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Lewis v. City of Bastrop

Court of Appeals of Louisiana, Second Circuit

September 25, 2019

BRENDA LEWIS Plaintiff-Appellee
v.
CITY OF BASTROP Defendant-Appellant

          Appealed from the Fourth Judicial District Court for the Parish of Morehouse, Louisiana Trial Court No. 2014-085 Honorable Robert C. Johnson, Judge.

          HUDSON, POTTS & BERNSTEIN, L.L.P. By: Johnny R. Huckabay, II Robert M. Baldwin L. Casey Auttonberry Counsel for Appellant

          HALES & STRICKLAND By: Myrt T. Hales, Jr. Joshua L. Strickland Counsel for Appellee

          Before MOORE, STEPHENS, and THOMPSON, JJ.

          THOMPSON, J.

         This matter arises from an incident in which Plaintiff, Brenda Lewis (hereinafter "Plaintiff"), a spectator attending the t-ball game of her grandson at the City of Bastrop's Carter Park recreational complex, tripped on an above ground support brace of a fence at one of the playing fields and was injured. Defendant, City of Bastrop (hereinafter "Defendant"), appeals the trial court's judgment in favor of Plaintiff, asserting in part that Defendant is entitled to immunity under La. R.S. 9:2795, the Recreational Use Immunity Statute. For the reasons set forth below, we reverse.

         FACTS AND PROCEDURAL HISTORY

         On April 29, 2013, Plaintiff was injured while attending her grandson's t-ball game at Carter Park in Bastrop, Louisiana. Plaintiff arrived at Carter Park in the late afternoon that day, around 5:30-6:00 p.m. under good weather conditions. She was walking with her daughter-in-law, Ms. Aubrey Allen (hereinafter "Ms. Allen"), as they approached the field where Plaintiff's grandson would be playing. Plaintiff walked alongside a significant distance of fencing on the way to her grandson's game. Plaintiff admitted at trial she was inattentive while walking, talking with Ms. Allen, and looking for her grandson. Plaintiff testified she tripped and fell, injuring her right foot. After hitting the ground and injuring her foot, she looked back to see what caused her to trip and noticed the above ground pipe stander and securing rebar partially driven into the ground. Plaintiff suffered a fractured foot that required surgery.

         Joint Exhibit 3 from the trial appears below, which depicts the pipe stander and rebar on which Plaintiff allegedly tripped.

         (Image Omitted)

         On February 26, 2014, Plaintiff filed suit in the 4th Judicial District Court requesting damages from Defendant. As for her damages Plaintiff maintained that, in addition to her medical expenses, she is unable to participate in the activities she enjoyed before the accident and experiences discomfort due to the multiple screws and swelling in her foot.

         Carter Park is a recreational facility that is owned, operated, and managed by Defendant. The city employees perform preparation work at Carter Park for visitors they know will utilize the Park for a variety of recreational activities, including participants and spectators of softball and t-ball games. The city employees are employed by Defendant. Preparation work performed at Carter Park by the city employees includes cleaning and mowing the grounds for various activities, and moving and securing the portable fencing that are necessary for the scheduled activities.

         The fence is composed of portable/moveable fence panels that can be positioned into different configurations to accommodate different needs for various sporting events, such as baseball, softball, t-ball, and football games. The ten-foot moveable fence panels each have stabilizing "L" shaped pipe standers that are fastened to the back of the fence which allow the fence panel to stand erect. The "L" shaped pipe stander is above ground and each is anchored by a rebar stake inserted through a pre-drilled hole and driven into the ground. A sledgehammer or piece of equipment is used to drive the rebar stakes through the pipe stander and into the ground. The fence at Carter Park is comprised of fence panels connected by pipe standers and securing rebar at ten-foot intervals.

