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DEMETRIS ROBINSON, INDIVIDUALLY AND ON BEHALF OF HER DECEASED SON, RAYVON ROBINSON VERSUS

NO. 08-CA-1224 C/W 08-CA-1225 FIFTH CIRCUIT COURT OF APPEAL

JEFFERSON PARISH SCHOOL BOARD, SOUTHERN BAPTIST CAMPING ASSOCIATION, TALL TIMBERS BAPTIST CONFERENCE CENTER AND SAM WHITE
C/W

STATE OF LOUISIANA

RAYNELL BAILEY, INDIVIDUALLY AND ON BEHALF OF HIS DECEASED SON, RAYVON ROBINSON VERSUS JEFFERSON PARISH SCHOOL BOARD, SOUTHERN BAPTIST CAMPING ASSOCIATION, TALL TIMBERS BAPTIST CONFERENCE CENTER AND SAM WHITE

COURT OF APPEAL,

FIFTH CIRCUIT

FILED APR -T 2009

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 642-492 c/w 642-652, DIVISION "J" HONORABLE STEPHEN J. WINDHORST, JUDGE PRESIDING April 7, 2009

FREDERICKA HOMBERG WICKER
JUDGE
Panel composed of Judges Clarence E. McManus, Fredericka Homberg Wicker, and Jerome M. Winsberg, Pro Tempore

WINSBERG, J., DISSENTS WITH REASONS
LIONEL H. SUTTON, III Attorney at Law
610 Baronne Street

New Orleans, LA 70113 COUNSEL FOR PLAINTIFF/2ND APPELLANT

MAGE

MARC E. JOHNSON
Attorney at Law

2214 Rev. Richard Wilson Drive Kenner, LA 70062 COUNSEL FOR PLAINTIFF/APPELLANT MICHAEL G. FANNING
Attorney at Law 238 Huey P. Long Avenue

P. O. Box 484 Gretna, LA 70054 COUNSEL FOR DEFENDANT/APPELLEE JAMES M. BENSON Attorney at Law 3850 North Causeway Boulevard Suite 1280 Lakeway Two Metairie, LA 70002 COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED

WAGE

parentsk tha 2e0-cyoenasro-lolddaseodn aone a edaeaedh and survival action proceedindgs, the

Tragically, their son drowned in a lake during a high school ROTC camping trip. Demetris Robinson (the mother), and Raynel Bailey (the father) individually and on behalf of their deceased son Rayvon Robinson filed separate petitions for damages against defendants/appellees Jefferson Parish School Board, Southern
Baptist Camping Association, Tall Timbers Baptist Conference Center and Sam

White. The cases were allotted to different divisions of the District Court but the father's case was later transferred and consolidated with the mother's case. The
plaintiffs alleged that the defendants were negligent in several respects, including failure to adequately supervise Rayvon, failure to perform a timely and adequate search, failure to train employees or agents in proper supervision of campers and
' On September 19, 2007, the father moved to dismiss Southern Baptist Camping Association. On that day, the trial judge granted the motion and dismissed this defendant from the father's suit, without prejudice as requested.

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students; failure to timely notify authorities of the disappearance; failure to

adequately provide for Rayvon's safety; and creating or allowing hazardous
conditions to exist. The father sought additional punitive and exemplary damages. The key issues in this case are: (1) Are Tall Timbers and Sam White immune from liability pursuant to the Recreational Use Statutes? (2) Did Jefferson Parish School

Board breach its duty of reasonable care? Finding that there are no genume issues as to material fact concerning these issues, we affirm.
Facts

It is undisputed that on March 17, 2006, Rayvon, a Jefferson Parish Bonnabel High School Student, attended a ROTC trip at the Tall Timbers Baptist Conference Center in Woodworth, Louisiana. Riverdale High School ROTC's
Colonel James T. Webb arranged the trip. The next morning on March 18, 2006, Colonel Webb discovered that Rayvon was missing. Approximately 10 days later,

his body was found in the lake. He was clothed and his boots were on. Approximately one year later, his cell phone and wallet were discovered near the lake. At the time, Rayvon was age 20.
Sam White and Tall Timbers filed a motion for summary judgment as did

Jefferson Parish School Board. In support of its motion for summary judgment, Sam White and Tall Timbers relied on Mr. White's affidavit and Colonel James T. Webb's deposition. Jefferson Parish School Board relied on the Webb deposition, the autopsy report, and Ms. Robinson's deposition.
According to the March 29, 2006 autopsy report, Rayvon died on March 28, 2006 as a result of asphyxia due to accidental drowning. No significant injuries were present. In his affidavit, Mr. White averred that he is the director of Tall Timbers Baptist Conference Center. He stated that Tall Timbers is a 123-acre facility that is

