Fisherman's Decision To Jettison Life Preserver Doesn't Shield State Liability For Drowning

In McManus v. State of Louisiana Dept. of Wildlife and Fisheries, Mrs. McManus, individually and on behalf of her minor children, sued two State of Louisiana agencies for the drowning death of her husband. Mr. McManus drowned when he and a friend were attempting to catch baitfish with cast nets from a boat on a public lake near the base of a damn. The men were wearing life vests for the boat ride to the damn, but removed them after arriving at the damn.   Instead of floating down stream away from the damn, as the men had suspected, the boat was drawn towards the damn and was swamped by water falling over the damn. Mr. McManus drowned; whereas his friend swam to shore. After trial, a jury rendered a verdict in favor of Mrs. McManus and her children, but apportioned 25% of the fault for his drowning to Mr. McManus.

The State appealed on numerous grounds, but the primary arguments were that the state was entitled to “recreational immunity” and that it did not have actual or constructive knowledge of the dangerous condition that required it to correct the condition or warn of the danger. The state relied, in part, on the Louisiana Recreational Use Statutes, La. R.S. § 9:2791 (pdf) and La. R.S. §9:2795 (pdf) and argued that the jury improperly concluded that the State knew about the dangerous condition and failed to timely act to correct the condition or warn of its existence.

La. R.S. § 9:2791 provides, in relevant part, that “An owner . . . owes no duty of care to keep such premises safe for entry or use by others for . . . fishing . . . or boating or to give warning of any hazardous conditions, . . . . whether the hazardous condition . . . is one normally encountered in the true outdoors or one created by the placement of structures or conduct of commercial activities on the premises.” La. R.S. §2791, on the other hand, makes clear that immunity will not apply when a landowner willfully or maliciously fails to warn of a dangerous condition of which it knows and that would not otherwise be open and obvious to the recreational user. The appellate court noted that the Louisiana Recreational Use Statutes do not provide absolute immunity for injuries sustained on recreational lands and facilities. Rather, the immunity is qualified and, whether immunity will attach, is dependent on a case-by-case factual analysis. 

Reviewing the facts in the record, the appellate court determined that the jury did not err in its conclusion that the State knew that there was a probability that a boat coming within a certain distance of the base of a damn could be drawn toward the damn and failed to warn of the danger. The court noted that the State included warnings regarding the dangers presented by damns on one of its websites and directed that, when the danger is known, the State is required to post warning signs or correct the dangerous condition. In addition, an employee of the Department of Wildlife and Fisheries had testified that he had a virtually identical experience at the same damn, but that he was able to don his life jacket to avoid drowning. Moreover, the plaintiffs’ expert provided unrefuted testimony that the danger of being pulled towards a damn was not obvious to the public and would not be obvious from looking at this particular damn. He testified, however, that such knowledge was common within the water resource management community and should have been within the knowledge of the people responsible for maintenance and operation of the damn. Finding actual or constructive knowledge of the danger and adequate time to caution users, the appeals court affirmed the State’s liability.

Take-Away: Whether a dangerous condition on recreational property is open and obvious may not always be clear, but a property owner cannot turn a blind eye to serious incidents on its property and hope to find shelter in the Recreational Immunity Statutes.

Employers Beware: The Worker's Compensation Act does not bar personal injury claims related to damages caused by your office building

On June 17, 2009, the Louisiana Court of Appeal for the Fourth Circuit determined that employees could recover in tort against their employer for injuries alleged to have been caused by the workplace.   The case, Watters, vs. Department of Social Services, involved the now infamous Plaza Tower Office Building located at 1001 Howard Avenue in New Orleans, Louisiana that was leased almost entirely by the State of Louisiana. Following numerous media reports in the Fall of 2001 concerning the potential existence of “toxic mold” in the Plaza Tower, a class action was filed on behalf of all State employees who were assigned to work in the Plaza Tower from September 1996 to February 2002. The Plaintiffs alleged that they had complained of, among other things, water leaks, defective elevators, the presence of unknown toxic substances, and safety hazards. They further claimed that, during their occupancy of the building, they suffered excessive illnesses, including sinus and allergy problems, debilitating headaches, skin irritation, watery eyes, and fatigue. In addition to suing the building’s owner, the Plaintiffs also sued the State – their employer – on the grounds that the State had breached its duty to provide a safe work place. In response to the suit, the State sought the protections of the Louisiana Worker’s Compensation Act (pdf) and to have the matter dismissed on those grounds, arguing that the Statute shielded it from tort liability. Although the Court recognized that the duty to provide a safe workplace was a specific statutory provision contained within the Worker’s Compensation Act, it nonetheless concluded that the duty could also sound in tort.   Relying on its decision in Ruffin v. Poland Enterprises, L.L.C., the Court refused to apply the Worker’s Compensation bar and, instead, concluded that the clerical employees' claims against their state employer for exposure to mold in the workplace fell outside the scope of protections afforded by the Workers' Compensation Act.  The court reasoned that such exposures were not: a work related accident; an occupational disease; or, peculiar to or characteristic of clerical employment.

Take-Away: The existence of hazardous conditions in the workplace – unless the hazardous condition is associated with the general nature of the work performed– can form the basis of tort liability against employers for failing to provide a safe workplace.