Miller v. River Hills Development, 59998

• Decision Date: 19 May 1992
• Docket Number: No. 59998,59998
• Citation: 831 S.W.2d 756
• Parties: Marcedes MILLER, et al., Appellants, v. RIVER HILLS DEVELOPMENT, et al., Respondents.
• Court: Missouri Court of Appeals

Page 756

831 S.W.2d 756

Marcedes MILLER, et al., Appellants, v. RIVER HILLS DEVELOPMENT, et al., Respondents.

No. 59998.

Missouri Court of Appeals,

Eastern District,

Division Two.

May 19, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

June 17, 1992.

Application to Transfer Denied July 21, 1992.

Robert Gerard Kister, Dodson, Breeze & Kister, Festus, for appellants.

John H. Marshall, Burns, Marshall & Burns, Clayton, for River Hills Development Co.

David E. Larson, Kansas City, for Unimin Corp.

SIMON, Judge.

T.J. Whitmire (Whitmire), by and through his guardian and next friend, Marcedes Miller (Miller), appellants, appeal the trial court's grant of Respondents', Unimin Corporation (Unimin) and River Hills Development Company (River Hills), motions for summary judgment.

On appeal, appellants contend that the trial court erred in granting summary judgment in that 1) there is a genuine issue of material fact as to whether Unimin fulfilled its duty to adequately seal the mine as required by § 293.530(3) RSMo 1986 (all further references shall be to RSMo 1986 unless otherwise noted) and 2) there is a genuine issue of material fact as to whether River Hills knew or had reason to know that: a) a hazardous condition existed on its property; b) children were exposed to it; c) T.J. Whitmire did not know of and appreciate the danger; and d) it failed to prevent Whitmire from being exposed to such harm. We affirm in part and reverse in part.

Initially, we find that in light of the record presented an overview of summary judgment procedure is necessary. A motion for summary judgment may be made with or without supporting affidavits. Rule 74.04(a), (b). The motion shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 74.04(c). When a motion for summary judgment is made, an adverse party "may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this Rule 74.04, shall set forth specific facts showing that there is a genuine issue for trial." Rule 74.04(e). When relying upon deposition testimony, interrogatory answers, or other documents, it is appropriate for both the moving and opposing parties to specifically direct the court to particular parts of the deposition transcript, interrogatory answer, admission or exhibit upon which the party is relying. Landmark North County Bank & Trust Company v. National Cable Training Centers, Inc., 738 S.W.2d 886, 889[1, 2] (Mo.App.1987). This direction must be made part of the trial record as "[i]t is not the function of the appellate court to sift through material furnished by the parties on appeal to determine the exact nature of the evidentiary material submitted to the trial court in a summary judgment proceeding." Id. quoting Hill v. Air Shields, Inc., 721 S.W.2d 112, 116 (Mo.App.1986). Unless the record on appeal demonstrates that the documents purportedly relied upon in the trial court were properly made part of the trial record, we cannot say that they were considered by the trial court and they may not be considered on appeal. Id.

Here, the record on appeal consists of a transcript of the hearing and a legal file with six supplements (appellants filed three, Unimin filed two and River Hills filed one) and numerous exhibits. Of the ten depositions submitted, only the deposition of John Price has been signed and certified, the depositions of Thomas J. Whitmire and Ernie Hastings lack page numbers, the depositions of Thomas A. Herrmann and Patrolman Allen McKenzie were transcribed after the summary judgment motions had been granted, and the depositions of George Green, Arthur Smith, Ph.D., Edwin D. Wolfgram, M.D., and Marcedes Miller were not mentioned in any of the motions filed with the trial court. Also submitted was the deposition of George Nathan Hall. Appellants filed a motion to supplement the legal file with certain depositions. River Hills objects to appellants' attempt to supplement the record with any deposition or part of a deposition that was not cited to the trial court in documentation supporting or opposing summary judgment. Unimin objects to appellants' attempt to supplement the record with the depositions as they were not part of the record presented to the trial court. Although Unimin seeks to keep these depositions out of the record, Unimin cited portions of T.J. Whitmire's and John Price's depositions to the trial court in its memorandum supporting its motion for summary judgment. After carefully reviewing the record, we deny appellants' request to supplement the legal file with depositions or portions of depositions not cited to the trial court for resolution of the summary judgment motion, i.e., the depositions of Edwin D. Wolfgram, M.D., Thomas A. Herrmann, Patrolman Allen McKenzie, George Green, Arthur Smith, Ph.D. and Marcedes Miller. Additionally, the photographic exhibits which are connected to the deposition of Patrolman Allen McKenzie were not before the trial court and are not before us.

