Bingaman v. Kansas City Power & Light Co., 92-3139

• Decision Date: 08 July 1993
• Docket Number: No. 92-3139,92-3139
• Citation: 1 F.3d 976
• Parties: Rilda I. BINGAMAN, Individually and as Administratrix of the Estate of William L. Bingaman, Deceased, Plaintiff-Appellant, v. KANSAS CITY POWER & LIGHT COMPANY, a Missouri Corporation; and Kansas Gas and Electric Company, a West Virginia Corporation, Defendants-Appellees. Kansas Department of Wildlife And Parks, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 976

1 F.3d 976

Rilda I. BINGAMAN, Individually and as Administratrix of the Estate of William L. Bingaman, Deceased, Plaintiff-Appellant, v.KANSAS CITY POWER & LIGHT COMPANY, a Missouri Corporation and Kansas Gas and Electric Company, a West Virginia Corporation, Defendants-AppelleesKansas Department of Wildlife And Parks, Amicus Curiae.

No. 92-3139.

United States Court of Appeals Tenth Circuit.

July 8, 1993.

David A. Hoffman(Donald W. Vasos and Stephen G. Dickerson with him on the briefs), Vasos, Kugler & Dickerson, Kansas City, KS, for plaintiff-appellant.

J. Michael Grier(James M. Warden and Diana D. Moore with him on the brief), Blackwell Sanders Matheny Weary & Lombardi, Overland Park, KS, for defendants-appellees.

Before SEYMOUR, RONEY, ^* and MOORE, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

PlaintiffRilda Bingaman appeals the district court's summary judgment dismissal of her diversity-based wrongful death action.Bingaman v. Kansas City Power & Light Co., No. CIV. A. 88-2349-V, 1992 WL 81981(D.Kan.Mar. 18, 1992).She contends the court erroneously concluded defendants were immune from liability under the Kansas Recreational Use Statute(KRUS), Kan.Stat.Ann. Secs. 58-3201 to -3207 (1983& Supp.1992), which provides limited immunity to landowners who make their land available for public recreational use.We affirm in part and reverse in part.¹

I.

DefendantsKansas City Power & Light Company and Kansas Gas and Electric Company jointly own and operate the La Cygne Generating Station, a multi-unit electric generating facility in Kansas.They also own La Cygne Lake, the reservoir on which the power plant is situated, and the place where plaintiff's husband drowned.

At approximately 6:00 a.m. on July 2, 1986, Mr. Bingaman left his home to go to La Cygne Lake, where he often fished.Around noon, his capsized boat was found floating at the base of a weir located near the end of a discharge canal which runs parallel to the eastern shore of the lake.Although Mr. Bingaman's body was found the next day floating in the lake northwest of the weir, it appears he drowned in the weir.²

Plaintiff subsequently brought this action, seeking compensatory and punitive damages for defendants' alleged "negligence, or in the alternative, their malicious, wilful, wanton or recklessly indifferent conduct" in failing "to remove, correct, guard or warn against the unreasonably dangerous condition at the warm water discharge weir" which caused Mr. Bingaman's death.In their joint answer brief, defendants raised the KRUS as a complete defense to plaintiff's suit, claiming they were immune from liability as private landowners who had allowed the public to use their land for recreational purposes.The district court granted defendants' motion for summary judgment, and plaintiff appealed.

The central issue before us is whether the area in which Mr. Bingaman drowned was public recreational land within the meaning of the KRUS.Before resolving this issue, however, we must first review the broader context in which the drowning occurred, particularly as it relates to ownership of and control over the lake.

In 1968, after purchasing several tracts of land in Linn and Miami Counties, Kansas, defendants built a dam across North Sugar Creek, thereby creating La Cygne Lake.Defendants' power plant is located northeast of the dam, which forms the southern shore of the lake.³Along the eastern shore of the lake, defendants built a warm water discharge canal and canal dike running from the power plant to a point approximately two and a half miles north of the plant.The discharge canal carries cooling water which has circulated through the power plant's condensers to the northern part of the lake.

