Stelly v. USA

United States Court of Appeals
Fifth Circuit
F I L E D
August 4, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
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,
Circuit Judges.
PER CURIAM:*
Alfred Stelly appeals an adverse summary
judgment on his negligence claim against the
United States under the Federal Tort Claims
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determined that this opinion should not be
published and is not precedent except under the
(continued...)
*(...continued)
limited circumstances set forth in 5TH CIR. R.
47.5.4.

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I.
The Sabine National Wildlife Refuge is
owned by the United States and administered
by the Fish and Wildlife Service, an agency
within the Department of Interior. Members
of the public are permitted access to the
wildlife refuge, and permitted to engage in
recreational fishing, both without charge. The
State of Louisiana owns a right-of-way
through the refuge on which it built a state
highway. The Louisiana Department of Trans-
portation 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.
After parking his car, he walked across the
highway and down the shoulder’s short
embankment to reach the canal, as he had done
on previous occasions. He slipped on loose
gravel and fell, breaking his ankle and injuring
his back and hip. He sued, alleging that the
negligence of the United States caused his
injuries.
II.
“We review de novo a grant or denial of
summary judgment, applying the same
standard as did the district court.” Faris v.
Williams WPC-I, Inc., 332 F.3d 316, 319 (5th
Cir. 2003) (internal citations omitted).
Summary judgment is proper where “there is
no genuine issue as to any material fact and the
moving party is entitled to a judgment as a
matter of law.” FED. R. CIV. P. 56(c).
Under the FTCA, the United States is liable
for the torts of its employees to the same ex-
tent as a private party would be according to
the law of the state where the tort occurred.
28 U.S.C. §§ 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 prop-
erly concluded that Louisiana and not the
United States had a duty to keep them in a safe
condition.2
Stelly concedes 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. Arata v. Orleans
Capitol Stores, 55 So. 2d 239, 244 (La. 1951).
Stelly argues, however, that Louisiana 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 insur-
er of an invitee’s safety.4 Accordingly, a
1 See Syrie v. Schilhab, 693 So. 2d 1173, 1176-
77 (La. 1997); Socorro v. City of New Orleans,
579 So. 2d 931, 938-39 (La. 1991).
2 See Breshers v. Louisiana Dep’t of Transp. &
Dev., 536 So. 2d 733, 736-37 (La. App. 3d Cir.
1988), cert. denied, 541 So. 2d 854 (La.), and
cert. denied, 541 So. 2d 856 (La. 1969); Wall v.
Am. Employers Ins. Co., 215 So. 2d 913, 916 (La.
App. 1st Cir.), cert. 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
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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.”).

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