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adjacent to a portion of the Kisatchie National Forest in Rapides Parish. It has lodges and cabins with rooms to accommodate up to 400 people. It also has a dining facility, a swimming pool, an activity center, and a "ropes course." Most of the remainder of the grounds is heavily wooded except for a lake, which is about ten acres in size.
Mr. White described the relationship between Tall Timbers and the

Louisiana Baptist Convention. He stated that Tall Timbers is owned and comes under the umbrella of the Executive Board of the Louisiana Baptist Convention.
Tall Timbers is heavily subsidized by the Executive Board. Tall Timbers' mission

is to provide people with the type of atmosphere they desire as they seek God's will and the peace that He promises. According to Mr. White, Tall Timbers operates at a substantial loss, which is made up through an annual subsidy provided by the Convention. For the years
2005 through 2007, Tall Timbers received subsidies from the Convention that

ranged from $131,930.76 to $271,041.96.
Mr. White averred that at the time of this accident, Tall Timbers had 11 full time employees, and several part time employees, with the number depending upon the time of year. These employees operated the facility, but were not directly
involved with any activity of visiting groups except for the facility's "rope course,"

swimming pool, or pedal boats. Tall Timbers was not involved in any of the ROTC group's activities prior to Rayvon's disappearance. No one from Tall Timbers approved, participated in, or chaperoned any ROTC activity before
Rayvon's disappearance.

Mr. White described the events that followed Rayvon's disappearance. He
averred that Kevin Tichey, a maintenance worker at Tall Timbers, called Mr.

White at 7:30 a.m. on March 19, 2006, and told him that Rayvon was missing.

Two Tall Timbers' performed a search of the buildings while Mr. White was enroute to Tall Timbers. When one of the employees reported that all of the
buildings had been searched, that the ROTC members had searched all of the tents

and areas where they had conducted activities the night before, and that Rayvon
had not been found, Mr. White iminediately called 9-1-1.

Mr. White stated that a sheriffs deputy arrived at approximately 9:30 a.m. Thereafter, a search team searched the grounds. The search ended at dusk on the
March 19th and resumed at sunrise on the 20th. Detective Gary Bradford called

off the search at 11:00 a.m. on Sunday, the 20th, stating his belief that Rayvon had simply left the grounds in an attempt to get to Jackson, Mississippi, to visit his
girlfriend.

According to Mr. White, on March 28, 2006, Tall Timbers maintenance

Manager, Glen Smith, saw Rayvon's body floating in the water near the north
bank. Mr. Smith contacted Mr. White and Mr. White immediately called 9-1-1.

The sheriffs department removed the body from the water. Rayvon was wearing
his ROTC T-shirt, camouflage pants, and boots. Neither Mr. White nor anyone at

Tall Timbers knows how or why Rayvon entered the lake on March 18 or 19, 2006. More than a year after Rayvon's death, maintenance workers trimming the
perimeter of the lake found Rayvon's wallet and cell phone on the bank of the

south side of the lake. Colonel Webb testified in his 2007 deposition that for approximately three years, he had been a senior Air Force instructor at Riverdale High School, which is within the Jefferson Parish school system. Before that, he had been employed by
the St. Charles Parish school system approximately 11 years in that capacity. After his 1993 military service retirement, he had taken over the ROTC program in St.

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Charles Parish. Colonel Webb explained that as a ROTC instructor, he was employed as a teacher within the state system. He testified that students became eligible for ROTC when they entered the
ninth grade. ROTC students were required to take courses in the ROTC

curriculum. All other activities, such as field trips after school and on the weekend, however, were voluntary. Colonel Webb stated that one such outside activity was "snake school."
This was the activity that took place at Tall Timbers. Although this was the first

time they had conducted a "snake school" at Tall Timbers, this was not the first time they had conducted "snake school." Colonel Webb testified that he conducted the "snake school" program for approximately nine years at Destrehan High School. Before the Tall Timbers' trip, he had also previously conducted the program in Jefferson Parish at other facilities. He testified that his principal coordinates the offer of the "snake school"
program to other schools in the school system. Two to three months before they went to Tall Timbers, Sergeant Whitener surveyed the location. Based on Sergeant

Whitener's recommendation, they decided to conduct the "snake school" at Tall
Timbers. The Colonel stated that he had never visited the site before actually

arriving for "snake school" although he occasionally spoke with someone at Tall Timbers to discuss some details. Colonel Webb stated that he believed he had 12 chaperones for the trip consisting of four National Guard members, five parents, and three instructors. Sixty-eight students from four high schools, including Riverdale and Bonnabel,
attended the "snake school." Colonel Webb testified that Tall Timbers was required to meet basic requirements iri order to meet their needs in conducting a "snake school." These

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needs consisted of some manner in which to feed the students, two separate camping areas, a low ropes course, and a high ropes course. Details of the "snake
school" activities were spelled out in a contract that they signed with Tall Timbers.

