La. R.S. 9:2795(E)(1) and (E)(2)(a) extend the "limitation of liability provided in this Section" (i.e., the statute) to, among other things, land owned by the Department of Wildlife and Fisheries and lands owned or managed as a public park by a political subdivision. Mr. Lester's argument that La. R.S. 9:2795(E)(2)(d) exclusively refers to subparagraph (E)(2)(b) ignores this language in subparagraphs (E)(1) and (2)(a). The statutory references to "this Section" would be meaningless if they did not refer to the statute as a whole.
The plain language of La. R.S. 9:2795(E)(2)(d) does not support the conclusion that this subparagraph must be read exclusively in conjunction with subparagraph (E)(2)(b). Reading all provisions of the statute together, as we must, we find that subparagraph (E)(2)(d) demonstrates that La. R.S. 9:2795 applies to simple negligence committed by an owner's employee or volunteer. See Luv N' Care, 347 So.3d at 577-78. This includes Mr. Lester's vicarious liability cause of action asserted against BREC arising out of Mr. LeBlanc's negligence.
Louisiana Revised Statutes 9:2795(D) also contradicts Mr. Lester's contention regarding the application of La. R.S. 9:2795(B)(l)(c). Louisiana Revised Statutes 9:2795(D) states that nothing in "this Section" shall be construed to relieve any person (a third-party) using the land of another for recreational purposes from any obligation, which he may have in the absence of "this Section," to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care. If La. R.S. 9:2795 only applies to injuries caused by defects in the land, this provision would be superfluous, because a third-party, who neither owns nor has custody of land, generally is not liable for injuries caused by defects in the land. La. C.C. art. 2317.1 ("The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect...."). There would be no reason to exclude immunity for a third-party's use or activities upon land if the statute did not extend immunity to others for their use or activities. For instance, the court in Johnson v. Lloyd's of London, 26,813 (La. App. 2d Cir. 4/5/95), 653 So.2d 226, 229, writ denied, 95-1114 (La. 6/23/95), 656 So.2d 1016, observed that, under La. R.S. 9:2795(D), a person hunting on the land would not be relieved of liability for the negligent shooting of another hunter.
The reference to "this Section" in La. R.S. 9:2795(D) would likewise be meaningless if it did not refer to the statute as a whole.
The following elements must be proven by the plaintiff in a premises liability case: (1) the defendant either owned or had care, custody, or control of the thing in question; (2) the thing was a cause-in-fact of the plaintiff's injuries; (3) the thing presented an unreasonable risk of harm; and (4) the defendant had actual or constructive knowledge of the risk. Pacaccio v. Hoover, 2021-1587 (La. App. 1st Cir. 8/2/22), 348 So.3d 81, 85-87.
Our conclusion that the application of La. R.S. 9:2795 is not limited solely to instances where the injury was caused by a defect in the land is also supported by years of Louisiana jurisprudence applying this immunity statute. As BREC points out, Mr. Lester cites no legal authority to support his interpretation or application of La. R.S. 9:2795. We have found none.
We recognize that, in these cases, it does not appear that the parties argued, as Mr. Lester does, that La. R.S. 9:2795 only applies to injuries caused by a "defect in the land." Nevertheless, we find this precedent overwhelmingly supports our conclusion in this case concerning the scope and application of La. R.S. 9:2795.
Prior to the 1995 amendment, La. R.S. 9:2795(B)(1) pertinently stated that an owner of land who permits any person to use his land for recreational purposes does not thereby (c) "Incur liability for any injury to person or property incurred by such person." This language in subparagraph (B)(1)(c) was replaced by 1995 La. Acts, No. 1092, § 3 with the language that appears in the current version of the statute — "caused by any defect in the land regardless of whether naturally occurring or manmade."
