Stelly v. United States , 71 F. App'x 326 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
In the August 4, 2003
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
No. 03-30179
Summary Calendar
_______________
ALFRED STELLY,
Plaintiff-Appellant,
VERSUS
UNITED STATES OF AMERICA,
ON BEHALF OF UNITED STATES FISH & WILDLIFE SERVICE,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
(01-CV-2365)
_________________________
Before JOLLY, HIGGINBOTHAM, and SMITH, Alfred Stelly appeals an adverse summary
Circuit Judges. judgment on his negligence claim against the
United States under the Federal Tort Claims
PER CURIAM:* Act, 28 U.S.C. §§ 1346(b), 2671-80
(“FTCA”). We affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has
*
determined that this opinion should not be (...continued)
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
(continued...) 47.5.4.
I. that the defendant owed a duty to protect him
The Sabine National Wildlife Refuge is from the type of injury sustained.1 Because
owned by the United States and administered the highway and shoulder are owned and
by the Fish and Wildlife Service, an agency maintained by the state, the district court prop-
within the Department of Interior. Members erly concluded that Louisiana and not the
of the public are permitted access to the United States had a duty to keep them in a safe
wildlife refuge, and permitted to engage in condition.2
recreational fishing, both without charge. The
State of Louisiana owns a right-of-way Stelly concedes that a property owner is
through the refuge on which it built a state generally not liable for injuries arising out of a
highway. The Louisiana Department of Trans- defect in property adjoining his own unless he
portation is responsible for repair and is responsible for the defect. Arata v. Orleans
maintenance of the highway and its shoulder. Capitol Stores, 55 So. 2d 239, 244 (La. 1951).
Stelly argues, however, that Louisiana law
Stelly arrived at the refuge intending to go imposes a duty on property owners where they
fishing in a canal bordered by the highway. know of a dangerous condition on neighboring
After parking his car, he walked across the property; the neighboring property is used for
highway and down the shoulder’s short access to their own; and the condition poses a
embankment to reach the canal, as he had done threat to the safety of their invitees.3
on previous occasions. He slipped on loose
gravel and fell, breaking his ankle and injuring A property owner is not, however, an insur-
his back and hip. He sued, alleging that the er of an invitee’s safety.4 Accordingly, a
negligence of the United States caused his
injuries. 1
See Syrie v. Schilhab, 693 So. 2d 1173, 1176-
II. 77 (La. 1997); Socorro v. City of New Orleans,
579 So. 2d 931, 938-39 (La. 1991).
“We review de novo a grant or denial of
summary judgment, applying the same 2
See Breshers v. Louisiana Dep’t of Transp. &
standard as did the district court.” Faris v. Dev., 536 So. 2d 733, 736-37 (La. App. 3d Cir.
Williams WPC-I, Inc., 332 F.3d 316, 319 (5th 1988), cert. denied, 541 So. 2d 854 (La.), and
Cir. 2003) (internal citations omitted). cert. denied, 541 So. 2d 856 (La. 1969); Wall v.
Summary judgment is proper where “there is Am. Employers Ins. Co., 215 So. 2d 913, 916 (La.
no genuine issue as to any material fact and the App. 1st Cir.), cert. denied, 217 So. 2d 415 (La.
moving party is entitled to a judgment as a 1969).
matter of law.” FED. R. CIV. P. 56(c). 3
Hammons v. City of Tallulah, 705 So. 2d
Under the FTCA, the United States is liable 276, 281-82 (La. App. 2d Cir. 1997), writ denied,
716 So. 2d 892 (La.), and writ denied, 716 So. 2d
for the torts of its employees to the same ex-
894 (La. 1998); see also Cothern v. LaRocca, 232
tent as a private party would be according to So. 2d 743 (La. 1970); Lancles v. Tomlinson, 351
the law of the state where the tort occurred. So. 2d 1218, 1223 (La. App. 3d Cir.), cert. denied,
28 U.S.C. §§ 1346(b)(1), 2674. Louisiana law 352 So. 2d 1023 (La. 1977).
requires the plaintiff, in a personal injury suit,
to prove, as an essential element of his claim, 4
Levert v. Traverlers Indem. Co., 140 So. 2d
(continued...)
2
landowner has no duty to warn of a potentially
dangerous condition that “should have been
observed by an individual in the exercise of
reasonable care or which was as obvious to a
visitor as to the landowner.” Shelton v. Aetna
Cas. & Sur. Co., 334 So. 2d 406, 410-11 (La.
1976). The loose gravel on the embankment
where Stelly slipped was readily observable,
and the risk of walking on it would have been
obvious to a reasonably prudent person. Con-
sequently, the condition of the shoulder did
not give rise to a duty to warn.
Because Stelly has failed to identify a duty
on the part of the United States to protect him
from the injury he sustained, summary
judgment was proper.
AFFIRMED.
4
(...continued)
811, 813 (La. App. 3d Cir. 1962) (“[A]n invitee
assumes all normally observable or ordinary risks
attendant upon the use of the premises.”).
3