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Zulli v. Coregis Insurance Co.7/26/2005
Panel composed of Judges Edward A. Dufresne, Jr., Susan M. Chehardy, and Walter J. Rothschild
AFFIRMED.
This personal injury action arises from an incident that occurred on September 2, 2001 in St. Charles Parish. Plaintiff, Joseph Zulli, Jr., was crabbing at the fishing jetty located along the southern shoreline of Lake Pontchartrain near the Bonne Carre Spillway. The perimeter of the jetty is lined with corrugated plastic and supported with horizontal wooden beams, leaving holes between portions of the corrugated plastic and the wooden beams. According to defendants, the corrugated plastic prevents erosion of the jetty, and the holes allow water to drain off the pier when waves crash onto the surface.
While crabbing, Mr. Zulli pulled up one of his crab nets and deposited a crab in his wooden hamper. Then, as he prepared to throw his net back into the water, his left leg went into a large hole, causing him to fall and suffer severe injuries, including a broken hip and leg. Mr. Zulli testified that he did not see the hole, because the grass and weeds were overgrown and obscured the holes in this area.
On June 17, 2002, Mr. Zulli and his wife, Linda Zulli, filed suit against St. Charles Parish and its liability insurer, Coregis Insurance Company. In their petition, plaintiffs allege that the holes in the jetty were hazardous and that the accident and resulting injuries were caused by the negligence and/or strict liability of St. Charles Parish for failing to properly maintain the pier and failing to properly construct and design the pier. Defendants answered the suit, denying plaintiffs' claims against them and asserting that the accident was caused solely by Mr. Zulli's negligence or alternatively, that Mr. Zulli was comparatively at fault.
On April 30, 2004, defendants filed a Motion for Summary Judgment, arguing, among other things, that they were not liable for Mr. Zulli's injuries pursuant to LSA-R.S. 9:2791 and 9:2795. These statutes limit the liability of public entities for accidents occurring on "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," with an exception for intentional or grossly negligent acts by an employee of the public entity. Plaintiffs opposed the Motion for Summary Judgment, asserting that defendants waived their immunity defense under LSA-R.S. 9:2791 and 9:2795, because they did not plead it as an affirmative defense in their Answer. They further argue that these immunity statutes do not apply to this case, because the incident occurred on a jetty, not a "public park."
On May 12, 2004, defendants filed a Motion for Leave to File Amended Answer, which was granted by the trial court. On May 14, 2004, defendants filed an Amended Answer, setting forth "the defense of immunity as provided by Louisiana Revised Statutes 9:2791 and 9:2795 based on the recreational nature of the fishing jetty at issue." The Motion for Summary Judgment came for hearing on May 17, 2004. On May 21, 2004, the trial court issued a judgment, denying defendants' motion and finding that ".for purposes of this summary judgment only, defendants have not established that the incident site was a 'park' under a (required) strict construction of Louisiana's 'Recreational Use Immunity Statutes,' La. R.S. ยงยง 9:2791 and 9:2795." The trial court further stated that " he Court has allowed defendant to amend its answer to include the affirmative defense of Immunity."
Trial of this matter was held on June 1 and 2, 2004. On August 30, 2004, the trial court signed a judgment in favor of defendants, dismissing plaintif
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