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Glorioso v. The City of Kenner

Court of Appeals of Louisiana, Fifth Circuit

December 18, 2019

JOSEPH GLORIOSO ON BEHALF OF HIS MINOR DAUGHTER, MOLLY GLORIOSO
v.
THE CITY OF KENNER

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 786-435, DIVISION "J" HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, JOSEPH GLORIOSO ON BEHALF OF HIS MINOR DAUGHTER, MOLLY GLORIOSO Edward P. Gothard, Harold L. Ehrenberg

          COUNSEL FOR DEFENDANT/APPELLEE, THE CITY OF KENNER C. A. Fleming, III

          Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and John J. Molaison, Jr.

          ROBERT A. CHAISSON, JUDGE.

         In this case arising from an injury to a minor child while attending a gymnastics camp in a facility owned by the City of Kenner ("Kenner"), Joseph Glorioso, on behalf of his minor daughter, appeals an April 3, 2019 judgment of the trial court that granted Kenner's motion for summary judgment and dismissed the lawsuit with prejudice. For the following reasons, we vacate the judgment of the trial court.

         FACTS AND PROCEDURAL HISTORY

         On August 8, 2017, Molly Glorioso, then age five, was attending a gymnastics class at the Barbre Gym located at 1610 Reverend Wilson Drive in Kenner. This gym is owned by Kenner and operated by its Parks and Recreation Department. During class, Molly slid off a stage and cut her right thigh and buttock on a broken metal electrical box located on the front of the stage. On August 7, 2018, Mr. Glorioso filed a petition for damages on his daughter's behalf under various theories of negligence and premises liability. In its answer filed August 27, 2018, Kenner denied the allegations and raised various affirmative defenses.

         On December 18, 2018, Kenner filed a motion for summary judgment in which it argued that La. R.S. 9:2795, the Recreational Use Statute, provides blanket tort immunity barring Mr. Glorioso's claims of negligence and injury. In a judgment on March 12, 2019, the trial court denied this motion for summary judgment. The City re-urged its motion, and after rehearing, the trial court, on April 3, 2019, granted the motion for summary judgment and dismissed Mr. Glorioso's claims. This timely appeal follows.

         DISCUSSION

         On appeal, Mr. Glorioso argues that the trial court legally erred in applying La. R.S. 9:2795 to the facts of this case. In particular, Mr. Glorioso argues that the trial court incorrectly extended the language of the statute to add gymnastics as a "recreational purpose," and also incorrectly extended the definition of land to include any building, whether or not "attached to the realty." Kenner argues that urban land and buildings, including Barbre Gym, are included under the statute, and that the gym is used for recreational purposes under the "unlimited omnibus clause," and therefore the immunity act applies and Kenner is not liable for Molly's injuries.

         Appellate courts review summary judgments de novo using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. In re Succession of O'Krepki, 16-50 (La.App. 5 Cir. 5/26/16), 193 So.3d 574, 577. A motion for summary judgment should be granted if, after an adequate opportunity for discovery, 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)(4).

         At issue in this appeal is the correct interpretation of La. R.S. 9:2795. The starting point in the interpretation of any statute is the language of the statute itself as what a legislature says in the text of a statute is considered the best evidence of its intent and will. Mayeux v. Charlet, ...


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