author: WATSON, Justice. DENNIS, J.,

text:
    STATE of Louisiana v. Keffal WHITTAKER.
    Nos. 84-K-1188, 84-K-1193.
    Supreme Court of Louisiana.
    Feb. 25, 1985.
    Dissenting Opinion Feb. 26, 1985.
    Rehearings Denied May 2,1985.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., Counsel for plaintiff-applicant and plaintiff-respondent.
    Kathleen Stewart Richey, Asst. Public Defender, Alton T. Moran, Chief Public Defender, Anne L. Jordan, Philip Shaheen, Baton Rouge, for defendant-respondent and defendant-applicant.
   WATSON, Justice.

Keffal Whittaker, indicted on two counts of first degree murder, was convicted by a jury of two counts of second degree murder in violation of LSA-R.S. 14:3o.!. Whittaker was sentenced to two concurrent terms of life imprisonment, without benefit of probation, parole, or suspension of sentence.

The Court of Appeal reversed the convictions, vacated the sentences, and remanded for a new trial on the ground that the trial court erred in admitting into evidence a note allegedly written by defendant to another jail inmate. State v. Whittaker, 449 So.2d 611 (La.App. 1 Cir.1984). Both the state and defendant applied for writs, which were granted. 458 So.2d 466 (La., 1984). The state contends the trial court was correct, and defendant argues that he is entitled to a dismissal of the prosecution for insufficient evidence.

FACTS

On the morning of February 17, 1982, the manager of the Supermat Washateria at 5537 Maplewood Drive in Baton Rouge found the front door to the washateria unlocked. The keys inside the door belonged to night employee Cynthia Padgett, who was responsible for locking the door at 9:00 P.M. The cash register was open and the cash tray, containing approximately two hundred dollars, was missing. Cynthia was often driven home at night by Patricia Canavan. The bodies of the two girls were found in a “closet” of the washateria, each one fatally shot at close range with a .38 caliber bullet. (Tr. 387) A neighbor had heard what sounded like two shots around 11:00 P.M. the previous night.

About 7:00 A.M. the same morning, in a dead-end alley near 2553 Kincaid Street, an unfamiliar and “suspicious” looking car was reported to the police. (Tr. 400) It was the car used by Patricia Canavan, which belonged to her father. It had apparently been abandoned by the murderer or murderers. The car had been left within one-half mile of defendant’s residence (closer on foot).

Six months later, a confidential informant indicated that Melvin Sterling, Darren Kent and Keffal Whittaker were involved in the offense. Defendant Whit-taker was arrested, given his Miranda warnings and signed a form indicating he understood them. Defendant admitted he had driven the Canavan car but claimed that Kent and Sterling had picked him up as he was walking home from his girlfriend’s house and requested that he drive them; he did and then dropped the car off near his home.

Whittaker’s girlfriend, India Dunn, told investigators that Whittaker was not at her house the evening of the murders. She remembered the date because she saw a news broadcast about the double homicide the next morning. Her father confirmed that she was not being allowed to see Whit-taker at the time. India said she had given a similar statement to “a lawyer”. (Tr. 649)

At trial, defendant called his stepfather, his girlfriend, her mother, father and sister as alibi witnesses. India Dunn testified she and defendant broke up on February 12, 1982, but reconciled on Valentine’s Day. After that date, Whittaker came to her house every morning and stayed until her father got up to go to work, about 11:00 or 12:00 at night. When the father left for work, Whittaker would go to his own home, his stepfather’s home. Reminded that she attended school during the day, India Dunn was still positive Whittaker was with her every night. India said defendant had the nickname “Nellie Nell.” (Tr. 622) She did not remember being asked by the investigators if Whittaker was with her the evening of the murders and denied saying he was not.

The remaining alibi witnesses testified Whittaker was at the Dunn home every night for about a month after the reconciliation. India Dunn’s father reported for work at midnight and said Whittaker, whom he apparently also knew as Nellie Nell, was there when he got up about 11:00 P.M. every night.

On January 12,1983, Whittaker had been in court and was then placed in a holding cell with other prisoners, including Robert Jones. Jones received a note from “Nellie Nell” (Tr. 565) which was intended for Darren Kent, who was locked in the same cell area as Jones. Sergeant Leon Denham intercepted the note, which was written on a torn piece of the January 12th Morning Advocate. The note is not entirely clear, but the approximate wording is as follows:

“Keffall
“Say man look here this nelly nel look Be cool man don’t fuck with thim white folk Be for far Real man write man and let me know I know you will hold out But when you go to trild don’t say ending theng about if thay ask you tell thim you lie ok we got thim Bicth so will walk it will just take time Nelly nel.” (Exhibit S-49)

ISSUES AND LAW

The first issue is whether the trial court erred in finding the note to be relevant evidence. Absent a clear abuse of discretion, the trial court’s ruling as to the relevancy of evidence should not be disturbed on appeal. State v. Rault, 445 So.2d 1203 (La., 1984).

LSA-R.S. 15:441 defines relevant evidence as “that tending to show the commission of the offense and the intent.... Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.” The standard of relevancy in Louisiana is based on logic and experience. State v. Davenport, 445 So.2d 1190 (La., 1984). Evidence is relevant which makes any fact indicating guilt or innocence more or less probable. “It is not necessary that all possibility of alteration be eliminated for evidence to be admissible, as long as the ,evidence establishes eonnexity by a preponderance of the evidence. State v. Rittiner, 341 So.2d 307 (La., 1977); State v. Singleton, 311 So.2d 881 (La., 1975).” State v. Sherer, 354 So.2d 1038 at 1042 (La., 1978). In State v. Elzie, 351 So.2d 1174 (La., 1977), a letter allegedly written by defendant to a rape victim apologizing for “that little incident” and encouraging her to “show him a little sympathy” by not appearing in court was found admissible.

This note is clearly relevant. It indicates consciousness of guilt and an attempt to persuade a co-defendant to remain silent or lie. The declaration: “we got thim bicth so will walk” indicates that the victims were killed to silence them. The note establishes intent to murder.

Like all evidence tending to show guilt, the note was prejudicial. However, its probative value outweighs its prejudicial effect. It is virtually an admission of guilt. State v. Elzie, supra.

The second issue is whether the evidence was sufficient to sustain the guilty verdicts. In other words:

“ ‘... whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ (Jackson v. Virginia, 443 U.S. 307 at 319, 99 S.Ct. 2781 at 2789, 61 L.Ed.2d 560 at 573 [1979], which is the federal or constitutional standard); and, since this is a circumstantial evidence case, whether, assuming every fact to be proved that the evidence tends to prove, every reasonable hypothesis of innocence is excluded (LSA-R.S. 15:438, the state or statutory standard).” State v. Parker, 425 So.2d 683 at 694 (La., 1983).

