Mustain v. Grand River Dam Authority

• Decision Date: 22 April 2003
• Docket Number: No. 96,056.,96,056.
• Citation: 2003 OK 43,68 P.3d 991
• Parties: Robin MUSTAIN, Plaintiff/Appellant, v. GRAND RIVER DAM AUTHORITY and David Harris Grandin, Defendant/Appellees.
• Court: Oklahoma Supreme Court

68 P.3d 991

2003 OK 43

Robin MUSTAIN, Plaintiff/Appellant, v. GRAND RIVER DAM AUTHORITY and David Harris Grandin, Defendant/Appellees.

No. 96,056.

Supreme Court of Oklahoma.

April 22, 2003.

As Corrected April 23, 2003.

As Corrected May 7, 2003.

Robert Bell, Norman, and James T. Thompson, Edleman & Thompson, Kansas City, MO, for appellant.

Robert A. Franden, Jody R. Nathan, Feldman, Franden, Woodard Farris & Boudreaux, Tulsa, and Allen B. Pease, General Counsel, Grand River Dam Authority, Vinita, for appellees.¹

OPALA, V.C.J.

¶ 1 The certiorari quest presses for our decision two questions: (1) Does the Grand River Dam Authority's collection of commercial-and private-dock permit fees and miscellaneous rents constitute "commercial activity" which would except it from the immunity otherwise extended by the Recreational Land Use Act? (2) Does the Governmental Tort Claims Act's protection extend to the Grand River Dam Authority? We answer the first question in the negative and the second in the affirmative.

I. ANATOMY OF THE LITIGATION

¶ 2 Robin Mustain (plaintiff/appellant) sustained severe bodily injuries when the personal water craft (water craft²) on which she was a passenger struck a support structure of an abandoned railroad bridge situated in the main channel of Grand Lake. The accident occurred at approximately 8:45 p.m. on July 12, 1998. Mustain was one of three individuals aboard the craft operated by David Grandin. According to witnesses, Grandin was piloting the water craft, weaving it back and forth between the support columns of an abandoned railroad bridge at dusk, when he struck a concrete cross-bar which spanned the distance between two vertical support structures. The cross-bar stood approximately three-and-a-half feet above the water. As a result of the accident the other passenger was killed. Mustain and Grandin sustained serious injuries.

¶ 3 The bridge at issue in today's controversy is over ninety-five years old. It was left uncompleted when a dam was built to impound the waters of the Grand River to create a source for producing hydroelectric power. The bridge and portions of the support structure (including the cross bar which was struck) were visible above the water line. The structure bore no markings or warnings. Mustain produced an affidavit from a maritime safety expert which states the bridge structure constitutes a navigational hazard and should have been marked and lighted in accordance with federal regulations. She also relied on evidentiary material to show that the Authority generated miscellaneous rent income attributable to its operation of the lake and permit fees for commercial and private docks on the lake. Mustain does not claim nor did she produce probative material to show that she or Grandin were charged a fee for using the lake or that the Authority charges user fees. The Authority contends it is prohibited from charging such fees.³

¶ 4 Mustain seeks recovery from Grandin,⁴ operator of the water craft, and from the Grand River Dam Authority (Authority), who owns and operates the lake. She bases her first theory of recovery on what we will refer to as the "commercial-activity exception" to the immunity otherwise afforded the Authority by the Recreational Land Use Act (RLUA).⁵ Her petition alleges the Authority, despite having actual knowledge of the dangers posed by the bridge and notice of defects associated with the structure, consciously chose to disregard these dangers and refused to take steps to rectify the alleged dangerous condition or provide warnings of the danger. These actions, she asserts, constitute "deliberate, willful or malicious" conduct as this phrase is used in § 1301-315(E)⁶ and operate to strip the Authority of the protection otherwise afforded by the RLUA.

¶ 5 The Authority moved to dismiss the action claiming (1) the suit is time-barred by the statute of repose,⁷ (2) the Authority's collection of commercial- and private-dock permit fees and miscellaneous rents does not constitute "commercial activity" within the meaning of the RLUA and hence it is not stripped of its immunity shield, and (3) the Authority's conduct does not rise to the level of deliberate, willful, or malicious and hence its actions do not deprive it of the RLUA's protection;⁸ but even if they did, the provisions of the Governmental Tort Claims Act (GTCA)⁹ apply here to exempt it from civil liability. ¶ 6 The trial court sustained the Authority's motion to dismiss.¹⁰ It ruled (1) the statute of repose operates to bar Mustain's claim, and (2) the Authority's profit-related activities are unrelated to the bridge and hence not the type of commercial endeavor that deprives the Authority of the RLUA-conferred immunity. Mustain appealed.

