STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2023 CA 1052

GERARD LACASSIN, INDIVIDUALLY AND ON BEHALF OF LEIGHTON LACASSIN

VERSUS

STATE OF LOUISIANA, DEPARTMENT OF WILDLIFE AND FISHERIES

JUN O4 2024 Judgment Rendered: ______ _

Appealed from the 18th Judicial District Court In and for the Parish of Pointe Coupee State of Louisiana Docket No. 48629

The Honorable Elizabeth A. Engolio, Judge Presiding

Blaine J. Barrilleaux Counsel for Plaintiffs/Appellants, Allison Morrow Weaver Gerard Lacassin and Leighton Brandon 0. Wallace Lacassin Lafayette, Louisiana

Liz Murrill Counsel for Defendant/Appellee, Attorney General State of Louisiana, through the Christopher W. Stidham Louisiana Department of Wildlife Special Assistant Attorney General and Fisheries Breann Crane Baton Rouge, Louisiana

BEFORE: McCLENDON, HESTER, AND MILLER, JJ.

t1'-AdhA~Qri, 5. e,ont.,/ J for fl,e, ({(( J()l)J a5>, J~rJ 1~ MILLER,J.

Gerard Lacassin and Leighton Lacassin appeal a summary judgment

dismissing their claims against the State of Louisiana, Department of Wildlife and

Fisheries, without prejudice. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

On October 7, 201 7, Gerard Lacassin and Leighton Lacassin (" Lacassins"),

along with two other people, went to Sherburne Wildlife Management Area

Sherburne") for a hunting trip. Gerard hunted there between 15 and 25 times

throughout his life. While driving to the location off of Muddy Road where they

would hunt, Gerard drove his vehicle into a sinkhole, which was caused by a

collapsed culvert.

Thereafter, on July 16, 2018, Gerard filed a petition individually and on

behalf of his minor child, Leighton, against the State of Louisiana, Department of

Wildlife and Fisheries (" LDWF"). The petition contained allegations that Gerard

and Leighton suffered personal, psychological, and emotional injuries as a result of

the accident. He further alleged that LDWF's negligence was the proximate cause

of his and Leighton's injuries. LDWF filed its answer on August 27, 2018.

Subsequently, on February 28, 2022, Gerard and Leighton filed an amended

petition, since Leighton reached the age of majority.

On May 1, 2023, LDWF filed a motion for summary judgment, which was

set to be heard on June 2, 2023. LDWF alleged there was no genuine issue of

material fact and it was entitled to judgment as a matter of law. First, LDWF

contended it had no duty to warn the Lacassins of the presence of the sinkhole

because there was no reasonable expectation that a motorist would attempt to park

in a clearing that was maintained for pedestrians, and second, the duty to warn

under La. R.S. 9:2795( B)(l) does not extend to potentially dangerous conditions

which should have been observed by an individual in the exercise of reasonable

care or which are as obvious to a property owner as to a visitor. In support of its

motion for summary judgment, LDWF attached the affidavit of Anthony Vidrine;

excerpts of the deposition of Errol Theriot; excerpts of the deposition of Gerard

Lacassin; and the affidavit ofEric Burson.

On May 18, 2023, the Lacassins filed a memorandum in opposition to

LDWF's motion for summary judgment. They contended adequate discovery had

not been conducted and LDWF's motion should be denied as premature. They

further alleged there are genuine issues of material fact - LDWF owed a duty to

the Lacassins because it was aware that hunters would traverse the area in their

vehicles based on it commonly being used as a parking lot, and the sinkhole at

issue was not open and obvious to all that encountered it. In support of its

opposition, the Lacassins attached excerpts of the deposition of Errol Theriot;

excerpts of the deposition of Gerard Lacassin; the affidavit of Adam Breaux; the

affidavit of Toby Mire; and the affidavit of Mathew Tate.

