Gnau v. Union Elec. Co.

• Decision Date: 09 May 1984
• Docket Number: No. 47152,47152
• Parties: Robert Todd GNAU, et al., Plaintiff, v. UNION ELECTRIC COMPANY, Defendant 3rd Party Plaintiff-Appellant, v. Donald W. CROWE, et al., 3rd Party Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 142

672 S.W.2d 142

Robert Todd GNAU, et al., Plaintiff, v. UNION ELECTRIC COMPANY, Defendant 3rd Party Plaintiff-Appellant, v. Donald W. CROWE, et al., 3rd Party Defendants-Respondents.

No. 47152.

Missouri Court of Appeals,

Eastern District,

Division One.

May 9, 1984.

James J. Virtel, Ann E. Buckley, St. Louis, Richard Lee Blatt, Robert W. Hammesfahr, Chicago, Ill., for third party plaintiff-appellant.

Paul S. Brown, St. Louis, for third party defendants-respondents McClanahan and Kirby.

Jeffry S. Thomsen, St. Louis, Robert H. Burns, Clayton, for third party defendants-respondents Crowe et al.

SNYDER, Judge.

This is an appeal from a third-party action for contribution arising out of the settlement of a personal injury claim. The trial court granted the third-party defendants' motion for summary judgment and third-party plaintiff Union Electric Company (U.E.) appeals. The judgment is affirmed.

A seven-year-old boy suffered severe electrical burns when he climbed a tree and came into contact with U.E.'s 7,200 volt power line. U.E. paid damages to the boy and his parents pursuant to a settlement agreement.

U.E. now seeks contribution from the trustees of two adjoining subdivisions over which the power line easement extended. The utility asserts the trustees should contribute because they were negligent in not warning the boy, in failing to trim the tree in which he was injured, or in controlling the easement property in some way so as to prevent or eliminate the dangerous condition.

The determinative question is whether the trustees owed a duty to the injured child, the breach of which would subject them to liability for his injuries.

On April 29, 1977, Robert Todd Gnau, then seven years of age, was playing with several other children near a hackberry tree situated on the boundary line of the Woodside and Flamingo Oaks subdivisions in St. Louis County. Todd was a resident of the Woodside subdivision. The land adjacent to the boundary line was deemed "common ground" by both subdivisions, i.e. all residents of the subdivisions had access to, and a right to use, that area. A rope and tree swing of unknown ownership were attached to the tree, and there was evidence that children were often seen playing around the tree.

On this particular day, the Gnau boy and a friend climbed the hackberry tree. Both boys came into contact with a U.E. power line under circumstances that remain unresolved. Todd Gnau suffered extensive burns to his face, hands and eyes. The other boy was killed. Suit was filed against U.E. U.E. then filed a third-party action for contribution against the trustees of the Flamingo Oaks and Woodside subdivisions. ¹

U.E. ultimately reached a settlement for $2,150,000 with Todd Gnau and $100,000 with his parents. The original petition was dismissed and U.E. filed an amended third-party petition seeking contribution from the trustees of both subdivisions. The trustees then renewed a previous motion for summary judgment which was granted.

On appeal from a summary judgment, this court is required to interpret the record in the light most favorable to the party against whom the summary judgment was rendered and to accord to that party the benefit of every doubt. "Summary judgment is a drastic remedy and is therefore inappropriate unless the prevailing party has shown by unassailable proof to be entitled thereto as a matter of law.... If a genuine issue of fact exists, summary judgment cannot be granted. A genuine issue of fact exists when there is the slightest doubt about the facts.... However, the fact in doubt must be a material one which has legal probative force as to a controlling issue. Union Electric Co. v. Clayton Center Ltd., 634 S.W.2d 261, 263 (Mo.App.1982). (Emphasis added). See also Rule 74.04.

There was a plethora of evidence before the trial court when it considered the third-party defendants' motion for summary judgment, including numerous depositions, maps, interrogatories, pleadings and the trust indentures and restrictions applicable to the two subdivisions. After reviewing all the evidence, the trial court granted the trustees' motion for summary judgment.

U.E. has admitted its own liability. It pleads only that the trustees of the subdivisions were concurrently liable because of a duty on the part of the trustees to the children of the subdivision residents. U.E. argues the trustees should be held to a duty to warn the children of the dangerous condition, to notify U.E. that a dangerous condition existed, or to take over U.E.'s duty to trim the trees and eliminate the dangerous condition.

On appeal, U.E. raises four points of error. But the key issue is whether the trustees owed Todd Gnau the duty of reasonable care to warn him or eliminate the dangerous condition, thus raising a genuine issue of material fact as to whether a breach of that duty occurred. Because this court finds that, under these facts, the trustees owed no duty to Todd Gnau, no genuine issue of material fact was raised below and the trial court properly granted respondents' motion for summary judgment.

The power line at issue was located on the easement granted to U.E. by Flamingo Oaks "to construct, reconstruct, use, operate, maintain, add to the number of and patrol on electric or telephone and communication line or lines, or both, consisting of poles, grip anchors, wires, cables, fixtures and appurtenances thereto, including transformers, on, over, across or under" the described land. A fifteen-foot-wide easement over the Woodside subdivision ran parallel to and adjoined the Flamingo Oaks subdivision easement. The utility poles were on the Flamingo Oaks easement, but the tree in which the boy was injured was on the boundary between the adjoining Flamingo Oaks and Woodside utility easements.

The easement also granted U.E. the right of ingress and egress over, and the right to trim or remove brush and trees on, easement premises and the adjoining premises of the grantor.

"Liability for injury to the servient estate or to third persons, where the character of the easement is such that a failure to keep it in repair may result in injury, falls on the owner of the easement or the dominant estate. In the absence of an agreement to the contrary, the dominant estate must keep the easement in repair." Swingler v. Robinson, 321 S.W.2d 29, 32 (Mo.App.1959); Schuricht v. Hammen, 221 Mo.App. 389, 277 S.W. 944, 945 (1925). See also 28 C.J.S. Easements §§ 72, 94(c). The owner of the servient estate is under no obligation to maintain or repair. Stotzenberger v. Perkins, 332 Mo. 391, 58 S.W.2d 983, 987 (1933).

In Green v. Duke Power Co., 305 N.C. 603, 290 S.E.2d 593 (1982), the Supreme Court of North Carolina found that the key in such cases is control. Even where a third-party owner or occupier had knowledge of a potentially harmful condition, the court found that that party could not be held liable if the power company had the sole duty to keep its property safe. In Green the court held that any interference or tampering, by the owner or occupier, with the transformer on which a party was injured would encroach on the rights granted to the utility by an easement.

Similarly, in this case, the trustees, who were the representative owners and the occupiers of the property from which the easement was granted, and upon which the utility poles were located, did not have the right to deny access to the poles or lines. The poles and power lines were the sole property of U.E. Under the terms of the easement U.E. was granted the right: "to construct, reconstruct, use, operate, maintain, ..." the necessary lines and equipment. The easement also granted U.E. the right of ingress and egress to "trim or cut down or cause to be trimmed or cut down at any time and from time to...