         A motion for summary judgment was filed by Defendant on June 29, 2015. In Defendant's motion, Defendant argued recreational immunity pursuant to La. R.S. 9:2795 and that, in the alternative, it was not liable under ordinary negligence principles. See La. R.S. 9:2800(C). On September 10, 2015, Plaintiff filed an opposition to the motion for summary judgment claiming willful or malicious failure to warn and gross negligence. La. R.S. 9:2795(B)(1), (E)(2)(d). The motion was heard on December 22, 2015, and the trial court denied Defendant's motion for summary judgment without issuing reasons. The matter then proceeded to trial.

         Bench Trial

         The bench trial of this matter was held on October 10-13, 2016. The trial court heard testimony from Plaintiff, Plaintiff's daughter-in-law (Ms. Allen), Plaintiff's husband, the Mayor of Bastrop, Plaintiff's safety expert, and various city employees who testified they worked with the fence panels at Carter Park.

         Plaintiff testified that immediately before tripping and falling she was not watching where she was going because she was looking for her grandson. Plaintiff walked into the area immediately adjacent to the fence panel where the pipe stander and securing rebar was located and she tripped and fell injuring herself. She commented that if she had been paying attention she would not have tripped. Plaintiff also testified that there were no warning signs or anything keeping visitors from walking in the area. Plaintiff claimed that the pathway was the only entrance to get to the t-ball fields.

         Dr. Timothy Spires of Monroe, Louisiana, performed surgery on Plaintiff's foot and to this day Plaintiff maintains that her foot constantly hurts, swells, and limits her activities. Plaintiff's husband, Mr. George Lewis, who was not present during the accident, testified to Plaintiff's discomfort and inability to enjoy certain activities after her fall.

         Also testifying at trial was the Plaintiff's daughter-in-law, Ms. Allen, who accompanied Plaintiff to Carter Park that day to watch her son, Plaintiff's grandson, play t-ball. Ms. Allen testified she was not certain if, at the time of Plaintiff's fall, Plaintiff was talking with her or looking for her grandson (child of Ms. Allen). Ms. Allen provided testimony that she had seen someone else trip over a different rebar stake on a different day, but provided no other evidence to support her claim.

         Testimony from city employees at trial established the moveable fence panels were built in 1976 or 1977, and had been configured at Carter Park weeks before the date of the accident in preparation for t-ball and softball seasons. The Mayor of Bastrop, Mr. Arthur Jones, who worked in the parks and recreation division for the City of Bastrop for decades prior to his election as Mayor, testified that there had never been an accident at Carter Park in the 40 years it has been open.

         The exact condition of the specific pipe stander and rebar on which Plaintiff tripped was disputed at trial. Plaintiff asserted that the rebar extended above the pipe stander created a situation which would more likely cause someone to trip and fall. The trial court was faced with making credibility determinations regarding the pipe on which Plaintiff tripped as the testimony of city employees and that of Plaintiff's daughter-in-law, Ms. Allen, were irreconcilable.

         The city employees who testified at trial described the accident site as though it were an anomaly to other pipe standers for the remainder of the fence. Each city employee testified that the rebar stake in the fence was not sticking up when they left Carter Park and that, if they had known it was sticking up, they would have driven it into the ground. One of the employees, Mr. Anthony Robinson, confirmed on the day of the accident he inspected Carter Park before the recreational activities began. The employees' supervisor, Mr. Samuel Robinson, testified that he checked the work of the employees. He also testified that the place of the accident was an area behind the field that people were not supposed to walk. There was testimony the city employees used tape to direct people away from the area. Mr. Samuel Robinson noted that the pipe stander works as a lever when someone leans against the fence which can cause the end of the horizontal portion of the pipe stander to come up, pulling the rebar stake out of the ground. Whether or not someone leaned against the fence is unknown and is in dispute between the parties.

         Ms. Allen, however, testified this particular pipe stander and stabilizing rebar was not unique, and that "almost every piece of pipe there had rebar sticking in it sticking up." Regarding Plaintiff's fall, Ms. Allen testified "[a]ll I could think about was seeing that other piece of pipe, you know, because like ...


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