A Louisiana state appeals court has affirmed a trial court’s ruling, dismissing the claim brought by the mother, whose daughter was struck by a baseball as she entered the stands. In so ruling, majority of the panel concluded that the mother bore some of the responsibility “to warn” that there was a danger and that the municipality that operated the facility was not grossly negligent.
The incident in question occurred on February 26, 2004, when plaintiff Tonya Ardoin DeLafosse was at work, while Carrie Aucoin was babysitting Ms. DeLafosse’s two daughters, Kasie and Kayla Crawford. At the time, Kasie was six years old, and Kayla was 11.
“After receiving permission from Ms. DeLafosse, Carrie took the two children to a high school baseball game at Pine Prairie’s baseball field. She paid the admission fee at the concession stand and led the two girls toward the bleachers. To reach the bleachers from the concession stand, the three individuals had to traverse a long grassy area between two fences. On one side, a four-foot high fence separated them from the first base foul line where the visiting team was warming up. As they traversed the area, a baseball came over the fence and struck Kasie in the head. Kasie sustained severe physical injuries from the impact and was immediately transported to a local hospital.
Ms. DeLafosse brought suit against Pine Prairie, the Evangeline Parish School Board, and the Livingston Parish School Board in an effort to recover the damages she and her daughter suffered. Pine Prairie responded to the petition for damages by filing a motion for summary judgment based on the recreational immunity provisions of La.R.S. 9:2795. After a February 11, 2008 hearing, the trial court granted the motion, dismissing Ms. DeLafosse’s suit.”
The plaintiff appealed.
In challenging the ruling, DeLafosse claimed, among other things, that Pine Prairie willfully and maliciously failed in its obligation, under La.R.S. 9:2795(B)(1), to warn Kasie of the unreasonably dangerous entrance to the ballpark bleachers.
In fact, Louisiana Revised Statute 9:2795(B)(1) does impose “a duty to warn of a dangerous condition upon the owner of land open to any person for recreational use. The degree of care which satisfies this duty varies with the danger which will be incurred by negligence and must be commensurate with the danger involved. In regard to this duty as imposed by the recreational use statute, 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. Lambert v. State, 40,170, pp. 11-12 (La.App. 2 Cir. 9/30/05), 912 So.2d 426, 433-434.
“In this matter, Pine Prairie established that it operated the ball park for recreational purposes. Thus, it established a prima facie case that it was entitled to immunity under La.R.S. 9:2795. See Webb v. Parish of St. Tammany, 06-849 (La.App. 1 Cir. 2/9/07), 959 So.2d 921, writ denied, 07-521 (La. 4/27/07), 955 So.2d 695. The burden of establishing a malicious or willful failure to warn of a dangerous condition shifted to Ms. DeLafosse, who presented no evidence in this regard. Thus, we find that she failed to meet her burden on this element of proof so as to preclude summary judgment. See LaCroix v. State, through Dep’t of Transp., 477 So.2d 1246 (La.App. 3 Cir.), writ denied, 478 So.2d 1237 (La. 1985).
“Ms. DeLafosse next argues that the exception in La.R.S. 9:2795(E)(2)(d), which precludes immunity from ‘intentional or grossly negligent acts by an employee of the public entity,’ applies because Pine Prairie’s employees were grossly negligent in the placement and configuration of the stands at the ballpark and in maintaining only a four-foot fence to protect those patrons who had to traverse the first base line to gain access to the bleachers. She argues that Pine Prairie knew or should have known that a fence of that height would not contain flying balls, or in the alternative, that this created a genuine issue of material fact.
“Gross negligence has been defined by our supreme court as ‘the want of even slight care and diligence. It is the want of that diligence which even careless men are accustomed to exercise.’ Lenard v. Dilley, 01-1522, pp. 6-7 (La. 1/15/02), 805 So.2d 175, 180, quoting State v. Vinzant, 200 La. 301, 7 So.2d 917 (1942). Again, after the burden of proof shifted to her, Ms. DeLafosse did not present any evidence that would establish that Pine Prairie was grossly negligent in its configuration of the stands or in its maintenance of the four-foot fence. Therefore, she did not establish that she would be able to meet her burden of proof at trial.
“Ms. DeLafosse also argues that under the exception in La.R.S. 9:2795(E)(2)(c), the limitation of liability does not apply to Pine Prairie. That subsection provides that the limitation of liability afforded by the statute ‘does not apply to playground equipment or stands which are defective.”
“Specifically, she asserts that the stands were placed by Pine Prairie in such a manner as to create an unreasonably dangerous entrance to the ballpark stands. However, Ms. DeLafosse does not allege that the stands themselves were defective, only that they were improperly placed in the ballpark.
“Thus, this exception to the recreational use statute’s limitation on liability does not apply.
Finally, Ms. DeLafosse asserts that the statute does not apply because Kasie was not attending the baseball game for a recreational purpose.
“This argument is two-fold. First, she contends that because Kasie was a spectator, not an active participant, the statute does not apply to her. However, this court has previously rejected that argument in 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. Further, we note that the legislature’s action in 2001, when it amended subsection [Pg 7] E(2)(b) to add ‘or stands,’ reinforced the interpretation that the statute applies to spectators as well as active participants, because only spectators regularly use the stands. Second, the plaintiffs argue that Kasie attended the ball game only because she was obligated to accompany her babysitter, not for a recreational purpose, citing to Anderson v. Tenneco Oil Company, 01-295, 01-296 (La.App. 4 Cir. 5/22/02), 826 So.2d 1143, writ denied, 02-2035 (La. 11/1/02), 828 So.2d 585, abrogated on other grounds, Giorgio v. Alliance Operating Corp., 05-2 (La. 1/1/06), 921 So.2d 58. We find Anderson distinguishable from the case before us. The ruling in that case stated only that commercial fisherman engaging in a boating activity for commercial purposes were not engaged in a recreational activity within the meaning of the statute. Ms. DeLafosse would have us extend this rule to hold that one who attended a recreational activity involuntarily, or without a desire to benefit from the recreational activity, is not governed by the liability limitation statute. We decline to do so. Kasie was on the premises in order to attend a recreational activity, a ball game; the reasons why she was attending the ball game do not affect whether La.R.S. 9:2795 applies to her.”
Tonya Ardoin Delafosse v. Village of Pine Prairie; Ct. App. La., 3d Cir.; 08-0693, 08-0693 (La.App. 3 Cir. 12/11/08); 2008 La. App. LEXIS 1678; 12/11/08
Attorneys of Record: (for plaintiff/appellant) Lynette Young Feucht, Attorney at Law, Eunice, LA,: 9for defendant) Karen Day White, Louisiana Municipal Association, Baton Rouge,