On May 25, 2023, LDWF filed a reply memorandum. LDWF contended the

Lacassins had adequate time for discovery. Further, LDWF objected to the

affidavits of Adam Breaux, Toby Mire, and Mathew Tate, which were attached in

support of the Lacassins' memorandum in opposition to LDWF's motion for

summary judgment. LDWF argued that those witnesses were not listed on the

Lacassins' witness list nor identified as witnesses in the Lacassins' responses to

discovery. LDWF also contended the affidavits were vague and ambiguous and

contained inadmissible hearsay. LDWF attached LDWF's second supplemental

response to interrogatories and request for production of documents; LDWF's

LDWF notes that, in this motion for summary judgment, it did not raise the issue of whether there was a willful or malicious failure to warn against a dangerous condition under La. R.S. 9:2795(8)(1). That issue was before the court in LDWF's prior motion for summary judgment filed on March 28, 2019. The trial court stated that whether there was a willful and malicious failure to warn against a dangerous condition was " an issue that's to be left to the trier of fact" and signed a judgment denying LDWF' s prior motion for summary judgment on May 3, 2019.

opposition memorandum to a prior motion for summary judgment; an order signed

April 25, 2022; emails exchanged between counsel regarding scheduling; LDWF' s

supplemental responses to initial interrogatories; the Lacassins' witness list; and an

order signed July 30, 2021. See La. C.C.P. art. 966( 8)(3). However, we note that

under La. C.C.P. art. 966(B)(3), no additional documents may be filed with the

reply memorandum. Therefore, the documents LDWF attached to its reply

memorandum are not to be considered. See Jeandron v. Cenac, 2022- 1158 ( La.

App.1 st Cir. 4/14/23), 365 So. 3d 851,859 n.7.

The Lacassins filed a motion to continue, and the hearing on the motion was

set for June 2, 2023, the same date as the hearing on the motion for summary

judgment. At the hearing, the Lacassins argued they needed to take the deposition

of Eric Burson, an accident reconstruction specialist, to properly oppose the motion

for summary judgment. LDWF then stated that it would agree to waive the briefing

deadlines under La. C.C.P. art. 966 so the Lacassins could depose Mr. Burson, and

the parties agreed that each side would file a supplemental memorandum after the

deposition was taken. The hearing on the motion for summary judgment was reset for June 27, 2023.

The Lacassins filed a supplemental memorandum with attachments in

opposition to the motion for summary judgment. The Lacassins maintained there

were genuine issues of material fact and LDWF breached the duty it owed to them.

In support of their supplemental memorandum, the Lacassins attached excerpts of

the deposition of Errol Theriot; excerpts of the deposition of Gerard Lacassin; the

affidavit of Adam Breaux; the affidavit of Toby Mire; the affidavit of Mathew

Tate; excerpts of the deposition of Kyle Ford; excerpts of the deposition of Devin

We note that the filing deadlines are reset any time a trial court grants a motion to continue a hearing on a motion for summary judgment. See Reed v. Restorative Horne Health Care, LLC, 2019-01974 (La. 2/26/20), 289 So. 3d 1028 ( per curiarn). However, at the hearing on the motion to continue, the parties agreed to extend the filing deadlines with the trial court's approval, which is permitted under La. C.C.P. art. 966(B).

Dugas; excerpts of the deposition of Eric Burson; and a Notice of Rendition of

Judgment and Judgment dated May 3, 2019. Thereafter, LDWF filed a

supplemental memorandum in reply to the Lacassins' supplemental opposition to

LDWF's motion for summary judgment. LDWF did not object to any of the

additional documents attached to the Lacassins' supplemental memorandum.

Considering the additional attachments filed ( excluding the attachments to

LDWF's reply memorandum), the additional memoranda filed, and the general

disregard for the guidelines of La. C.C.P. art. 966, we are left with a hodgepodge

of memoranda and exhibits which complicate our analysis. However, since the

parties agreed to reset the hearing and have not maintained any objection to the

exhibits, we must consider that which is not objected to. See La. C.C.P. art.

966( D)(2).