Defendant admitted he was driving the Canavan car on the night of the murders. His alibi witnesses did not establish that he was at the Dunn home that evening at the time of the crime. Moreover, both India Dunn and her father’s alibi testimony at trial was contrary to that given during investigation. The jury could reasonably have concluded either that: (1) Whittaker was not at the Dunn home that night; or (2) he left the Dunn home in time to commit the two murders around 11:00 P.M. Defendant’s admitted use of the Canavan car and his admissions in the note constitute strong circumstantial evidence of guilt.

Defendant contends that there is a reasonable hypothesis that he did not author the note. However, this is not a credible possibility. According to the witnesses and the note itself, it came from Nelly Nell, unquestionably defendant’s nickname. Connexity of the note to this defendant and his crime is primarily a factual question for the jury’s determination. State v. Freeman, 306 So.2d 703 (La., 1975); U.S. v. Snow, 517 F.2d 441 (9th Cir., 1975); State v. Elzie, supra.

CONCLUSION

Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found defendant guilty of second degree murder. The evidence excludes every reasonable hypothesis of innocence.

For the foregoing reasons, the defendant’s convictions and sentences are reinstated and the case is remanded to the First Circuit Court of Appeal for consideration of defendant’s other assignments of error.

CONVICTIONS AND SENTENCES REINSTATED; CASE REMANDED.

DENNIS, J.,

dissenting.

I respectfully dissent. Under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence is insufficient to support a finding of all the elements of second degree murder.

      . LSA-R.S. 14:30.1 provides:
      "Second degree murder is the killing of a Jiuman being:
      "(1) When the offender has a specific intent to kill or to inflict great bodily harm; or "(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.
      "Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence."

      . Darren Kent and Melvin Sterling were granted use and derivative use immunity by the District Attorney and the Attorney General. Both were subpoenaed to testify at defendant’s trial but refused and were held in contempt. For facts surrounding Sterling's involvement see State v. Sterling, 444 So.2d 273 (La.App. 1 Cir.1983).


source: Caselaw Access Project

author: DENNIS, Justice. CALOGERO, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Walter J. TAYLOR.
    No. 84-KA-1324.
    Supreme Court of Louisiana.
    Feb. 25, 1985.
    Concurring Opinion March 6, 1985.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Nancy Sharp, Rockne Moseley, Asst. Dist. At-tys., for appellant-plaintiff.
    Samuel S. Dalton, Jefferson, for appel-lee-defendant.
   DENNIS, Justice.

Vehicular homicide is defined as the killing of a human being caused by a person's operation of an automobile when the operator’s blood alcohol concentration is 0.10 percent or more . La.R.S. 14:32.1. The trial court declared the statute unconstitutional, and the state appealed. La. Const, art. V, § 5. This appeal draws into question the trial court’s construction of the statutory crime definition as requiring no causal link between a vehicle operator’s blood alcohol concentration and the killing of a human being. We reverse. A genuine construction of the statute indicates a legislative aim to punish a person whose unlawful blood alcohol concentration in combination with his vehicle operation causes the death of a human being.

Defendant, Walter J. Taylor, was charged with the commission of vehicular homicide, La.R.S. 14:32.1, arising out of a fatal accident on February 10, 1984. Defendant moved to quash the bill of information. The trial court construed the statute as establishing that a traffic fatality caused by a vehicle operator having blood alcohol concentration of 0.10 percent or more is presumed to have resulted from his negligent operation and his unlawful blood alcohol concentration. Concluding that the statute sets up unconstitutional presumptions relieving the state of its burden of proof, the trial court struck the statute and quashed the bill.

We do not view the statute as creating any presumptions. Giving the provisions of La.R.S. 14:32.1 a genuine construction, according to their context and with reference to their purpose, La.R.S. 14:3, we conclude that under the vehicular homicide statute, the state, in order to convict, must prove that an offender’s unlawful blood alcohol concentration combined with his operation of a vehicle to cause the death of a human being. In our opinion, the statute does not establish any presumption of causation or negligence in aid of the prosecution; indeed, except for the offender’s unlawful blood alcohol concentration during his operation of a vehicle, the state is not required to prove any negligence on his part as an essential element of the crime.

The evident purpose of the vehicular homicide statute is to curb traffic fatalities caused by the consumption of alcohol. It is not aimed at persons involved in vehicular fatalities whose alcohol consumption does not cause but merely coincides with such an accident. A vehicle operator with unlawful blood alcohol concentration could be involved in many conceivable types of fatal accidents not caused in any way by his blood alcohol concentration. The punishment of persons who without fault and by coincidence fall in this latter class with the severe penalties intended for offenders whose alcohol consumption actually causes highway deaths is unnecessary to the legitimate purpose of the legislation and would constitute unwarranted statutory overkill.

The criminal code expressly states that a crime is conduct defined as criminal, La.R.S. 14:7, and that criminal conduct consists of an act, a failure to act, or criminal negligence that “produces” criminal consequences. La.R.S. 14:8. Therefore, unless the legislature expressly stipulates otherwise, the conduct described in a crime definition “must result in” criminal consequences, id. Reporter’s Comment. In other words, the conduct must be causally related to a prescribed criminal consequence. See La.R.S. 14:8, 9. Accordingly, the vehicular homicide statute should be construed to require proof of a causal relationship between an operator’s unlawful blood alcohol concentration and the death of a victim in order to convict.

Accordingly, under the statutory scheme of the criminal code the vehicular homicide statute complements the purposes served by negligent homicide and drunk driving laws. The DWI law makes it a crime to operate a vehicle when the operator’s blood alcohol concentration is 0.10 percent, punishable on first conviction by a fine of no more than $500 and imprisonment of up to six months. La.R.S. 14:98. The negligent homicide statute makes it a crime to kill a human being by criminal negligence, punishable by imprisonment with or without hard labor for not more than five years, a fine of not more than five thousand dollars, or both. La.R.S. 14:32. The vehicular homicide statute imposes criminal sanctions similar to those imposed by the negligent homicide law, but requires a minimum prison sentence and a minimum fine, whenever a person’s operation of a vehicle and his blood alcohol concentration of 0.10 percent ór more combine to cause the killing of a human being. La.R.S. 14:32.1.

Each statute serves to promote vehicular safety in a somewhat different way. Under the DWI statute, an offender is punished for creating a risk of accident, property damage, personal injury or death due to his alcohohcally impaired operation of a vehicle. On the other hand, enforcement of the negligent homicide statute punishes an offender whose criminal negligence causes the death of another, regardless of whether the accident was related to alcohol consumption. Finally, under the vehicular homicide statute an offender is exposed to somewhat more stringent punishment when his operation and his unlawful blood alcohol concentration combine to cause the death of another.

