Stelly vs. USA, (5th Cir. 2003)
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United States Court of Appeals Fifth Circuit FILED August 4, 2003 Charles R. Fulbruge III Clerk In the United States Court of Appeals for the Fifth Circuit No. 03-30179 Summary Calendar A LFRED S TELLY , Plaintiff-Appellant, VERSUS U NITED S TATES OF A MERICA , ON B EHALF OF U NITED S TATES F ISH & W ILDLIFE S ERVICE , Defendant-Appellee. Appeal from the United States District Court for the Western District of Louisiana (01-CV-2365) Before J OLLY , H IGGINBOTHAM , and S MITH , Circuit Judges.
P ER C URIAM : * Alfred Stelly app eals an adverse summary judg ment on his negligence claim against the United States under th e Federal Tort Claims Act, 28 U.S.C. § § 1346(b), 2671-80 (“FTCA”). We affirm. * Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the (continued...) * (...continued) limited circumstances set forth in 5 TH C IR . R. 47.5.4. I.
The Sabine National Wi ldlife Refuge is owned by the United States and administered by the Fish and Wildlife Service, an agency within the Department o f Interior. Members o f the public are permitted access to the wildlife ref uge, and permitted to engage in recreational fishing, both without charge. The State of Louisian a owns a right-of-way through the refuge on which it bui lt a state highway. The Louisiana Department of Transportati on is responsible for repair and maintenance of the highway and its shoulder.
Stelly arrived at the refuge intending to go fishing in a canal bordered by the highway.
Aft er parking his car, he walked across the highway and down the shoulderÂ’s short embankment to reach the canal, as he had done on pr evious occasions. He slipped on loose gravel and fell, breaking his ankle and injuring his back and hip. He sued, alleging that the negligence of t he United States caused his injuries.
II. “We review de novo a grant or denial of s ummary judgment, applying the same stan d ard as did the district court.” Faris v. Williams WPC-I, Inc. , 332 F.3d 316, 319 (5th Cir. 2003) (inter nal citations omitted).
Summary judgment is proper where §§ 1346(b)(1), 2674. Louisiana law requires the plaintiff, in a personal injury suit, to prove, as an essential element of his claim, that the defendant owed a duty to protect him from the type of injury sustained. 1 Because the highway and shoulder are owned and maintained by the state, the district court properly c o ncluded that Louisiana and not the United States had a duty to keep them in a safe condition. 2 Stelly co ncedes that a property owner is generally not liable for injuries arising out of a defect in property adjoining his own unless he is responsible for the defect. A rata v. Orleans Capitol Stores , 55 So. 2d 239, 244 (La. 1951).
Stelly argues, however, that Lo uisiana law imposes a duty on property owners where they know of a dangerous condition on neighboring property ; the neighboring property is used for access to their own; and the condition poses a threat to the safety of their invitees. 3 A property owner is not, however, an insurer of an inv it eeÂ’s safety. 4 Accordingly, a 1 See Syrie v. Schilhab , 693 So. 2d 1173, 1176- 77 (La. 1997); Socorr o v. City of New Orleans , 579 So. 2d 931, 938-39 (La. 1991). 2 See Breshers v. Louisiana DepÂ’t of Transp. & Dev. , 536 So. 2d 733, 736-37 (La.
App. 3d Cir. 1988), cert. de nied , 541 So. 2d 854 (La.), a nd cert. denied , 541 So. 2d 856 (La. 1969); W all v. Am. Employers Ins. Co. , 215 So. 2d 913, 916 (La.
App. 1s t Cir.), c ert. denied , 217 So. 2d 415 (La. 1969). 3 Hammons v. City of Tallulah , 705 So. 2d 276, 281-82 (La. App. 2d Cir. 1997), writ denied , 716 So. 2d 892 (La.), and writ denied , 716 So. 2d 894 (La. 1998); see also Cothern v. LaRocca , 232 So. 2d 743 (La. 1970); Lancles v. Tomlinson , 351 So. 2d 1218, 1223 (La. App. 3d Cir.), cert. denied , 352 So. 2d 1023 (La. 1977). 4 Levert v. Traverlers Indem. Co. , 140 So. 2d (continued...) landowner has no duty to warn of a potentially dangerous condition that “should h ave been observed by an in dividual in the exercise of reasonable care or which was as obvious to a visitor as to the landowner.” S helton v. Aetna Cas. & Sur. Co. , 334 So. 2d 406, 410-11 (La. 1976). The loose gravel on the embankment wher e Stelly slipped was readily observable, and the risk of walking on it would have been obvious to a reasonably prudent person. Conseque nt ly, 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.”).
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