¶ 7 Treating the nisi prius order as summary adjudication, the Court of Civil Appeals (COCA) affirmed the trial court's disposition.¹¹ COCA agreed with the trial court's ruling that the Authority's profit-related activities, demonstrated by the evidentiary materials, do not operate to bring the Authority within the statute's commercial-activity exception. With regard to Mustain's other theory of liability—that the Authority's actions amounted to deliberate, willful or malicious conduct and hence lie outside the protections afforded by the RLUA—COCA noted the legislature had declared the Authority to function as a state agency and held that it falls under the protection of the GTCA. Any liability the Authority may bear under the other theory is barred by the GTCA.

II. STANDARD OF REVIEW FOR SUMMARY PROCESS

¶ 8 We agree with COCA that the trial court's disposition stood effected by summary process. Summary process is a procedural pretrial device for the prompt and efficient disposition of an action sans forensic combat.¹² It is available where the moving party shows there is no substantial controversy over applicable facts that are material to its defense and any inference which may be reasonably drawn from undisputed facts tendered must be construed in the moving party's favor.¹³ Once the moving party has made the required showing, the adverse party must then assume the burden of demonstrating the existence of a material fact that would justify a trial.¹⁴ Summary relief issues stand before us for de novo review.¹⁵

III.

A.

THE RULE IN HUGHEY—THAT COMMERCIAL ACTIVITY UNRELATED TO LAND/WATER USE BY INVITED GUESTS IS NOT A BAR TO § 1301-315 IMMUNITY—APPLIES TO TODAY'S CONTROVERSY.

¶ 9 Mustain's certiorari challenges COCA's holding that the Authority's commercial activities here in question are not of the type that bring it within the RLUA's commercial-activity exception and stand outside the immunity protection otherwise afforded by that Act. She contends that its activities—the collection of dock-permit fees and miscellaneous rents—are to be likened to those present in Boyd v. U.S. ex rel. U.S. Army Corps of Engineers¹⁶ where we determined the Corps was engaged in commercial activity that served to exempt it from the Act's liability provisions. The Authority contends that our later decision in Hughey v. Grand River Dam Authority¹⁷ controls today's controversy.

¶ 10 Boyd is distinguishable from this cause. Boyd's widow brought an action under the Federal Tort Claims Act against the U.S. Army Corps of Engineers (Corps) after her husband was hit by a motor boat while swimming in a lake under its supervision. The question certified to us there was whether our recreational-use statute applied to afford immunity to the United States? Boyd dealt with a federal agency whose statutorily authorized powers encourage its operation¹⁸ of public parks and recreational facilities, including the assessment of fees¹⁹ for the use of developed recreation sites and facilities. The Corps charged fees for lake activities and, in addition to exacting a flat rental rate for various concessions, obligated some commercial lessees to consign (to the Corps) an additional graduated rent based on a percentage of its income from sales and services.²⁰ We held that under these facts the Corps was precluded from invoking the immunity provisions of the RLUA.

¶ 11 The Authority contends the facts and legal issues in today's controversy more closely parallel those that spawned the litigation in Hughey. There two boaters drowned after their motor boat collided at night with the bridge in contest here, and the decedents' representatives sought to recover from the Authority. Our pronouncement in Hughey was twofold. We first held that the Authority, whether viewed as a private entity or as an instrumentality of the State, could take advantage of the immunity from premises liability provided by the RLUA. Second, although we determined that neither of the Act's two immunity exceptions applied under the facts demonstrated in the record, Hughey established that "the type of commercial activity that takes a landowner out of the purview of § 1301-315 immunity must be connected with the invitees' recreational use of the lands or waters."²¹ Commercial activity unrelated to land/water use by invited guests is not a bar to immunity.²² The for-profit activity at the center of the controversy in Hughey—the Authority's generation of electricity—was held to have had no "profit-related nexus to the admitted public's presence upon the premises or with its free use of the locus delicti."²³

¶ 12 Our review of Boyd and Hughey reveals the cases address two different governmental entities, operating under two different legislative frameworks, only one of which had a direct financial interest in the income generated by its lessees. Mustain's attempt to rely on Boyd is unavailing. Today's controversy deals neither with the Authority's direct commercial interest in a percentage of its lessees' profits nor with lake-user fees as in Boyd. We must hence rely here on the distinguishing feature of Hughey as outcome-determinative for today's answer to the question before us.

B.

The Authority's...