Further support for our interpretation is found in the principles of the common law, in which the origins of Louisiana’s criminal law in general and homicide law in particular are found. La.Act 1805, May 4, § 33; see State v. Moore, 196 La. 617, 199 So. 661 (1940). It is axiomatic that a crime is punishable in Louisiana only if made so by statute, State v. Vacarro, 200 La. 475, 8 So.2d 299 (1942), but the historical basis of Louisiana’s criminal law in the common law makes appropriate resort to common law principles for aid in interpreting legislative intent. See State v. Gyles, 313 So.2d 799 (La.1975). At the common law, criminal liability for a killing attached in the following situations: (1) a killing caused by an act committed with the intent to kill or cause bodily harm, which is not excused or justified by other principles of law; (2) a killing caused by criminal negligence, regardless of the actor’s intent; (3) an accidental or unintended killing caused by an unlawful act. 3 J. Stephen, a History of the Criminal Law of England, 20; 4 Blackstone, Commentaries, 176. There could be no conviction for homicide without proof of a causal link between the killing and actor’s culpable conduct. W. LaFave and A. Scott, Criminal Law, 534, 596. Vehicular homicide fits neatly within the third category above if the driver’s intoxication impaired driving (the unlawful act) must cause the death; if not, the crime would be an aberration from common law principles.

Consequently, as we construe the statute, it does not contain the unconstitutional features upon which the district court based its decision. For the reasons assigned the judgment of the district court declaring the statute unconstitutional and quashing the bill of information is reversed and the case is remanded for further proceedings.

REVERSED AND REMANDED.

CALOGERO, Justice,

concurring.

While I agree that the trial judge’s declaring the statute unconstitutional was incorrect, I hesitate to subscribe fully to this opinion. If the majority is stating that the crime of vehicular homicide is proved simply upon showing that .10 or better alcohol content combined with simple operation of a motor vehicle have caused the death of a human being, I suggest that such interpretation is either ambiguous or wrong. In my view a required additional element must surely be a showing that the .10 or better blood alcohol content has caused, or been accompanied by, at least negligent or substandard operation of the vehicle. Otherwise I cannot quite understand how the .10 or better blood alcohol content in defendant can cause the death of a victim.

      . La.R.S. 14:32.1, as enacted by La.Acts 1983, No. 635, § 1, provides:
      A. Vehicular homicide is the killing of a human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, vessel, or other means of conveyance, whether or not the offender had the intent to cause death or great bodily harm, when:
      (1) The offender is under the influence of alcoholic bever.ages, as determined by chemical tests administered under the provisions of La.R.S. 32:662; or
      (2) When the offender’s blood alcohol concentration is 0.10 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.
      B. Whoever commits the crime of vehicular homicide shall be fined not less than two thousand dollars nor more than five thousand dollars and shall be imprisoned with or without hard labor for not less than two years nor more than five years.
      La.R.S. 14:32.1 was amended subsequent to the time when the instant facts arose. La.Acts 1984, No. 855, § 1.


author: CALOGERO, Justice. MARCUS, Justice

text:
    C.J. CLARK and Lois Clark v. Irving MANUEL, Bonnie Manuel and the Lafayette Association For Retarded Citizens, Inc.
    No. 84-CC-1601.
    Supreme Court of Louisiana.
    Feb. 25, 1985.

      Stephen H. Myers, Davidson, Meaux, Sonnier, & McElligott, Anthony M. Fazzio, Fazzio & Saitha, Lafayette, for defendants-relators.
    Gregory B. Dean, Dean, Lomenick, See-man & Willis, Lafayette, for plaintiffs-respondents.
   CALOGERO, Justice.

In this lawsuit to prevent the use of a residence in Scott, Louisiana by the Lafayette Association of Retarded Citizens, a non-profit corporation, we are called upon to construe a restrictive covenant, applicable to lots in the subdivision in which the residence is located, and to apply the mental retardation law enacted in 1978 and succeeding years.

The Lafayette Association of Retarded Citizens, LARC, leased from Irving and Bonnie Manuel, a residence located on Lot 13 of the Westgate Subdivision in the Town of Scott. LARC intended to establish in the residence a community home for retarded individuals. Lot 13, and all of the other numbered lots in Westgate Subdivision were encumbered with the following building restrictions:

“1. All of the lots located in Westgate Subdivision which are numbered, those being Lots 1 through 53, shall be used exclusively for residential purposes.
“2. No structures shall be erected, altered, placed or permitted to remain on any residential building lot, other than one detached, single family dwelling not exceeding two and one-half stories in height, and a private garage and other out buildings incidental to residential use of the plot.”

C.J. and Lois Clark, who own and reside in a house in the subdivision, secured a restraining order and sought a preliminary injunction to prevent LARC from operating the community home. They complained that LARC’s proposed use of the structure on Lot 13 was in violation of the building restrictions, and that LARC had failed to obtain approval of the site for a community home, as required, they contend, by La. Rev.Stat.Ann. § 28:478(C). The parties agreed that LARC had indeed not sought approval for the site of the community home from the local governing authority, the council of the Town of Scott.

The trial judge, in granting the preliminary injunction, found that LARC’s activities violated the building restrictions which attached to each lot in the subdivision. She did not, therefore, reach the matter of failure to obtain the required governmental approval of the site. The Court of Appeal took the case up on supervisory writs and affirmed the judgment granting the injunction. Their opinion was based upon LARC’s non-compliance with R.S. 28:478(C), and violation of the “building restriction.” R.S. 28:478(C) apparently requires that the local sponsor of a community home for retarded individuals secure site approval from the local governing body. Since LARC did not first seek or secure the required site approval, the home in the subdivision could not, the Court of Appeal

determined, “be considered a community home [and thus a “single family unit”] under LSA-R.S. 28:381(8) []or [28:] 477(1).” Without the benefit of the “single family unit” sanction (R.S. 28:477(1)) which presumably would flow from compliance with R.S. 28:478(C), the Court of Appeal found “the activities of LARC in providing for the residence of individuals not members of a single family unit violates the building restriction, and that the trial court properly issued a preliminary injunction prohibiting such activity.”

We will first address the restrictive covenant which applies to the Manuels’ Lot 13 in Westgate Subdivision. Restrictive covenants are, of course, to be construed strictly. These particular restrictions provide only that (1) with respect to use, the lots are to be used for residential purposes and (2) with respect to the erection of structures on each lot, none shall be erected “other than one detached, single family dwelling not exceeding two and one-half stories in height, and a private garage and other out buildings incidental to residential use of the plot.” Relative to the latter, erection of structures, the parties concede that the Manuels’ house on lot 13, as erected or modified, is indeed one detached dwelling not exceeding two and one-half stories in height, etc., and that the structure is one which all would agree is built to accommodate single family living, as is commonly perceived. And, although the restrictive covenant prevents erection of any type structure other than a “single family dwelling,” there are no limitations upon the number of permitted occupants of such dwelling nor any requirement that the occupants be related. With respect to the former, that is, use for residential purposes, the covenant’s limitation is merely that the lots be used for residential purposes alone. LARC’s community home for mentally retarded persons is surely a residential purpose. That the home’s occupants are being afforded training so as to live in a community rather than institutional environment, and so as to adjust to residential living, does not convert that use to one which is commercial or nonresidential. The occupants’ training, to function in the community and in a residential environment, is not unlike that afforded children in the residential settings which constitute their and their parents’ homes. Webster defines “reside” as “to dwell permanently or continuously” and “residence” as “the act or fact of dwelling in a place for some time.” The individuals to be placed in this community home by LARC intend to remain for an indefinite period, i.e., on a permanent basis, and would clearly be residents, those “who reside in a place,” under the criteria provided by Webster. Webster’s New Collegiate Dictionary 977 (1980).