On June 21, 2023, the trial court signed the " Judgment on Motion for

Summary Judgment and Reasons." The trial court indicated that there was no

genuine issue of material fact. Further, the trial court stated that LDWF did not

owe a duty to warn the Lacassins of a dangerous condition located in an area not

intended for driving or parking and that the condition was open and obvious to the

Lacassins. Thus, the trial court granted LDWF's motion for summary judgment

and dismissed the matter without prejudice. Thereafter, on June 23, 2023, the trial

court issued a supplemental judgment on LDWF's motion for summary judgment,

which supplemented the June 21, 2023 judgment. The supplemental judgment

overruled LDWF's objection to the admissibility of the affidavits of Adam Breaux, Toby Mire, and Mathew Tate.

The Lacassins appealed, contending the trial court erred in granting LDWF's

motion for summary judgment. Specifically, the Lacassins assert the trial court

erred in finding the Lacassins drove into an area where LDWF had no reasonable

LDWF did not appeal the trial court's ruling pertaining to its objections to the affidavits.

expectation a vehicle would drive and LDWF had no duty to warn the Lacassins of

the sinkhole; the trial court erred in finding that the sinkhole was open and

obvious; and the trial court violated La. C.C.P. art. 966 by weighing the evidence,

making credibility determinations, and not resolving all doubts in the Lacassins'

favor.

SUMMARY JUDGMENT4

An appellate court reviews the grant or denial of summary judgment de nova

under the same criteria governing the trial court's determination of whether

summary judgment is appropriate. MN Resources LLC v. Louisiana Hardwood

Products LLC, 2016-0758 ( La. App. pt Cir. 7/ 26/17), 225 So. 3d 1104, 1109, writ

denied, 2017-1748 ( La. 12/5/17), 231 So. 3d 624. Because this court reviews

summary judgments de nova, we afford no deference to the trial court's underlying

reasoning for its judgment. John River Cartage, Inc. v. Louisiana Generating, LLC,

2020- 0162 ( La. App. 1st Cir. 3/4/20), 300 So. 3d 437,453 n.12. On de nova review,

we also afford no deference to the legal standard or analysis applied by the trial

court. Tucker v. Chatfield, 2023-0343 ( La. App. 1st Cir. 11/9/23), 379 So. 3d 678,

684.

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). The summary judgment

mover maintains the burden of proof. La. C.C.P. art. 966( D)(l). Nevertheless, if

the mover will not bear the burden of proof at trial on the issue before the court on

the motion, his burden is satisfied by pointing out an absence of factual support for

Louisiana Code of Civil Procedure article 966 was amended by La. Acts 2023, No. 317, 1; La. Acts 2023, No. 368, § 1, effective August 1, 2023. This court has determined that the amendments are substantive and cannot be applied retroactively. See La. C.C.P. art. 966, Comments - 2023, Comment (f); Ricketson v. McKenzie, 2023-0314 ( La. App. 1st Cir. 10/4/23), 380 So. 3d 1, 5. Accordingly, in the instant matter, we apply the version of La. C.C.P. art. 966 in effect at the time the motion for summary judgment was submitted and heard.

one or more elements essential to the adverse party's claim, action, or defense.

Thereafter, the adverse party must produce factual support sufficient to establish

the existence of a genuine issue of material fact or that the mover is not entitled to

judgment as a matter of law. If the adverse party fails to meet this burden, the

mover is entitled to judgment as a matter of law. Id.

DISCUSSION

The Lacassins allege that there are genuine issues of material fact regarding

whether LDWF had a reasonable expectation that a vehicle would traverse the area

where the sinkhole was located and whether the sinkhole was open and obvious.

Initially, LDWF bore the burden of proof both as the moving party seeking

summary judgment and as the party asserting the affirmative defense of immunity.

See La. C.C.P. art. 966( D)(l );Bailey v. Department of Culture Recreation & Tourism, 2021-0227 ( La. App. l8 Cir. 11/ 4/21), 332 So. 3d 679, 685. Both the

Lacassins and LDWF agree that La. R.S. 9:2795 applies in this case. Louisiana

Revised Statutes 9:2795 provides, in pertinent part:

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 ofthe 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.