Approximately 150 feet south of where the discharge canal empties into the lake, defendants constructed a weir to keep a water seal on the cooling water discharged from the plant's condenser and to prevent the mass migration of fish upstream and into the condenser.⁴Just over a mile north of the power plant, between the plant and the weir, a canal pond approximately three quarters of a mile long juts out from the east side of the canal.The warm water discharge canal and weir are integral components of defendants' power plant.

In the late 1960s, defendants and the Kansas Fish and Game Commission⁵ began discussing whether the lake and surrounding land could be opened for public recreational use.During negotiations, the Commission sought to gain public access to the entire lake, particularly the warm water discharge canal and canal pond.However, in November 1976, defendants informed the Commission that they"wanted no trespassing from the west end of the dam around the lake east and north to a point just beyond the weir on the east side."

On June 23, 1978, defendants and the Commission entered into an Easement Grant and Agreement (Easement Agreement) according the Commission a thirty-year public use/wildlife management easement over portions of La Cygne Lake.As described in Schedule D of the Easement Agreement, Easement Area II encompassed the discharge canal and weir.

However, portions of the lake designated as Easement Area II were subject to special terms and conditions.Specifically, Paragraph 4(a) of the Easement Agreement provided:

(a) The dam and dike structures shall remain the full responsibility of the [defendants] and they shall not be limited in any way in the maintenance or reconstruction of said facilities.With respect to the use of both sides of the discharge canal dike and the canal pond waters that are North of the center line of Sections 28and27, the Commission may permit access to same only if the Commission installs and maintains devices to clearly mark and prevent public entry into the canals and other areas deemed hazardous.

(emphasis added).

Thus, under that provision of the Easement Agreement, defendants retained full responsibility for the discharge canal and weir.More generally, defendants exercised a substantial degree of control over the entire land mass affected by the Easement Agreement, as compared to the Commission's "very limited" authority.However, the Commission did enforce state boating laws, including barring boaters from restricted areas.

Sometime before the lake was opened to the public, defendants installed three sets of "exclusion warning buoys" along the eastern side of the lake.First, at the end of the discharge canal north of the weir, they installed a wire rope and warning buoys marked with a "restricted area" symbol and the words "Keep Out."They also installed buoys north of the canal pond and south of the weir, and again south of the canal pond and north of the power plant.

After the lake was opened to the public, the Commission built a footbridge across the discharge canal south of the weir and north of the second set of rope-buoys to prevent boaters in the canal pond from floating down the canal and over the top of the weir.However, the footbridge fell into disrepair and was removed by the Commission before Mr. Bingaman drowned.

When Mr. Bingaman's death occurred, fishing and boating were allowed in the canal pond and canal waters between the second and third sets of rope-buoys.However, boating was not permitted in the discharge canal between the first and second sets of rope-buoys, including the weir area.⁶A few years after Mr. Bingaman's drowning, defendants installed a chain link fence running north from the top of the weir down to the water's edge.They also erected orange construction fencing and posted signs warning of a "severe undertow" both upstream and downstream of the weir.These actions effectively "boxed off" the weir area from all public access.

II.

A.

The KRUS was enacted "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."Kan.Stat.Ann. Sec. 58-3201.⁷Accordingly, a landowner who falls within the statute's ambit normally "owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes."Kan.Stat.Ann. Sec. 58-3203.Similarly,

an owner of nonagricultural land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby: (a) Extend any assurance that the premises are safe for any purpose.

(b) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.

(c) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.

Kan.Stat.Ann. Sec. 58-3204(emphasis added).⁸

There are, however, two exceptions to limited immunity provided by the KRUS.First, the statute does not "limit[ ] in any way any liability which otherwise exists ... [f]or willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity."Kan.Stat.Ann. Sec. 58-3206(a).Second, landowners who charge a fee for public use of nonagricultural land are not immune from liability.Kan.Stat.Ann. Sec. 58-3206(b).Although plaintiff has invoked the "willful or malicious" exception as an alternate ground for recovery, it is undisputed that the public used defendants' land free of charge.

Applying the KRUS to plaintiff's wrongful death action, the district court ultimately concluded defendants were entitled to immunity from liability because of its findings that the weir area was open for public recreational use and that plaintiff failed to establish defendants' conduct toward Mr. Bingaman was willful or malicious.In so holding, the court first resolved that the weir area "constitute[d] a part of Easement Area II, as defined in Schedule D of the Easement...