The restrictive covenant which attaches to Lot 13, Westgate Subdivision, is not violated by LARC’s proposed use of the property which they have leased from the Manuels.

The foregoing resolves one principal issue in the case. The restrictive covenant is simply not offended by LARC’s proposed use of the lot and structure thereon. The lot will be used for a residential purpose. And no structure has been erected, altered, placed or permitted to remain other than “one detached single family dwelling ...”

Respondents rely, however, upon another argument to bar LARC’s proposed use of the residence. They point to R.S. 28:478(C), which seems to require that a party seeking a license from DHHR to open a community home must first secure site approval from the local governing authority,' in this instance, the council of the town of Scott, Louisiana. This subsection is located in Chapter 5, “Group Home for Handicapped Persons Act,” of Title 28 of the Revised Statutes.

Louisiana’s statutory provisions concerning mental retardation have been adopted by several enactments commencing in 1978. As amended, Chapters 4 and 5 now comprise this state’s attempt to develop a system to provide services, including non-institutional living options for mentally handicapped individuals.

Chapter 4, entitled Mental Retardation and Developmental Disability Law, was enacted by 1978 La.Acts No. 680 § 2, and was amended on several occasions before it was amended and reenacted by 1982 La.Acts No. 538. The reenacted statute was itself amended by 1983 La.Acts No. 659 § 1 in order to make the entire chapter applicable to developmental disability as well as to mental retardation. In providing a system of services to the mentally retarded or developmentally disabled, Chapter 4 proposes to protect the basic human rights of such Louisiana residents. La.Rev.Stat.Ann. § 28:380(B). Among the rights expressly granted by the legislature in this chapter is the right “[t]o live in the least restrictive residential living option appropriate to [the retarded person’s] individual needs and abilities, including ... community homes.” § 390(B)(1).

Chapter 4 of Title 28, it has been suggested, was in large measure a legislative reaction to the mandates of United States District Court Judge Alvin B. Rubin in Gary W. v. State of La., 437 F.Supp. 1209 (E.D.La.1976). In that decision, the court required the state to develop treatment plans for handicapped children placed in Texas institutions by direct action, or with financial support from, the State of Louisiana. In devising each treatment program, the state representative was required to consider the “least restrictive” alternative for that child, although it was not required that there be developed an entire new system of facilities to implement this plan. Chapter 4 of Title 28 is the state’s attempt to create a system of care and treatment for its mentally retarded citizens.

In 1981, in the exercise of its police power, the Louisiana Legislature passed Act 892, effective August 2, 1981, in order, as the title of the act provides, to promote “community facilities for the care of mentally and physically handicapped persons, to allow small community homes to be permitted in all residential districts zoned for multiple family dwellings, and otherwise to provide with respect thereto.”

A House Committee report on Senate Bill 596 (later, Act 892) indicates that extensive hearings, conducted in 1980-81 on the subject of group homes, determined that legislation was needed to facilitate the establishment of such living arrangements for handicapped persons. At that time, only 235 beds were available in the entire state to enable handicapped citizens to live in their own communities, and these were limited to the cities of Shreveport, New Orleans, Baton Rouge and Lake Charles, according to testimony presented at the June 26, 1981 meeting of the House Committee on Health and Welfare. While it is not especially pertinent to the narrow legal question we resolve in this opinion, we deem it worth noting that one effort to amend the bill, to make clear that insofar as the state’s policy is concerned local zoning requirements would remain paramount, failed. It was defeated when opponents argued that certain groups would do “everything possible” to keep a group home out of their neighborhoods (presumably including bringing pressure to bear on those responsible for designing and enforcing zoning ordinances).

Act 892 of 1981, which became Chapter 5 of Title 28 (“Group Home for Handicapped Persons Act”) was designed primarily if not exclusively to promote community homes. The act became La.Rev.Stat.Ann. 28:475-478. It provides in full:

§ 475. Short title
This Chapter shall be known and may be cited as the Group Home for Handicapped Persons Act.
§ 476. Declaration of policy
The legislature hereby declares that it is the policy of this state as declared and established in this Title and in the mental retardation law and in the mental health law that mentally and physically handicapped persons are entitled to live in the least restrictive environment in their own community and in normal residential surroundings and should not be excluded therefrom because of their disabilities. The legislature further declares that the provisions of this Chapter are intended to secure to all of the citizens of this state the right to individual dignity as provided in Article I, Section 3 of the Constitution of Louisiana and to protect the rights and promote the happiness and general welfare of the people of this state. To that end, the legislature hereby declares that the provisions of this Chapter are an exercise of the police power reserved to the state by Article I, Section 4 and Article VI, Section 9(B) of the Constitution of Louisiana.
§ 477. Definitions
As used in this Chapter, unless otherwise clearly indicated, these words and phrases have the following meanings:
(1)“Community Home” means a facility certified, licensed, or monitored by the Department of Health and Human Resources to provide resident services and supervision to six or fewer handicapped persons. Such facility shall provide supervisory personnel in order to function as a single family unit but not to exceed two live-in persons.
(2) “Department” means the Department of Health and Human Resources.
(3) “Handicapped Person” means any person who has a physical or mental impairment which substantially limits one or more of the following major life activities: 1) self care; 2) receptive or expressive language; 3) learning; 4) mobility; 5) self direction; 6) capacity for independent living; 7) economic self sufficiency. This definition shall not include persons handicapped by reason of drug abuse or alcohol abuse, nor shall it apply to handicapped persons currently under sentence or on parole from any criminal violation or who have been found not guilty of a criminal charge by reason of insanity.
§ 478. Promotion of community based homes
A. In order to achieve uniform statewide implementation of the policies of this Title and of those of the mental retardation law and of the mental health law, it is necessary to establish the statewide policy that community homes are permitted by right in all residential districts zoned for multiple-family dwellings.
B. The department shall establish appropriate standards with interpretative guidelines and establish monitoring procedures. In no case shall a community home be placed within a one thousand foot radius of another community home.
C. The local sponsor shall notify the local governing authority of his intent to file an application to the department to open a community home. In any area over which a local planning commission has jurisdiction the site selection shall first be submitted to the local planning commission, which shall recommend approval or disapproval of the site to the local governing authority. The local governing authority shall then affirm or reverse the decision of the planning commission by a majority vote of its entire membership, within forty-five days of the date of the original notification to the local planning commission. In any area in which there is no local planning commission, the local governing authority shall approve or disapprove the site within forty-five days from the date of the original notification to the local governing authority. Whenever the local governing authority has disapproved the site, the local sponsor and the department may develop an alternate site selection for the community home which is acceptable to the local sponsor, the local governing authority, and the department.

As amended and passed by the Legislature, Section 478 might be viewed as ambiguous.

