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.