Zulli v. Coregis Insurance Co.7/26/2005
fs' claims against them. In his reasons for judgment, the trial judge found that the fishing jetty is managed as a public park by St. Charles Parish and qualifies for the limitation of liability in LSA R.S. 9:2795. It is from this judgment that plaintiffs appeal.
LAW AND DISCUSSION
In their first assignment of error, plaintiffs contend that the trial court erred in permitting defendants to amend their pleadings to add the affirmative defense of immunity only days before trial, to the prejudice of plaintiffs. They assert that the trial court should not have allowed the amendment, because defendants did not plead immunity as an affirmative defense in their original Answer or at any time prior to ten days before trial. Defendants respond that the provisions of LSA-R.S. 9:2791 and 9:2795 are not affirmative defenses that must be pled in their Answer; rather, they are simply statutes that impose limitations of liability.
LSA-C.C.P. art. 1005 provides in pertinent part:
The answer shall set forth affirmatively arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy , division, duress, error or mistake, estoppel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, transaction or compromise, and any other matter constituting an affirmative defense.
An affirmative defense is a defense to the action which will have the effect of defeating plaintiff's demand on its merits. Abadie v. Markey, 97-684 (La. App. 5 Cir. 3/11/98), 710 So. 2d 327, 332; Brantley v. State Farm, 37,601 (La. App. 2 Cir. 1/28/04), 865 So. 2d 265, 270. In the present case, the defense of immunity under LSA-R.S. 9:2791 and 9:2795 has the effect of defeating plaintiffs' suit on its merits. Accordingly, it is an affirmative defense that must be specifically pled. The defendants did not assert their immunity defense in their original Answer, but the trial judge granted defendants' Motion to Amend Answer. Failure to plead an affirmative defense in defendants' Answer does not automatically preclude the application of the defense. Furlough v. Union Pacific Railroad, Co., 33,658 (La. App. 2 Cir. 8/31/00), 766 So. 2d 751, 756, writ denied, 00-2929 (La. 1/12/01), 781 So. 2d 551; Snearl v. Mercer, 99-1738 (La. App. 1 Cir. 2/16/01), 780 So. 2d 563, 572, writs denied, 01-1319, 01-1320 (La. 6/22/01), 794 So. 2d 800. The trial court is vested with broad discretion in ruling on motions to amend pleadings, and its decision to grant a Motion to Amend may not be disturbed absent an abuse of discretion. Hogan v. State Farm Automobile Insurance Co., 94-0004 (La. App. 1 Cir. 12/22/94), 649 So. 2d 45, 50, writ denied, 95-0215 (La. 3/17/95), 651 So. 2d 276.
The purpose of the requirement that an affirmative defense be specifically pled is to give fair notice of the nature of the defense and to prevent surprise. Young v. St. Landry Parish School Board, 99-581 (La. App. 3 Cir. 12/15/99), 759 So. 2d 800, 803-804, writ denied, 00-118 (3/17/00), 756 So. 2d 1144; Salter v. State through Dept. of Health and Human Resources, 91-2081 (La. App. 1 Cir. 12/23/92), 612 So. 2d 163, 166. In the instant case, defendants amended their Answer on May 14, 2004. Plaintiffs argue that they were prejudiced when the trial court allowed defendants to amend their Answer "only days before trial," because they had no opportunity to conduct discovery on the immunity issue or to prepare and oppose this defense. However, plaintiffs had notice that defendants were asserting an immunity defense when defendants raised this defense in their Motion for Summary Judgment filed April 30, 2004. Further, if plaintiffs believed that more time for d
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