The contract had details regarding ropes, camping requirements, and the dining facility. He stated that the "snake school" required two campsites because students were divided into two squadrons: the Alpha squadron and the Bravo squadron. He explained that there was a competition to capture the other squadron's flag.

Colonel Webb testified that basically Tall Timbers was not part of the
"snake school" activities although the ropes' instructors were arranged through
Tall Timbers. However, he did not think that the ropes' instructors were employees of Tall Timbers.

Colonel Webb testified that they arrived in buses at Tall Timbers. He spoke
to Rayvon on the bus in an attempt to know the students who did not attend Riverdale. Upon arrival at Tall Timbers, the students and chaperones unloaded their gear from the buses. Then, they went over the ground rules, including safety

rules with everyone. Sergeant Whitener walked with both squadrons on a daylight tour of the area to identify the operating area and to show where the students were
permitted to go and where they were prohibited from going. They went over the safety rules with them again and then they finished setting up their camps. They took the students to the other unit's encampment so they knew where that was and

vice versa. There was a lake in the middle of the camps. After they finished
setting up their camps, they started the "capture the flag" game. Colonel Webb stated that he gave the students a time limit of 4:00 a.m. Colonel Webb described the game. He stated that the goal was that each

squadron had a flag posted in the encampment. And their job was to defend it

against the other squadron. A student was captured by getting tagged by the other side. The students were never to go anywhere alone without a partner. If the
partner were captured, the student had to return to his camp and procure another partner. However, the students were not required to participate in the "capture the

flag" game. There were a few students who did not want to participate. Colonel Webb testified that he saw Rayvon before the game started. At the
time, the colonel had remarked that Rayvon's tent was crowded. Colonel Webb learned that Rayvon left his tent and his camping supplies at Riverdale. Therefore,

he was placed in a tent with four other students. Colonel Webb stated that he did
not recall seeing Rayvon after the game started. Colonel Webb was asked about his instruction to the students concerning the lake. He responded that he told them the lake was off limits. He stated that there was a perimeter road that the students could use to get to the other encampment but

they could not go inside that road toward the lake. The students were also told not to go on the side of the fence around the lake. He was asked how many feet was it
from the perimeter road on each side to the lake. He responded that it varied from

20 feet to 50 feet. He thought that some areas of the perimeter road were only 20 feet from the lake. When asked whether this was his own rule or whether this was an instruction
from Tall Timbers, he replied that he did not recall getting any input from Tall Timbers. He explained that it did not seem that they needed any input since the lake was not part of the program. Colonel Webb explained that they went over the ground rules before they ever got on the bus and made certain that everyone understood what was happening. Then, when they arrived at the campsite, they reinforced those ground rules.

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Colonel Webb was asked about the location of the "capture the flag" game. He replied that the students were told that they could not go into the woods. A few
students were not abiding by the rules. These students tried to go over the fence

and they were told not to do that. As the colonel patrolled the area, he made certain that the students were within the boundaries set forth in the rules. He testified that nothing unusual happened during the game. To his knowledge no one
tried to get into the lake and swim across the lake during the game. No one was reprimanded for going too close to the lake during the game.

Colonel Webb was asked whether the students were allowed to go around the wooded side of the lake where the road was to get to the other camp. He
replied that the instructions were for the students to remain on the road. They did not want the students going off the inside toward the lake and they did not want them getting off the path to the outside because at night there was no orientation. The road itself was in bounds during the game. He testified that the students in the game had flashlights. When they started

the game it was just getting dark. The game lasted until 2:00 a.m. There was no success on either side so they finally decided to end the game. He stated that no one from Tall Timbers participated in the game, provided any type of support for the game, or provided any type of supervision during the
game. The colonel did not ask Tall Timbers to do so. Colonel Webb testified that he was told by one of Rayvon's tent mates that Robinson was sitting in a chair outside of the tent after his partner had been captured. And then his partner returned and Rayvon, who was reading a book, did not want to go again. The colonel understood that Rayvon's partner and others left at that time. The colonel asked all of the students whether they teamed up with Rayvon again after that point and no one told him that Rayvon went out again with

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