Anderson v. Union Elec. Co.

• Decision Date: 16 June 2015
• Docket Number: No. SC 94372,SC 94372
• Citation: 463 S.W.3d 783
• Parties: Angela Anderson, Appellant, v. Union Electric Company, Respondent.
• Court: Missouri Supreme Court

463 S.W.3d 783

Angela Anderson, Appellant

v.Union Electric Company, Respondent.

No. SC 94372

Supreme Court of Missouri, en banc .

Opinion issued June 16, 2015

Anderson was represented by Kevin J. Davidson, David M. Zevan and Rachel L. Roman of Zevan & Davidson Law Firm LLC in St. Louis, (314) 588–7200.

Union Electric was represented by Jeffery T. McPherson, Thomas B. Weaver, James J. Virtel and Karen A. Baudendistel of Armstrong Teasdale LLP in St. Louis, (314) 621–5070.

Opinion

Paul C. Wilson, Judge

Angela Anderson (“Anderson”) sued Union Electric Company (“UE”) for wrongful death after her two children drowned in the Lake of the Ozarks. The trial court dismissed the petition on the ground that UE is immune from Anderson's claims under the Recreational Use Act, §§ 537.345 to 537.348, RSMo 2000 and Supp. 2013 (the “RUA”). This judgment is affirmed.

Background

The Lake of the Ozarks (the “Lake”) is the impoundment created by Bagnell Dam, and both the Lake and the dam are owned by UE. The Lake extends more than 90 miles up the Osage River riverbed. It has a surface area of more than 55,000 acres and a shoreline of more than 1,100 miles. Even though UE constructed Bagnell Dam to generate hydroelectric current for its customers, thousands of area landowners and millions of visitors each year enjoy the Lake's scenic beauty and recreational allure.

Anderson alleges that UE does not allow those who own land along the Lake's shore to build, maintain, or use docks or other improvements extending onto or over the Lake unless they obtain a permit from UE. According to Anderson, this permit program allows UE to impose and enforce various requirements for these improvements, including requirements regulating the manner in which landowners may supply electricity to their docks. In connection with the issuance and enforcement of these permits, Anderson alleges that UE charges various fees, including a “use fee.”

Anderson and her husband own real estate adjoining the Lake. She alleges that the property “was serviced by a lakeside dock” and that the “placement, maintenance and use [of Anderson's dock] was the subject of fees charged by and paid to” UE. The Andersons chose to supply electric power to their dock but failed to protect that supply with ground fault interrupt (“GFI”) devices at or above the seawall to prevent injury in the event of an electrical fault. Anderson alleges that, prior to the death of her children, UE did not warn dock owners about the risks of not using such GFI devices or require dock owners to install these devices as a condition of obtaining a dock permit.¹

On July 4, 2012, Anderson alleges that her children were “swimming in the vicinity of the Anderson Dock when they encountered stray electrical current.” She alleges that this “stray current” caused the children's death from drowning, electrocution, or both. In addition, Anderson alleges UE was negligent in one or more of the following respects:

• UE failed to “adequately inspect the Anderson dock to ensure adequate ground fault interrupter protection;”

• UE failed to include ground fault interrupter protective devices at or above the seawall as a precondition to dock permitting;

• UE failed to warn dock owners “including Brian and Angela Anderson, of the need for ground fault interrupter protective devices at or above the dock seawalls;” and

• UE failed to warn dock owners along the Gravois arm of anticipated increase in wear and tear on docks as a consequence of the permitting of the [nearby] restaurant property.

In conclusion, Anderson alleges that—as a “direct and proximate” result of one or more of the foregoing negligent acts or omissions—“stray current was caused to enter the water in the vicinity of the Anderson dock,” killing Anderson's children.²

UE moved to dismiss Anderson's petition under Rule 55.27(a)(6) on the ground that it is immune from such claims under the RUA. The circuit court agreed, finding: “Pursuant to R.S.Mo. § 537.346, Ameren ‘owes no duty of care to any person who enters on the land without charge to keep his land safe for recreational use or to give any general or specific warning with respect to any natural or artificial condition, structure, or personal property thereon.’ ” Anderson appealed the judgment dismissing her petition. Following an opinion in the court of appeals, this Court transferred the matter and assumed jurisdiction over the appeal. Mo. Const. art. V, § 10.