4) " Charge" means the admission price or fee asked in return for permission to use lands.

5) " Person" means individuals regardless of age.

B. ( 1) 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 man-made.

E. ( 1) 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) ofthis Section.

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.

Emphasis added.)

While both parties agree that La. R.S. 9:2795 applies, the Lacassins allege

that there are genuine issues of material fact regarding whether LDWF had a

reasonable expectation that a vehicle would traverse the area where the sinkhole

was located and whether the sinkhole was open and obvious. Once a defendant has

established that it is entitled to immunity under La. R.S. 9:2795, the burden of

establishing a malicious or willful failure to warn of a dangerous condition shifts to

the plaintiff. Lester v. BREC Foundation, 2022-0514 ( La. App. pt Cir. 11/4/22),

356 So. 3d 18, 30, writ denied, 2023-00019 ( La. 3/ 7/ 23), 357 So. 3d 351. A

defendant owes a duty to discover any unreasonably dangerous condition on the

premises and either correct it or warn potential victims of its existence. However,

this duty does not extend to potentially dangerous conditions which should have

been observed by an individual in the exercise of reasonable care or which are as

obvious to a property owner as to a visitor. Doyle v. Lonesome Development,

Limited Liability Company, 2017- 0787 ( La. App. 1st Cir. 7 1 / 8/18), 254 So. 3d 714, 725, writ denied, 2018- 1369 ( La. 11/14/18), 256 So. 3d 291.

Since LDWF will not bear the burden of establishing a malicious or willful

failure to warn potential victims of the sinkhole at trial, it was only required to

point out an absence of factual support for one or more elements essential to the

Lacassins' claim. LDWF focuses on the duty element, arguing it had no duty to

warn the Lacassins of the presence of the sinkhole, and the breach element, arguing

the sinkhole was open and obvious. In support of its motion for summary

judgment, LDWF submitted the affidavit of Anthony Vidrine, the Regional

Manager for LDWF. Mr. Vidrine stated he oversees the management and all

projects at Sherburne and Sherburne is owned and administered by LDWF. He

further indicated he is familiar with the operation and maintenance of Sherburne

and the roads and designated parking areas there. Mr. Vidrine said there were

approximately 21 designated parking areas in Sherburne but there were not any

designated parking or turnaround areas at any part or area of Muddy Road. Further,

Mr. Vidrine stated that maps of Sherburne are available to the public via printed

maps, pocket maps, or online maps.

LDWF also attached excerpts of the deposition of Errol Theriot in support of

its motion. Mr. Theriot testified that he has worked for LDWF at Sherburne since

1998 and manages two employees. Mr. Theriot and the two other employees

bushhog5 the area and grade the roads. Mr. Theriot further stated the two yellow rails near the area where the accident happened were there in connection with a

well site that had been located beyond the rails. He stated the yellow rails were

there to stop people from driving into the well site and the area was " pretty much

kind of like a little turnaround" but it was not a parking area. Further, Mr. Theriot

stated he saw the sinkhole in September when he was bush hogging but he

continued working and did not report it.

Excerpts of the deposition of Gerard Lacassin were also attached in support

of LDWF' s motion for summary judgment. Gerard stated he had an outdated map

of Sherburne. He further stated that the area where the incident occurred had been

labeled a parking area by [ him] and everybody that [ he] hunts with," that he saw

people park there, and it was " definitely a parking spot."

The affidavit of Eric Burson was also attached m support of LDWF's

motion. Mr. Burson inspected the area of the accident on September 27, 2021,

almost four years after the incident, and he reviewed the 2016 and 2020 maps of

Sherburne. He stated the area where the sinkhole was located was not a designated

parking area pursuant to the maps that he reviewed. Further, he opined that if

Gerard was entering the area at a speed of five to ten miles per hour with subtle

braking, he could have stopped his vehicle within a distance of two to eight feet.