With respect to other portions of the record on appeal, we note that appellants failed to specifically direct the trial court to the portions of the depositions relied on. We have expended an abnormal amount of time trying to piece together the record on which the trial court reached its decision.

Viewing the record in a light most favorable to Whitmire and Miller the facts are as follows. On June 5, 1989, Whitmire, age fourteen, fell into a vertical ventilation shaft at an abandoned sandmine near Crystal City, Missouri. Unimin operated the mine from October 31, 1972 to its cessation of operations on January 21, 1983. Following cessation of mining operations Unimin took steps to seal the openings to the mine and prevent trespassing on the property. Unimin sold the property to River Hills on May 30, 1989, executing a quit-claim deed and special warranty deed to memorialize the sale. On June 4, 1989, Whitmire and his cousin, Ernie Hastings (Hastings), age fifteen, went to the mine site to explore. They found an entrance into the mine and followed that path which led to a steep dropoff and thus did not travel further on that route. On June 5, 1989, Whitmire and Hastings decided to go to the mine area again to find a better way to get into the mine, and discovered a hole, later determined to be a vertical mine shaft, which was surrounded by a chain link fence. A "Danger" sign was attached to one side of the fence surrounding the opening to the vertical mine shaft. From outside the fence, all that could be seen was a hole or depression in the ground of unknown depth. Whitmire crawled under the fence to take a closer look at the hole. The ground surrounding the hole was loose and gave way causing him to fall over 60 feet into the mine shaft sustaining serious injuries.

Appellants filed an amended six count petition essentially alleging that: River Hills negligently failed to adequately seal or fence the mine openings as required by § 293.530 and 30 U.S.C. § 811 et seq. and that Whitmire, because of his youth, did not appreciate the risk of harm (Count I); Unimin, Martin-Marietta Corporation, and PPG Industries, Inc. negligently failed to adequately seal or fence the mine openings as required by § 293.530 and 30 U.S.C. § 811 et seq. and failed to adequately fence, barricade, seal off, or warn of the dangerous conditions upon its property (Counts II, III, and IV respectively); Miller has been damaged as a direct and proximate result of the negligence of Defendants and resulting injuries to her son Whitmire (Count V); and George Green, plant manager of the Unimin Mine and Mill operations, negligently failed to adequately seal or fence the mine openings as required by § 293.530 and 30 U.S.C. § 811 et seq. and failed to adequately fence, baricade, seal off or warn of the dangerous conditions upon the property known as "PPG Sandmine". This appeal involves only Unimin's and River Hills' summary judgments.

Appellants, in their first point on appeal, contend that the trial court erred in granting summary judgment because there is a genuine issue of material fact, i.e. did Unimin, even though it sold the property to River Hills six days prior to the accident, fulfill its duty to adequately seal the mine as required by § 293.530(3). Section 293.530(3) provides:

293.530. Notice of opening and abandonment of mines--abandoned mines to be sealed

1. ...

2. ...

3. Upon abandonment of any underground mine, the operator of that mine shall seal or fence the surface openings of the mine in such a manner as to afford permanent protection to all persons and animals.

The thrust of appellants' action is that although Unimin did not own the property at the time of the accident, it still had an affirmative duty to adequately seal or fence the surface opening of the mine so as to afford permanent protection to all persons and animals upon abandonment of the mine as proscribed by § 293.530.

Unimin argues that it is not bound by the statute because it did not own the mine at the time of the accident and § 293.530 does not create an ongoing duty of care. Further, Unimin argues that assuming it did come under the statutory guidelines, it complied with the statute and relies on Parrish v. Hainlen, 124 Colo. 229, 236 P.2d 115 (1951). In Parrish two adult men were injured from an explosion of coal gas at a shaft house connected with a mine. Id. The plaintiffs argued that defendants were liable because they failed to comply with the provisions of section 97, chapter 110, '35 C.S.A. Id., which provides:

The owner operating or controlling coal lands on which there are surface caves or shafts of sufficient depth to endanger the lives of persons, cattle, horses or other stock, shall...