Section A establishes the statewide policy that community homes (facilities licensed by DHHR to provide residential services and supervision to six or fewer handicapped persons, and not more than two live-in persons functioning as a single family unit) “are permitted by right in all residential districts zoned for multiple family dwellings.”

Then Section C, apparently applicable to community homes in residential districts zoned for multiple family dwellings (to which reference is made in Section A), as well as to community homes in residential districts zoned more restrictively, or less restrictively than for multiple family dwellings, as well as to community homes in areas of the state without zoning restrictions at all, recites essentially that local sponsors shall notify “the local governing authority” of an intent to file an application to DHHR to open a community home, and thereafter secure approval of their chosen site from the local governing authority, with prior submission to the local planning commission (except where there is no local planning commission).

It is not patently clear that a local sponsor whose community home is in a residential district zoned for multiple family dwellings, where “permitted by right” (R.S. 28:478(A)), must apply for approval of their site from the local governing authority, under R.S. 28:478(C). Presumably, however, even that local sponsor must apply for and secure site approval from the local governing authority. Constitutionally (La. Const.1974 art. VI, § 17), it is the local governmental subdivisions which are authorized to “adopt regulations for land use zoning and historic preservation....” And the statute, R.S. 28:478(A), merely establishes (the words are “it is necessary to establish”) “a statewide policy,” (“that community homes are permitted by right in all residential districts zoned for multiple family dwellings.”) (emphasis provided)

In any event in order to decide the case before us, we have to interpret these provisions.

As applied to a “local sponsor” whose chosen site is in a zoned district, the applicant must secure site approval from the local governing authority, whether the applicable zoning ordinance does or does not bar a “community home” in the particular zoned area.

And, as applied to a local sponsor like LARC whose chosen site is in an unzoned district (in the town of Scott), the statute requires an applicant whose site has no zoning restrictions to secure the approval of the local governing authority, which, given the right statutorily under 28:478(C) to approve or disapprove, presumably has absolute discretion in the matter.

As the statute’s title recites, Act 892 of 1981 was designed to promote community facilities for the care of mentally and physically handicapped persons. In fact, however, the statute, at R.S. 28:478(C) imposes a restriction on the local sponsor/DHHR applicant desiring to open a community home. Without applicable zoning limitations and free of restrictive covenants, the local sponsor like LARC in this case finds itself under the statute subject to the discretionary approval (or disapproval) of a local governing authority.

Recognizing the impediment presented by R.S. 28:478(C), LARC and the Manuels argue that R.S. 28:478(C) was abrogated, or effectively repealed by R.S. 28:381(8)’s defining “community home,” in 1982. (R.S. 28:381(8) appears in Chapter 4, “Mental Retardation and Developmental Disability Law,” and forms part of Act 538 of 1982.) This definition establishes that community homes of six or fewer mentally retarded individuals “shall be considered single family units.” The statute came after the enactment of Chapter 5 with its R.S. 28:478(C) in 1981, and after the Second Circuit decision in City of West Monroe v. Ouchita Ass’n for Retarded Children, Inc., 402 So.2d 259 (La.App. 2d Cir.1981). Applicants urge that the two statutes are contradictory since R.S. 28:381(8) facilities establishing community homes, while R.S. 28:478(C) permits local governing authorities to veto their establishment discretion-arily and with impunity.

We cannot conclude that the Legislature intended by implication to repeal the provisions of R.S. 28:478(C) passed in 1981, when in 1982 it passed R.S. 28:381(8). Such a conclusion is unwarranted unless there is no way to reconcile the two enactments. The statutes are not irreconcilable. In fact, the definition of community home in R.S. 28:381(8) (“community homes ... shall be considered single family units”) adds little to what had already appeared in R.S. 28:477, a companion provision to R.S. 28:478(C) in Chapter 5. That section (§ 477), passed with R.S. 28:478(C) in 1981, also provides that a community home “function[s] as a single family unit.”

Given that R.S. 28:478(C) is a currently effective statute and that it serves as an impediment to relators in this case, we turn our attention to the contention that it is unconstitutional.

We know of no other owner or lessee of property in this state not adversely affected by zoning restrictions who is similarly required to secure approval of a local governing authority before putting property to a legal use. The Legislature has seen fit, however, to require those who would use property as a community home for mentally retarded persons first to secure approval from the local governing authority before establishing a community home. The Legislature may normally, of course, discriminate in their regulatory enactments. They may not, however, run afoul of the equal protection clauses of the United States and Louisiana Constitutions.

The fourteenth amendment, for an independent constitutional guarantee, commands that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. This guarantee includes all governmental actions which classify individuals for different benefits or burdens under the law. Although the equal protection clause does not reject the government’s ability to classify persons in the creation and application of laws, it does guarantee that the classifications will not be based upon impermissible criteria or arbitrarily used to burden a particular group. The determination of whether a classification can be said to meet the equal protection guarantee depends on the purpose which one attributes to the legislative act and the degree of relationship between the end sought and the group affected. Since it will normally be rare to find a classification which promotes only a narrowly defined end, the conclusion as to whether a statute affecting only a limited class comports with the equal protection clause is largely dependent on what standard of review is to be applied. Generally, these are “rational basis” (is the legislation which creates the classification rationally related to a legitimate state interest?), “means scrutiny” or heightened scrutiny (is it substantially related to an important governmental objective?) or “strict scrutiny” (is it necessary to promote a compelling state interest?) The United States Supreme Court has found that economic classifications and those dealing with general social welfare regulation need only be rationally related to a legitimate governmental objective. Only classifications which infringe upon certain fundamental constitutional rights or classifications which disadvantage “discrete and insular minorities” will be subjected to strict scrutiny. And legislation of this sort will be upheld only if necessary to promote an extremely important or compelling end of government. See J. Nowak, R. Rotunda, J. Young, Handbook on Constitutional Law 515-35 (1978).

In the traditional equal protection analysis the initial determination is whether a given act disadvantages a suspect class or infringes upon a fundamental right. If it does not, then the act need only rationally further some legitimate, articulated state purpose or goal. This level of scrutiny rarely renders an act constitutionally infirm. However, with a finding that a suspect class or fundamental right is involved, an act will frequently fall short of “promoting” a compelling state interest, the strict scrutiny level of review. It is therefore not surprising that courts are reluctant to define as suspect any but the most arbitrary classifications. In fact, only classifications based upon race have been uniformly treated as suspect.

Other classifications, such as those based on gender and illegitimacy have been categorized as quasi suspect and subjected to a “means scrutiny” test, a middle tier between strict scrutiny and rational basis (Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971)), in the assessment of these constitutional considerations. According to the Reed court, “a classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation....”’ Id. at 76, 92 S.Ct. at 254 (quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920)).

