Accident, How to Be a Good Plaintiff
Recreational Immunity and Your Injury
LOUISIANA — A high-school student attends a school affiliated ROTC camping trip at a private facility, where he drowns in the campground’s lake. This scenario is one of many variations on a parent’s worst fear, especially as the young man was with trusted authorities in whom most parents would feel their trust was well placed. While litigation is never the first thought in such disastrous circumstances, eventually the grieving parents filed an action against multiple involved parties, including the school district and property owners, see Robinson v. Jefferson Par. Sch. Bd., 9 So. 3d 1035, 1044–45 (La. App. 5th Cir. 2009), writ denied, 17 So. 3d 975 (La. 2009). The immediate and natural thought would be that some responsible person was negligent, thus causing or contributing to the student’s death. It would seem logical to a lay person that the school and/or the campsite would be responsible for any such negligence. However, in this case and other cases with certain facts in common, an accident victim or their surviving next-of-kin would not be able to recover any damages due to Louisiana’s recreational immunity statutes.
Recreational immunity is granted to certain landowners under LSA-R.S. 9:2791 and R.S. 9:2795, meaning that persons injured while involved in recreational activities on the landowner’s property might not be able to recover damages for their injuries. Recreational activities often come with high risk of injury, and include but are not not limited to the following: hunting, fishing, trapping, swimming, boating, camping, picnicking and hiking. The intention was to persuade owners of vast tracks of rural property to allow the public to recreate on their land, by preventing the landowner from being held liable if, for example, a hunter injured himself by falling into a hole left behind by an uprooted and fallen tree. Clearly, a landowner could not be expected to spend innumerable hours patrolling his property for naturally occurring hazards threatening individuals who may cross that property, with or without the owner’s knowledge. When seen in this light, recreational immunity statutes are a sensible compromise between protecting property owners, and promoting public recreation (which for the good of society as a whole). In the past, in order to be immune under the statute, a three prong test would have to be met, as follows: 1) Is the area where the injury occurred undeveloped, non-residential, and rural or semi-rural? 2) Was the injury the result of activities that can be pursued in the “true outdoors”? 3) Was the injury-causing instrumentality of the type that would normally be encounters in the “true outdoors”?
However, in 1985, the Legislature amended La. R.S. 9:2795(B)(1)(c) to add “caused by any defect in the land regardless of whether naturally occurring or manmade.” And in 2001, La. R.S. 9:2795 was again amended to include urban land as well as rural, which some have argued defeats the entire original purpose of exposing the public to natural wilderness. As a result of this, we see defendants arguing for immunity when patrons injure themselves on dilapidated man-made structures in public city parks, or other such fact patterns wherein immunity would never have been previously considered.
Plaintiffs should know, however, that there are still exceptions to recreational immunity which would allow recovery for damages in such an accident. If you have been injured in any recreational activity, it’s important to contact an experienced attorney as soon as possible, to help you understand how recreational immunity statutes may alter your rights. The de Boisblanc Law Firm offers free consultations for accident victims, including victims of accidents which may involve recreational immunity statutes. Call today to find the answers you need!
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