Both before and after the 1995 amendment, Louisiana courts, including this court and the Louisiana Supreme Court, have applied La. R.S. 9:2795 to shield defendants from liability for injuries not resulting from or in any way arising out of a "defect in the land." See Johnson, 653 So.2d at 231, finding that La. R.S. 9:2795 applied to the landowner's simple negligence for injuries sustained by the plaintiff after he fell out of a deer stand. The plaintiff's claims against the landowner did not concern alleged defects in the land; instead, he maintained that the defendant failed to look for him when there was reason to believe he was on the premises and failed to follow its own procedures designed to prevent such occurrences. Johnson, 653 So.2d at 227.
Richard v. Hall, 2002-0366 (La. App. 1st Cir. 2/14/03), 843 So.2d 433, writ granted, 2003-1488 (La. 10/3/03), 855 So.2d 291, and affirmed, 2003-1488 (La. 4/23/04), 874 So.2d 131, also concerned a hunting accident. There, a hunter was accidentally, fatally shot in January 2000 while hunting on property leased by Screening Systems International, LLC, Louisiana Division (SSI). On review, the Louisiana Supreme Court affirmed this court's holding that La. R.S. 9:2795 applied and provided immunity from liability to SSI. Richard, 874 So.2d at 143. See also Moore v. Rice-Land Lumber Co., 2014-500 (La. App. 3d Cir. 11/5/14), 150 So.3d 657, writ denied, 2014-2559 (La. 2/27/15), 160 So.3d 583, and Cooper v. Cooper, 34,717 (La. App. 2d Cir. 5/9/01), 786 So.2d 240, writ denied, 2001-1681 (La. 9/21/01), 797 So.2d 675.
In DeLafosse v. Village of Pine Prairie, 2008-0693 (La. App. 3d Cir. 12/10/08), 998 So.2d 1248, 1250, writ denied, 2009-0074 (La. 2/4/09), 999 So.2d 766, the plaintiff was hit in the head with a baseball thrown over a fence. The defendant landowner was entitled to immunity per La. R.S. 9:2795. Notably, the court concluded that the defendant made a prima facie showing that it was entitled to immunity under La. R.S. 9:2795 after establishing only that it operated the ballpark for recreational purposes. The court did not require a showing that the plaintiff's injuries were purportedly related to a defect in the land. DeLafosse, 998 So.2d at 1252, citing Webb v. Parish of St. Tammany, 2006-0849 (La. App. 1st Cir. 2/9/07), 959 So.2d 921, 925, writ denied, 2007-0521 (La. 4/27/07), 955 So.2d 695, wherein this court found that the defendant, the party moving for summary judgment, sustained its initial burden of proof and established a prima facie case that it was entitled to immunity pursuant to La. R.S. 9:2795 based on the undisputed evidence that the defendant operated the park where the plaintiff was injured, the park was available to the public for recreational purposes, and the plaintiff had gone to the park on the day of his accident to participate in recreational activities.
Finally, in Simoneaux v. Lafayette Consolidated Government, 2012-774, 2012-969 (La. App. 3d Cir. 5/1/13), 2013 WL 1858612 (unpublished), the landowner defendants were found to be immune pursuant to La. R.S. 9:2795 where the plaintiff was injured after being struck by an errant ball intended to hit a dunk tank. The court recognized that La. R.S. 9:2795 provides a limitation of liability for landowners, including the state and its political subdivisions, of property used for recreational purposes. Simoneaux, 2013 WL 1858612 at *2.
We also find it instructive that, despite over twenty years of jurisprudence applying La. R.S. 9:2795 to cases where defects in the land were not at issue, the Legislature has not amended the statute to clarify that judicial interpretation of La. R.S. 9:2795 is overly broad or contrary to its intent. See Davidson v. State, 2019-1180 (La. App. 1st Cir. 7/2/20), 308 So.3d 325, 329, writ granted, 2020-00976 (La. 12/8/20), 305 So.3d 863, and affirmed, 2020-00976 (La. 5/13/21), 320 So.3d 1021 ("legislative language is interpreted by the courts on the assumption that the legislature was aware of existing statutes, rules of construction, and judicial decisions interpreting those statutes").