A recent United States Fifth Circuit Court of Appeal decision, Cleburne Living Center v. City of Cleburne, Texas, 726 F.2d 191 (5th Cir.1984), has applied a middle tier level of scrutiny to statutes which affect the mentally retarded. In so doing, the court noted that although some district courts have discussed the issue of whether the class of mentally retarded persons is suspect, no other appellate opinion had addressed the issue. In deciding this issue of first impression, the Fifth Circuit examined the several indicia of suspect classes which other courts have identified.

In San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 18, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973), the United States Supreme Court had considered whether

the class is ... saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.

In Plyler v. Doe, 457 U.S. 202, 216-17 n. 14, 102 S.Ct. 2382, 2394-95 n. 14, 72 L.Ed.2d 786 (1982) the United States Supreme Court noted that

[s]ome classifications are more likely than others to reflect deep-seated preju-. dice rather than legislative rationality in pursuit of some legitimate objective. Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law. Classifications treated as suspect tend to be irrelevant to any proper legislative goal.

And, if membership in a minority group is immutable, special protection is more likely afforded the class by the United States Supreme Court. See Parham v. Hughes, 441 U.S. 347, 99 S.Ct. 1742, 60 L.Ed.2d 269 (1979).

In applying these tests to the class of mentally retarded individuals, the Fifth Circuit concluded that they share enough of the characteristics of a suspect class to warrant at least heightened scrutiny. Of significance in their quest for special consideration is the fact that their condition is immutable. It was noted in Cleburne, supra that until the 1970’s admittance into public schools in the United States was universally denied the mentally retarded, and, that, in the first half of this century, an organization sought to eradicate the retarded through euthanasia and compulsory sterilization. As part of this pattern of mistreatment, mentally retarded persons have been segregated in remote, stigmatizing institutions, which has perpetrated the historical misunderstanding of such individuals and led to widespread fears and uncertainty. Further, this group, which has been disqualified from voting in most states, can truly be said to lack political power. The United States Fifth Circuit Court of Appeal concluded that this combination of factors — historical prejudice, political powerlessness, and immutability— calls for heightened scrutiny of any legislation which discriminates against mentally retarded individuals. The classification of mental retardation may well be relevant in some cases, such as the types of school programs to which a child is assigned or the types of employment for which an adult is qualified. The court in Cleburne refused, therefore, to apply the strict scrutiny standard of review. This three judge panel of the United States Fifth Circuit concluded that mentally retarded individuals are a “quasi-suspect” class and that intermediate scrutiny is required for laws discriminating against them.

The logic of the decision in Cle-burne is compelling. Heightened scrutiny is particularly appropriate in a case where, as here, the statute makes it more difficult for this class to enjoy an important right. In the absence of the individual’s own family or a suitable foster home placement, group homes are the principal alternative for community living for the mentally retarded. The availability of such homes is necessary for the development of normal living patterns, and obstacles to the establishment of group homes serve to exclude mentally retarded individuals from the community.

The briefs and lower court opinions have not extensively addressed the state’s objectives in requiring the sponsor of a group home to obtain local approval of the site, while not requiring other owners or lessors to do the same. In the federal case cited above, the City of Cleburne unsuccessfully urged that a zoning ordinance which specifically excluded group homes from the permitted uses in an apartment district had as its objectives the avoidance of undue concentrations of population, the lessening of congestion in the streets, the protection of the health, safety and welfare of the City’s population by protecting the serenity of the neighborhoods and by protecting the neighbors and the retardates from harm. To withstand the heightened scrutiny appropriate for a quasi-suspect class, the government’s classification must both serve an important governmental objective and be substantially related to achieving that objective. Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976). Accepting that such governmental objectives are important, there is no substantial relationship between these purposes or any of them and the restriction on the establishment of group homes imposed by R.S. 28:478(C). R.S. 28:478(C) is irrelevant to concerns about concentrations of population and congestion in the streets. If the occupants were not mentally retarded, the same house with the same number of residents and even with the same number of potential drivers would be a permitted use. Nevertheless, the definitional limitation of community home to six or fewer retarded individuals and two live-in counselors together with the requirement of R.S. 28:478(B) that a community home shall not be placed within a 1000 foot radius of another community home should insure that undue concentrations of population are not created by the location of a community home. And, the state Legislature has recognized that “mental retardation/development disability does not in and of itself pose a threat to the safety and security of a community or the individual_” La.Rev.Stat. Ann. § 28:393(A). We can find no valid objective to this requirement of local approval. We discern no substantial relationship between the restriction on the establishment of group homes for the mentally retarded and any important governmental objective. Since this section cannot withstand scrutiny under the equal protection analysis, we conclude that it is constitutionally infirm.

For the foregoing reasons we find that R.S. 28:478(C) insofar as it denies relators the right to use the Manuels’ property for a community home without prior approval of the governing authority of Scott, Louisiana, violates the equal protection clause of the United States and Louisiana Constitutions, and is thus without force and effect.

Decree

The judgment of the district court granting respondents a preliminary injunction, and the judgment of the Court of Appeal affirming, are reversed and set aside. The petition of plaintiffs is dismissed with prejudice.

PLAINTIFFS’ PETITION DISMISSED WITH PREJUDICE.

MARCUS, J., concurs and assigns reasons.

DENNIS, J., concurs with reasons.

MARCUS, Justice

(concurring)

I concur with the majority that the proposed use of the land is not in violation of the subdivision’s restrictive covenants which should be strictly construed. The only restriction on use is that the lots be used exclusively for residential purposes.

I further concur with the majority that La.R.S. 28:478(C) is unconstitutional as applied in this case. The land at issue is unzoned. No other person is required to obtain the approval of the local governing authority before using the land. There is no legitimate state interest for singling out mentally and physically handicapped persons and requiring them to obtain approval.

      . Under the authority of La.Rev.Stat.Ann. § 24:253.1, the definition of "community home,” R.S. 28:381(5) was redesignated R.S. 28:381(8) by the Louisiana Law Institute, upon their incorporating the subsection in the Louisiana Revised Statutes of 1950 as amended.

      . Munson v. Berdon, 51 So.2d 157 (La.App. 1st Cir. 1951). The Munson court further concluded that "all doubts [are to be] resolved in favor of free use of property and against restrictions.”

      .As in City of W. Monroe v. Ouachita Ass’n for Retarded Chn., 402 So.2d 259 (La.App.2d Cir. 1981), the entrances, living room, dining room, kitchen, laundry and other aspects of the house will be for common usage. Such an arrangement contrasts with a boarding house, for instance, where certain rooms may be cordoned off or separated, for entirely private and independent occupant use.

      . In fact, the listing of rights in La.Rev.Stat.Ann. 28:390(B) adheres closely to the language of the Gary W. decision.

      . La.Rev.Stat.Ann. § 28:476 specifically states , that "the provisions of this Chapter are an exercise of the police power reserved to the state by Article I, Section 4 and Article VI, Section 9(B) of the Constitution of Louisiana.”

      .We do not in this opinion determine that a local zoning ordinance must fall in the face of state legislative policy that encourages the establishment of community homes.

      . Section B directs that no community home shall be placed within a one thousand foot radius of another community home and that DHHR “shall establish appropriate standards with interpretative guidelines and establish monitoring procedures."