On the other hand, the Lacassins attached the affidavits of Adam Breaux,

Toby Mire, and Mathew Tate in support of their memorandum and supplemental

memorandum in opposition. The affidavits provide that they are familiar with the

5" Bushhog" means to clear land of trees and brush. " Bushhog." Merriam-Webster.com Dictionary, Merriam-Webster, https:// www.merriam- webster.com/dictionary/bushhog. Accessed March 15, 2024.

grassy lot wherein the sued upon incident occurred; they have parked in the subject

lot dozens of times or on many occasions; they have never been told not to park in

the subject lot; and they are familiar with other hunters who have also parked or

turned around in the subject lot. Further, Mr. Mire indicated LDWF instructed him

to park in the lot at issue as opposed to parking on the gravel road. Additionally,

excerpts of the depositions of Kyle Ford and Devin Dugas, LDWF employees, are

attached in support of the Lacassins' supplemental memorandum in opposition.

Both Mr. Ford and Mr. Dugas stated it would be unusual to see a vehicle in the

area where the accident occurred and they never saw vehicles parked there.

Further, Mr. Ford stated that he would have told someone to move their vehicle if

he saw it parked in the area where the accident occurred.

After de novo review, we find the evidence establishes the existence of

material facts genuinely in dispute. The conflicting testimony shows that there is a

genuine issue of material fact regarding whether there was a reasonable

expectation that a motorist would attempt to drive in the area where the sinkhole

was located. In determining whether a factual issue is genuine for purposes of

summary judgment, a court should not consider the merits, make credibility

determinations, evaluate testimony, or weigh evidence. State Through Division of

Administration v. Migues Deloach Company, LLC, 2023- 0320 ( La. App. 1st Cir.

12/27/23), 381 So. 3d 781, 786. Thus, we find there are genuine issues of material

fact regarding the expectation that a motorist would traverse the area.

LDWF also contends that it cannot be liable for the Lacassins' mJurtes

because the duty to warn does not extend to potentially dangerous conditions

which should have been observed by an individual in the exercise of reasonable care or which are as obvious to a property owner as to a visitor. In Mr. Theriot's

In Farrell, the Louisiana Supreme Court recently stated that " whether a condition is open and obvious is embraced within the breach ofthe duty element ofthe duty/risk analysis and

deposition, he stated that he saw the sinkhole in September while he was bush

hogging next to the hole but not before. Further, Mr. Burson, the forensic accident

reconstructionist, opined that if Gerard was entering the area at a speed of five to

ten miles per hour with subtle braking, he could have stopped his vehicle within a

distance of two to eight feet. However, Mr. Burson used an estimated speed and

estimated measurements in coming to his conclusion that the sinkhole would have

been visible to Gerard as the driver of the vehicle. Alternatively, Gerard testified

that he did not see the sinkhole before the accident occurred and he would have

tried to avoid it if he had seen it. After considering the evidence submitted, it is

apparent that even if LDWF had a duty to warn the Lacassins under La. R.S.

9:2795, there are genuine issues of material fact as to whether the sinkhole was

open and obvious. For those reasons, we conclude the trial court erred in granting

summary judgment in favor ofLDWF.

CONCLUSION

For the above and foregoing reasons, the June 21, 2023 judgment of the trial

court granting State of Louisiana, Department of Wildlife and Fisheries' motion

for summary judgment and dismissing Gerard Lacassin' s and Leighton Lacassin' s

4,637.00, are assessed to claims is reversed. Costs of this appeal, in the amount of $

State ofLouisiana, Department of Wildlife and Fisheries.

REVERSED.

is not a jurisprudential doctrine barring recovery, but only a factor of the risk/utility balancing test." Farrell v. Circle K Stores, Inc., 2022- 00849 ( La. 3/17/23), 359 So. 3d 467,478.

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2023 CA 1052

GERALD LACASSIN, INDIVIDUALLY AND ON BEHALF OF LEIGHTON LACASSIN

VERSUS

STATE OF LOUISIANA, DEPARTMENT OF WILDLIFE AND FISHERIES

f'& ************************************************ I~ McClendon, J., concurring.

I concur in the result reached by the majority.