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Cunningham v. Northland Insurance Co.9/14/2000
REVERSED AND REMANDED.
In this personal injury case, the trial court granted defendants' motion for summary judgment, dismissing plaintiffs' claims as to them. For the following reasons, we reverse the summary judgment and remand the matter for further proceedings.
This case arises out of an all-terrain vehicle (ATV) accident sustained by plaintiff/appellant, Edward P. Cunningham, III, on land in Mississippi leased for hunting by defendant/appellee, Eight Point Hunting Club of Metairie. Plaintiff was an officer in the hunting club and one of its founding members.
In September of 1997, prior to the start of the hunting season, plaintiff was riding his three-wheeled ATV on the leased property, traveling to an area hunted primarily by another officer/member, Paul Melancon, in order to assist in the construction of a deer stand. On his way to the site, plaintiff had to travel up a newly-constructed "ridge road," which was cut around a large sinkhole on a hill in a wooded area. As he got to the top of the hill, the front wheel of plaintiff's ATV began to rise off of the ground. In an attempt to restabilize the ATV, plaintiff leaned forward to put more weight on the front end. As he did this, the rear wheels of the ATV lost traction and the ATV began rolling backwards down the hill. Plaintiff attempted to jump clear of the ATV, but instead fell into the sinkhole. The ATV also fell into the sinkhole on top of plaintiff, causing injuries.
Plaintiff (along with his wife and his daughter) filed suit against the hunting club, its insurer, defendant/appellee, Northland Insurance Company, and Yamaha Motor Corporation, U.S.A., the manufacturer of plaintiff's ATV. The plaintiffs' theory of liability against the hunting club was that it was negligent in failing to repair a dangerous condition on its premises (i.e., the sinkhole). This appeal only concerns the plaintiffs' claims against the hunting club.
After the commencement of this lawsuit, and in addition to other discovery being propounded, the depositions of plaintiff and Paul Melancon were taken. Mr. Melancon was assigned to make sure that all of the roads on the land were passable prior to the start of the 1997 hunting season.
The hunting club and Northland thereafter filed a motion for summary judgment, arguing that no material facts are in dispute and that they are entitled to judgment as a matter of law. After a hearing on defendants' motion, the trial court took the matter under submission. On December 8, 1999, the trial court granted defendants' summary judgment and dismissed the plaintiffs' suit against them. The judgment was thereafter certified as a final, appealable judgment pursuant to La. C.C.P. art. 1915, and this appeal ensued.
On appeal, the plaintiffs assert, inter alia, that " he trial judge erred in the interpretation and application of Mississippi law dealing with the so-called `open and obvious' defense." At this point, it bears noting that because the accident happened in Mississippi, pursuant to La. C.C. art. 3543, " ssues pertaining to the standards of conduct and safety are governed by the law of the state in which the conduct that caused the injury occurred ..." Both parties agree to the applicability of Mississippi law herein.
The other issue raised by the plaintiffs on appeal is that the trial court erred in determining that even if the hunting club was negligent in not filling the sinkhole, "the act of the plaintiff in attempting to drive up the hill, knowing there existed a tendency to tilt backwards, was an intervening cause of his injuries."
It is well settled that appellate courts are required to review summary judgments d
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