Lonergan v. May, WD 58498.

• Decision Date: 29 May 2001
• Docket Number: No. WD 58498.,WD 58498.
• Citation: 53 S.W.3d 122
• Parties: Loren LONERGAN, Camielle Lonergan and Michael Lonergan by Loren Lonergan, next friend, Appellants, v. Arthur B. and Carolyn N. MAY; Union Electric Company; and David Werner, Respondents.
• Court: Missouri Court of Appeals

53 S.W.3d 122

Loren LONERGAN, Camielle Lonergan and Michael Lonergan by Loren Lonergan, next friend, Appellants, v. Arthur B. and Carolyn N. MAY; Union Electric Company; and David Werner, Respondents.

No. WD 58498.

Missouri Court of Appeals, Western District.

April 3, 2001.

Motion for Rehearing and/or Transfer Denied May 29, 2001.

COPYRIGHT MATERIAL OMITTED

Randall D. Thompson, Kansas City, for appellant.

Carol Franke Walsh, Kansas City, for respondent May.

Ann Elizabeth Buckley, St. Louis, for respondent Union Electric.

Phillip Anthony Brooks, Kansas City, for respondent Werner.

Before HOLLIGER, P.J., LOWENSTEIN and NEWTON, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied May 29, 2001.

NEWTON, Judge.

I. Factual and Procedural Background

On or about April 30, 1997, Michael Lonergan, David Werner and another passenger, not party to this suit, were riding in a 21 foot 1997 Regal boat on the Lake of the Ozarks (the lake) at approximately the 27.8 mile marker. Mr. Werner owned the boat. The boat collided with a catwalk connected to a boat dock, both owned by Arthur B. and Carolyn N. May (the Mays). The Mays also own lake property that is connected to the dock. As a result of the accident, the three passengers died.

Union Electric Company (UEC) operates a dam on Osage River to generate electricity at Bagnell Dam. UEC provides electricity for parts of Missouri and Illinois. It also owns the lake and acquired the shoreline lands, lands underlying the reservoir, and owns the majority of the shoreline property around the lake.

The United States Army Corps of Engineers delegated UEC the authority to issue boat dock permits. Federal Energy Regulatory Commission (FERC) transferred its authority to permit boat docks at the lake to UEC in its licensing agreement. The boat dock permits issued free of charge by UEC cannot be transferred from the permittee to a subsequent owner without prior written notice to UEC and without the subsequent owner's signature indicating that he has complied with all the terms and conditions of the boat dock permit. The Mays did not obtain the requisite boat dock permit when they purchased the lake property, but the boat dock was already situated on the lake.

The Appellants filed a wrongful death petition against the Mays, Mr. Werner, and UEC for the death of Michael Lonergan. The petition alleged that Mr. Werner was negligent in the operation of the boat, the Mays were negligent for failing to light the dock or mark it with any reflective material and for not obtaining the boat dock permit, and that UEC failed to regulate obstructions to navigation on the lake. The Ad Litem for Mr. Werner reached an agreement with the Appellants and therefore is not a party to this appeal.

On January 7, 2000, the trial court granted the Mays' motion for summary judgment on the allegation that they were negligent for not obtaining a boat permit.¹ Then on January 19, 2000, UEC amended its answer and included §§ 537.345 through 537.348,² the Recreational Use Act (RUA or the Act), as an affirmative defense. Then the Mays amended their answer asserting the same affirmative defense.

UEC and the Mays filed a motion for summary judgment based on the immunity provisions in the RUA. The trial court sustained the respondents' motions for summary judgment. This appeal followed.

First, the appellants allege that the trial court erred in granting the motion for summary judgment under the RUA as to UEC because the immunity provision in the statute does not apply to UEC in that it uses the lake primarily for commercial purposes which triggers the "noncovered land" exception to the immunity provision. Second, they argue that the Mays are not immune under the Act because it does not apply to residential property. Next, they claim that the operational license granted to UEC by the FERC governs its duties and liabilities and not the Act because the license agreement was implemented before the statute went into effect. Finally, the appellants claim that the Act was meant to protect natural, undeveloped and unimproved property and since the dam has become a highly developed residential and commercial area, it is no longer in its natural state. Therefore, it is not protected by the Act.