      . There is no suggestion in this record that the property at issue is in a zoning district. This case involves only purported violations of a restrictive covenant applicable to lots within the Westgate Subdivision of Scott, Louisiana.

      . In the City of West Monroe, the Second Circuit held that a group home, composed of six mentally retarded adults and two houseparents, was a one family dwelling under the zoning ordinance of the City of West Monroe there under consideration.

      . Establishing a “community home” is not only a legal endeavor, but one which is in keeping with the policy and laudatory aims of the state as embodied in its legislative acts. In La.Rev. Stat.Ann. § 28:390(B)(1), the Legislature granted to every mentally retarded individual the right “to live in the least restrictive residential living option appropriate to his individual needs and abilities,” which specifically includes community homes. This policy was reiterated in R.S. 28:476, within Chapter 5, as follows:
      it is the policy of this state as declared and established in this Title and in the mental retardation law and in the mental health law that mentally and physically handicapped persons are entitled to live in the least restrictive environment in their own community and in normal residential surroundings and should not be excluded therefrom because of their disabilities.
      And, R.S. 28:478, entitled “Promotion of community based homes,” establishes a statewide policy of permitting community homes by right in certain zoned districts. Thus, it cannot be denied that the creation of community based homes for use by its mentally retarded citizens is, besides being legal, favored by the state of Louisiana.

      . United States v. Carotene Product Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783 n. 4, 82 L.Ed. 1234 (1938).

      . On July 6, 1984, both a rehearing and a rehearing en banc were denied by the Fifth Circuit. 735 F.2d 832 (5th Cir.1984). The United States Supreme Court has, however, agreed to take the case up. -U.S.-, 105 S.Ct, 457, 83 L.Ed.2d 354 (1985).

      . Although euthanasia was rejected, thirty-two states have had statutes providing for the sterilization of retarded individuals. Cleburne Living Center v. City of Cleburne, Texas, 726 F.2d 191, 197 (5th Cir.1984) (citing Penn. Assoc. of Retarded Chn. v. Penn., 343 F.Supp. 279, 294 (E.D.Pa. 1972)).

      . Note the Louisiana Legislature’s strong public policy expression at R.S. 28:476. When the Legislature declared it was the public policy of the State of Louisiana that mentally handicapped persons are entitled to live in the least restrictive environment “in their own community and in normal residential surroundings,” they further asserted that those provisions are intended to secure to all citizens the right to individual dignity as provided in Art. 1, Section 3 of the 1974 Constitution.

        .See Gary W. v. State of La., 437 F.Supp. 1209, 1215 (E.D.La.1976).

      . Plaintiffs brief points out that according to La.Rev.Stat. 28:478(A) the state’s objective in implementing the mental retardation and mental health law is to achieve statewide uniformity. Such an objective does not seem likely to be achieved by permitting local governing bodies to make the ultimate decision as to whether or not a community home can be located at a particular site.


author: MARCUS, Justice.

text:
    Brenda Ann KEELEN v. STATE of Louisiana, DEPARTMENT OF CULTURE, RECREATION AND TOURISM.
    No. 84-C-1710.
    Supreme Court of Louisiana.
    Feb. 25, 1985.

      Allain F. Hardin, New Orleans, for applicant-plaintiff.
    William J. Guste, Jr., Atty. Gen., A. Kell Mclnnis, III, Asst. Atty. Gen., La. Dept, of Justice, for respondent-defendant.
   MARCUS, Justice.

Brenda Ann Keelen filed suit against the State of Louisiana through the Department of Culture, Recreation and Tourism for the wrongful death of her eight-year-old son, Larry Piker. The child drowned in a swimming pool in Fountainbleu State Park in St. Tammany Parish on July 4, 1979. The park is owned by the State and is maintained and operated by the Office of State Parks, Department of Culture; Recreation and Tourism. The State filed a motion for summary judgment alleging that it was immune from suit by authority of La.R.S. 9:2791 and La.R.S. 9:2795. The trial judge granted the motion and dismissed Keelen’s suit at her cost. The court of appeal affirmed. We granted certiorari to review the correctness of that decision.

The issues presented for our consideration are: (1) whether La.R.S. 9:2791 and 2795 apply to the State and its political subdivisions; and (2) whether the statutes confer immunity from liability for a drowning in a swimming pool at Fountainbleu State Park. Because we hold that the statutes do not confer immunity from liability for a drowning in a swimming pool, we need not decide the question of whether the statutes apply to the State and its political subdivisions.

Our task is to determine the intent of the legislature and the scope of immunity granted by the statutes. In so doing, we are guided by the principle that the most effectual way of discovering the true meaning of a law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the legislature to enact it. La.Civ. Code art. 18. Where the words of a law are dubious, their meaning may be sought by examining the context with which the ambiguous words, phrases and sentences may be compared, in order to ascertain their true meaning. La.Civ.Code art. 16. We further note that the statutes in question limit the rights of plaintiffs to bring tort actions; as such, they are in derogation of a common right and must be strictly construed. American Creosote Works v. City of Natchitoches, 182 La. 641, 162 So. 206 (1935); Richard & Gaudet v. Housing Authority, City of Lafayette, 323 So.2d

168 (La.App. 3d Cir.1975), writ denied 326 So.2d 337 (La.1976).

At the outset, we note that La.R.S. 9:2791 and 2795 relate to the same subject matter and should be read in pari materia. Arata v. Louisiana Stadium and Exposition District, 254 La. 579, 225 So.2d 362 (La.1969); Malone v. Cannon, 215 La. 939, 41 So.2d 837 (La.1949); La.Civ.Code art. 17. La.R.S. 9:2791 refers to the liability of an owner or occupant of property not used primarily for commercial recreational purposes, while La.R.S. 9:2795 deals with the liability of one owning property used primarily for recreational purposes. Foun-tainbleu State Park would appear to fall in the latter category. Both statutes contemplate that the limitation of liability will not be granted to commercial recreational facilities which are run for profit. Pratt v. State, 408 So.2d 336 (La.App. 3d Cir.1981), writ denied 412 So.2d 1098 (La.1982); Thomas v. Jeane, 411 So.2d 744 (La.App. 3d Cir.1982). ' An affidavit' submitted in support of the State’s motion for summary judgment establishes that Fountainbleu State Park does not earn a profit.

We must now determine whether the statutes create immunity when injury is incurred in a swimming pool in Fountain-bleu State Park. Prior to the enactment of La.R.S. 9:2791, landowners were generally exposed to liability for injuries sustained on their property. Liability of landowners was modified in 1964 when La.R.S. 9:2791 was effected in order to encourage the opening of lands for recreational purposes. La.R.S. 9:2795 was subsequently passed in 1975 with similar motives. There is nothing in either statute to suggest that in enacting these statutes, the legislature intended to extend immunity to owners of all property without limit.

The statement of purpose of La.R.S. 9:2795 is contained in 1975 La.Acts, No. 615, § 1 and provides:

The purpose of the act is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.