Analysis

When a petition is dismissed under Rule 55.27(a)(6) for failure to state a claim upon which relief may be granted, the standard of review is de novo. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). The appellate court reviews the petition to determine if the facts alleged meet the elements of a recognized cause of action. Foster v. State, 352 S.W.3d 357, 359 (Mo. banc 2011). If the dismissal is justified on any ground alleged in the motion, however, the judgment will be affirmed. Id. Finally, when a landowner is entitled to immunity under the RUA, the trial court has no discretion and must dismiss the petition under Rule 55.27(a)(6). State ex rel. Young v. Wood, 254 S.W.3d 871, 872 (Mo. banc 2008).

UE's motion to dismiss is based solely on the RUA and the immunity provided in section 537.346. “The [RUA] creates tort immunity for landowners who open their land to the public free of charge for recreational use. The purpose of the act is to encourage the free use of land for recreational purposes in order to preserve and utilize our natural resources.” Foster v. St. Louis County, 239 S.W.3d 599 (Mo. banc 2007) (internal citations and quotation marks omitted). Section 537.346 provides:

Except as provided in sections 537.345 to 537.348, and section 537.351, an owner of land³ owes no duty of care to any person who enters on the land without charge to keep his land safe for recreational use or to give any general or specific warning with respect to any natural or artificial condition, structure, or personal property thereon.

Under this section, UE is immune from any claim that is: (a) premised on its status as the owner of the Lake; and (b) based on its alleged failure to keep the Lake safe for recreational use and/or its failure to warn recreational users of the risks associated with any natural or artificial condition, structure, or personal property on the Lake. Young, 254 S.W.3d at 873. Anderson does not contest that her claims are within the scope of this immunity under the RUA. First, her claims are premised solely on UE's status as the owner of the Lake, i.e., the “land” on (or in) which the children were killed. Second, the only acts of negligence alleged by Anderson are based on UE's failure to keep the Lake safe (i.e., free of “stray current”) and/or UE's failure to warn Anderson or her children of the risks created by an artificial condition (i.e., that the absence of seawall GFI devices could result in “stray current” entering the Lake in the vicinity of Anderson's dock).

Instead of arguing that her claims are not within the scope of the immunity created by the RUA, Anderson argues that UE does not qualify for immunity under section 537.346 because her children did not “enter[ ] on the land without charge[.]” Anderson contends that the “use fee” she paid to UE for her dock permit constitutes a “charge” within the meaning of section 537.346 and, therefore, UE is not entitled to immunity under the RUA. The Court rejects this argument.

The fees paid in connection with the Anderson's dock permit are not a “charge” as that word is used in section 537.346. Instead, “charge” is defined as:

the admission price or fee asked by an owner of land or an invitation or permission without price or fee to use land for recreational purposes when such invitation or permission is given for the purpose of sales promotion, advertising or public goodwill in fostering business purposes.

§ 537.345(1) (emphasis added).⁴

In Wilson v. United States, 989 F.2d 953 (8th Cir. 1993), the Eighth Circuit held that immunity under Missouri's RUA applied even though the injured boy scout was required to pay a $2 fee to stay on Fort Leonard Wood property overnight. Id. at 957. The court held that this overnight fee was not a “charge” as defined in section 537.345(1) because it “was not charged to members of the public for entry on to the land or for use of the land.” Id. (internal citation and quotation marks omitted). Instead, the court noted that the scouts “could have used Fort Leonard Wood without making this $2.00 payment if they had chosen not to stay overnight.” Id. Accordingly, Wilson concludes that the “only way to avoid inconsistent application of the Act ... is to interpret the word ‘charge’ as an actual admission price paid for permission to enter the land at the time of its use for recreational purposes.” Id. (quoting Genco v. Connecticut Light and Power Co., 7 Conn.App. 164, 508 A.2d 58, 62 (1986) (applying similarly worded recreational immunity act and definitions)) (emphasis in Wilson ). See also Foster, 239 S.W.3d at 601 (even though St. Louis County charged fees for the use of certain picnic facilities in the park, it did not charge anyone—including those intending to picnic—an “admission fee” to enter the park).

Here, Anderson does not allege that the fees she paid to UE in connection with her dock permit were an “admission fee” paid to obtain UE's permission to enter the Lake. Like the rest of the public, Anderson concedes that she and her children were free to enter the Lake as often as they wished without paying an “admission fee” to UE. The “use fee” Anderson paid to obtain a permit for the dock does not constitute a “charge” under section 537.346 because it is in no sense an “admission fee” as used in the definition of “charge” set out in section 537.345(1).

Anderson argues that the dock permit fees constitute a “charge” because the children entered the Lake from Anderson's dock. There is no basis in the statute, however, to hold that UE's immunity under the RUA...