II. Standard of Review

The standard of review for a summary judgment is governed under Rule 74.04 and set out in ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp.³ In reviewing a grant of summary judgment, we examine the entire record to determine whether there is any issue of material fact and whether the moving party was entitled to judgment as a matter of law.⁴ We will review the record in the light most favorable to the party against whom summary judgment was entered.⁵ We accord the non-movant the benefit of all reasonable inferences from the record.⁶ The propriety of summary judgment is purely an issue of law.⁷ Our review is essentially de novo.⁸

III. Legal Analysis

A. Purpose of the Recreational Use Act

The interpretation of the RUA is an issue of first impression, and therefore we must carefully examine the statute in order to determine, "the intent of the legislature from the language used, to give effect to that intent if possible, and to consider words used in the statute in their plain and ordinary meaning."⁹ When deciding whether a statute is clear and unambiguous so as to ascertain the intent of the legislature, the appellate court must consider whether the language is plain and clear to a person of ordinary intelligence.¹⁰ Only when the language is ambiguous or if its plain meaning would lead to an illogical result will the court look past the plain and ordinary meaning of a statute.¹¹

Every state of the Union has adopted statutes similar to the RUA.¹² In Missouri, a version of the RUA became law in 1983 upon the enactment of §§ 537.345 through 537.348. Although Missouri's statute does not explicitly state the purpose of the Act, other jurisdictions consistently state that the general purpose of these statutes is to encourage landowners to open their lands to the public for recreational use by restricting the landowners liability.¹³ Thus, like many of the jurisdictions that have passed similar legislation, we believe that the Missouri legislature enacted the RUA to encourage the free use of land for recreational purposes in order to preserve and utilize our natural resources. Furthermore, Section 537.346 of our statute, relieves the landowner of any duty to keep his land safe so long as the owner does not charge a user fee. In other words, it creates a tort immunity for landowners who open their land to the public free of charge for recreational use. It is not ambiguous. It states:

Except as provided in sections 537.345 to 537.348, an owner of land 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.¹⁴

Landowners can, however, incur liability if there is a malicious or grossly negligent failure to warn or guard against a dangerous condition, charge a fee for entry upon the land, or come within the other exceptions contained in § 537.348.¹⁵ Read together with the exceptions contained in § 537.348, the Act does create some ambiguity. Section 537.348 provides:

Nothing in sections 537.345 through 537.348 shall be construed to create liability, but it does not limit liability that otherwise would be incurred by those who use the land of others, or by owners of land for:

(1) Malicious or grossly negligent failure to guard or warn against a dangerous condition, structure, personal property which the owner knew or should have known to be dangerous, or negligent failure to guard or warn against an ultrahazardous condition which the owner knew or should have known to be dangerous;

(2) Injury suffered by a person who has paid a charge for entry to the land; or

(3) Injuries occurring on or in:

(a) Any land within the corporate boundaries of any city, municipality, town, or village in this state;

(b) Any swimming pool. "Swimming pool" means a pool or tank, especially an artificial pool or tank, intended and adapted for swimming and held out as a swimming pool;

(c) Any residential area. "Residential area" as used herein means a tract of land of one acre or less predominantly used for residential purposes, or a tract of land of any size used for multifamily residential services; or

(d) Any noncovered land. "Noncovered land" as used herein means any portion of any land, the surface of which portion is actually used primarily for commercial, industrial, mining or manufacturing purposes; provided, however, that use of any portion of any land primarily for agricultural, grazing, forestry, conservation, natural area, owner's recreation or similar or related uses or purposes shall not under any circumstances be deemed to be use of such portion for commercial, industrial, mining or manufacturing purposes.

Because the entire Act is at issue in this case, we will refer to various sections of the Act throughout the analysis. Therefore, it is imperative that the entire Act be cited. Section 537.345 is the definitional section of the Act and states:

As used in sections 537.345 to 537.347, the following terms mean:

(1) "Charge", the admission price of 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;

(2) "Land", all real property, land and water, and all structures, fixtures, equipment and machinery thereon;

(3) "Owner", any individual, legal entity or governmental agency that has any ownership or security interest whatever or lease or right of possession in land;

(4) "Recreational use", hunting,

...