 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Lambert v. State9/30/2005
ious failure to warn against a dangerous condition. As such, both the DWF's and the Watershed District's motions for summary judgment should have been denied.
Preemption Under La. R.S. 9:2772
Finally, the DOTD argues that its motion for summary judgment should have been granted because plaintiffs' suit against it is preempted by La. R.S. 9:2772. Under this statute, no action may be brought against a designer or builder of immovables or improvements for defects of, in this case, design or construction five years after the owner has occupied or taken possession of the improvement. The DOTD argues that while it constructed the boat launch, the Watershed District is the owner and had taken possession more than five years prior to the Lamberts' deaths.
Even if this is true, the DOTD does not escape potential liability as pertains to the dam. Though the record is not clear, it appears that the state owns the dam. Part of the plaintiffs' case is that the dam is flawed in that its design creates the vortex which pulls boaters against the natural current of the bayou and into the spillway structure, resulting in death. The DOTD has not made it clear who the owner of the dam is and whether it is still responsible for the upkeep and improvements to this structure. As such there remains a genuine issue of material fact as to whether this preemption applies to the DOTD. For this reason, the DOTD's motion for summary judgment should have been denied.
Conclusion
Immunities provided by the recreational use statutes must be strictly interpreted. As such, since the DWF is the only state agency named by the statute, the DOTD and the DNR are not granted immunity. Further, there remain genuine issues of material fact as to whether the plaintiffs' suit against the DOTD is preempted by La. R.S. 9:2772. Thus, trial court erred in granting the DOTD's and the DNR's motions for summary judgment.
While both the DWF and the Watershed District are granted limited liability under La. R.S. 9:2795, this limitation does not extend to a willful or malicious failure to warn of a dangerous condition. The record provides ample evidence to suggest that the Watershed District and/or the DWF failed to provide adequate warning and that this failure was willful. Thus, we find that the trial court erred in granting the DWF's and the Watershed District's motions for summary judgment.
For the reasons set forth above, that part of the trial court's judgment denying summary judgment to the Watershed District is affirmed. The remainder of the judgment, which granted summary judgment in favor of the Department of Transportation and Development, the Department of Natural Resources, and the Department of Wildlife and Fisheries, is hereby REVERSED.
This matter is REMANDED for further proceedings.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
As allowed by applicable statutory authority, costs are assessed to the Watershed District, the Department of Transportation and Development, the Department of Natural Resources, and the Department of Wildlife and Fisheries.
Page 1 2 3 4 5 6 7 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|