The use of the language “land and water areas” is suggestive of open and undeveloped expanses of property. Furthermore, the type of recreational activities enumerated in both statutes — hunting, fishing, trapping, camping, nature study, etc. — can normally be accommodated only on large tracts or areas of natural and undeveloped lands located in thinly-populated rural or semi-rural locales. Specification of these types of activities suggests a policy that would encourage landowners to keep their property in a natural, open and environmentally wholesome state. We would stray from this goal were we to construe the statutes to grant a blanket immunity to landowners without regard to the characteristics of their property. Thus, we conclude that the legislature intended to confer immunity upon owners of undeveloped, nonresidential rural or semi-rural land areas. The size, naturalness and remoteness or insulation from populated areas all attribute to the categorization of property as rural or semi-rural.

The existence of some improvements on relatively undeveloped rural or semi-rural property does not change the character of the land so as to deprive its owner of the immunity granted by the statutes. Improvements such as shelters, toilet facilities, fireplaces, etc. are merely conveniences incidental to the use of the land for enumerated recreational activities and do not of themselves take property out of a rural, undeveloped classification. This view is reinforced by the fact that the definitions of “premises” in La.R.S. 9:2791 and of “land” in La.R.S. 9:2795 include “buildings, structures and machinery.”

Examination of the characteristics of the land alone does not end the inquiry into whether the statutes apply to a particular factual situation. The injury-causing condition or instrumentality must also be scrutinized. Again, reference to the types of recreational activities specified in the statutes (hiking, boating, horseback riding, etc.) indicates that the legislature envisioned immunity for landowners who offer their property for recreation that can be pursued in the “true outdoors.” When the injury-causing condition or instrumentality is of the type normally encountered in the true outdoors, then the statutes provide immunity. Conversely, when the instrumentality, whether found in an urban or rural locale, is of the type usually found in someone’s backyard, then the statutes afford no protection.

Given the analysis stated herein, the question of whether Fountainbleu State Park is non-residential, unimproved rural or semi-rural property must be answered by a review of facts not presently before us. Regardless of the answer, however, it is clear that a swimming pool is not the type of instrumentality commonly found in the true outdoors. Rather, swimming pools are most often found in residential backyards. We recognize that “swimming” is included in the list of recreational activities in La.R.S. 9:2795; however, the word should be construed by reference to the context in which it is found. La.Civ. Code art. 16. Such consideration leads to the conclusion that the legislature intended to grant immunity for injuries incurred while swimming in lakes, rivers, ponds or other similar bodies of water. Thus, an injury which occurs in a swimming pool is not subject to a defense of immunity under La.R.S. 9:2791 and 2795. It follows that the State cannot assert these statutes in order to avoid liability in the instant case.

Because the trial court did not properly construe the scope of immunity afforded by La.R.S. 9:2791 and 2795, the court of appeal erred in affirming the trial court’s grant of summary judgment as a matter of law. La.Code Civ.P. art. 966. Accordingly, we must reverse.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed. The motion for summary judgment is denied. The case is remanded to the trial court for further proceedings in accordance with law and the views expressed herein.

DENNIS, J., concurs with reasons.

      . La.R.S. 9:2791 provides:
      Liability of owner or occupant of property not used primarily for commercial recreational purposes
      A. An owner, lessee, or occupant of premises owes no duty of care to keep such premises safe for entry or use by others for hunting, fishing, camping, hiking, sightseeing or boating or to give warning of any hazardous conditions, use of, structure or activities on such premises to persons entering for such purposes. If such an owner, lessee or occupant give permission to another to enter the premises for such recreational purposes he does not thereby extend any assurance that the premises are safe for such purposes or constitute the person to whom permission is granted one to whom a duty of care is owed, or assume responsibility for or incur liability for any injury to persons or property caused by any act of person to whom permission is granted.
      B. This Section does not exclude any liability which would otherwise exist for deliberate and willful or malicious injury to persons or property, nor does it create any liability where such liability does not now exist. Furthermore the provisions of this Section shall not apply when the premises are used principally for a commercial, recreational enterprise for profit; existing law governing such use is not changed by this Section.
      C. The word "premises” as used in this Section includes lands, roads, waters, water courses, private ways and buildings, structures, machinery or equipment thereon.
      La.R.S. 9:2795 provides:
      Limitation of liability of landowner of property used primarily for recreational purposes
      A. As used in this Section:
      (1) "Land” means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty.
      (2) "Owner" means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.
      (3) "Recreational purposes" includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, trapping, swimming, boating, camping, picnicking, hiking, horseback riding, bicycle riding, motorized vehicle operation for recreational purposes, nature study, water skiing, ice skating, sledding, snow mobiling, snow skiing, summer and winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites.
      (4) "Charge” means the admission price or fee asked in return for permission to use lands.
      (5) "Person” means individuals regardless of age.
      B. Except for willful or malicious failure to warn against a dangerous condition, use, structure, or activity, an owner of land, except an owner of commercial recreational developments or facilities, who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:
      (1) Extend any assurance that the premises are safe for any purposes.
      (2) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owed.
      (3) Incur liability for any injury to person or property incurred by such person.
      C. Unless otherwise agreed in writing, the provisions of Subsection B shall be deemed applicable to the duties and liability of an owner of land leased for recreational purposes to the federal government or any state or political subdivision thereof or private persons.
      D. Nothing in this Section shall be construed to relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this Act to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care.

      . 454 So.2d 147 (La.App. 1st Cir.1984).

      . 459 So.2d 527 (La.1984).

      . While our research yields little jurisprudence interpreting recreational use immunity statutes that have been enacted in several states, we take guidance from the courts of New Jersey which have construed a similar statute, N.J.S.A. 2A:42A-2 et seq. Compare Harrison v. Middlesex Water Co., 80 N.J. 391, 403 A.2d 910 (N.J. 1979) (no immunity for drowning in reservoir located on improved tract in highly populated suburban area); Boileau v. DeCecco, 125 N.J.Super. 263, 310 A.2d 497 (N.J.Super.1973), aff’d, 65 N.J. 234, 323 A.2d 449 (1974) (no immunity for drowning in backyard swimming pool located in residential area); Primo v. City of Bridgeton, 162 N.J.Super. 394, 392 A.2d 1252 (N.J.Super. 1978) (no immunity for injury on slide in municipal park); with Labree v. Milville Manufacturing, Inc., 195 N.J.Super. 575, 481 A.2d 286 (N.J.Super.1984) (immunity for injury in lake located in undeveloped, thinly populated rural area); Magro v. Vineland, 148 N.J.Super. 34, 371 A.2d 815 (N.J.Super. 1977) (immunity for injury when plaintiff struck bottom of pond located on rural, undeveloped land); Odar v. Chase Manhattan Bank, 138 N.J.Super. 464, 351 A.2d 389 (N.J.Super.1976), certif. denied, 70 N.J. 525, 361 A.2d 540 (1976) (immunity for drowning in a pond located on rural, non-residential land).