Finally, limiting the application of La. R.S. 9:2795 to instances where the injury was caused by a defect in the land, as Mr. Lester suggests, would not further the legislative purpose of encouraging owners of land to make their property available for public use. As the cases discussed above make clear, there are a myriad of ways someone may be injured while using land for recreational purposes. Our conclusion that La. R.S. 9:2795 is not limited to injury-causing defects in the land furthers the Legislature's intent to grant broad immunity from liability pursuant to La. R.S. 9:2795. See Richard, 874 So.2d at 151.
For these reasons, we reject Mr. Lester's argument that La. R.S. 9:2795 only applies where the injury was caused by a defect in the land.
Willful and Malicious Failure to Warn Pursuant to La. R.S. 9:2795(B)(1)
Next, Mr. Lester asserts that Mr. LeBlanc "willfully" "chose not to yell a warning" immediately before the accident occurred. Pursuant to La. R.S. 9:2795(B)(1), the limitation of liability does not apply to willful or malicious failure to warn of a dangerous condition or activity. Mr. Lester argues that a genuine issue of material fact remains as to whether Mr. LeBlanc's failure to warn of an impending collision was made with "conscious indifference to the consequences." Mr. Lester reasons that Mr. LeBlanc was "the only person who could will himself to give a warning" and, thus, his failure to warn was "willful." (Emphasis original.) We find no merit in this argument.
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 the consequences thereof. Souza v. St. Tammany Parish, 2011-2198 (La. App. 1st Cir. 6/8/12), 93 So.3d 745, 750. In the context of a tort, "indifference" (including "conscious indifference") means conscious disregard of the harm that one's actions could do to the interests or rights of another. Black's Law Dictionary (11th ed. 2019). A voluntary act becomes willful, in law, only when it involves conscious wrong or evil purpose on the part of the actor, or at least inexcusable carelessness, whether the act is right or wrong. Black's Law Dictionary (11th ed. 2019). "Malicious" means "substantially certain to cause injury" or "[w]ithout just cause or excuse." Black's Law Dictionary (11th ed. 2019).
While discussing the incident during his deposition, Mr. LeBlanc was asked, "Did you yell or anything?" Mr. LeBlanc responded, "Not to my knowledge." This is the sole evidence upon which Mr. Lester relies to support his contention that Mr. LeBlanc's failure to warn was willful or malicious. However, Mr. LeBlanc explained that the accident "happened so fast" and that, when he saw Mr. Lester, that's "when we hit." This evidence does not create a genuine issue of material fact concerning whether Mr. LeBlanc willfully or maliciously failed to warn Mr. Lester of the impending collision. Willfulness cannot exist without purpose or design, and a willful injury will not be inferred when the result may be reasonably attributed to negligence or inattention. Rushing v. State Through Louisiana Health & Human Resources Administration, 381 So.2d 1250, 1252 (La. App. 1st Cir. 1980), citing State v. Vinzant, 200 La. 301, 7 So.2d 917 (1942).
Once BREC established that it was entitled to immunity under La. R.S. 9:2795, the burden of establishing a malicious or willful failure to warn of a dangerous condition shifted to Mr. Lester. See Souza, 93 So.3d at 750. We find Mr. Lester failed to satisfy this burden or demonstrate the existence of a genuine issue of material fact sufficient to defeat BREC's motion. The trial court properly granted the motion for summary judgment in favor of BREC.
CONCLUSION
For the above reasons, we affirm the portion of the March 18, 2022 judgment that granted the motion for summary judgment in favor of Recreation and Park Commission for the Parish of East Baton Rouge (BREC) and against Louis Lester. We reverse the portion of the March 18, 2022 judgment that granted the motion for summary judgment in favor of Leslie LeBlanc and against Louis Lester. We remand for further proceedings.