State ex rel. Schmitt v. Henson

• Decision Date: 14 April 2020
• Docket Number: No. ED 107970,ED 107970
• Citation: State ex rel. Schmitt v. Henson, 604 S.W.3d 793 (Mo. App. 2020)
• Parties: STATE of Missouri, EX REL. Attorney General Eric S. SCHMITT, Respondent, v. Gary HENSON, et al., Appellants.
• Court: Missouri Court of Appeals

604 S.W.3d 793

STATE of Missouri, EX REL. Attorney General Eric S. SCHMITT, Respondent,

v.Gary HENSON, et al., Appellants.

No. ED 107970

Missouri Court of Appeals, Eastern District, SOUTHERN DIVISION.

Filed: April 14, 2020

Motion for Rehearing and/or Transfer to Supreme Court Denied May 21, 2020

Application for Transfer to Supreme Court Denied September 1, 2020

Clinton B. Roberts, 16 W. Columbia St., PO Box 430, Farmington, MO 63640, For Defendants/Appellants.

Jeremiah J. Morgan, Brandon E. Gibson, P.O. Box 899, Jefferson City, MO 65102, For Plaintiff/Respondent.

OPINION

Colleen Dolan, Chief Judge

Gary Henson("Gary"), Rebecca Henson("Rebecca")¹(collectively, "the Hensons"), and Offsets Recreation, LLC("Offsets Recreation")(collectively, "Appellants") appeal the trial court's judgment permanently enjoining Appellants from operating the commercial swimming and diving facility on the Hensons’ property ("the Offsets") and/or charging admission to such facility until Appellants meet certain conditions to make operation of the Offsets safer for guests.The State filed its petition requesting a permanent injunction and its motion for preliminary injunction against Appellants on the grounds that Appellants’ operation of the Offsets was a public nuisance, and after a bench trial, the trial court concluded that Appellants’ operation of the Offsets constituted a public nuisance because it interfered with the "common community right of public safety."

Appellants raise four points on appeal.In their first point, Appellants argue that the trial court erred in concluding that Appellants’ operation of the Offsets was a public nuisance because "Missouri does not recognize a cause of action for a public nuisance where the alleged activities are solely on private property and where the public has no right to enter and which enterprise does not interfer[e] with a right common to the general public."In their second and third points, Appellants assert that the trial court erred by enjoining Rebecca (Point II) and Gary (Point III) because there was no evidence presented before the trial court demonstrating that either owns or operates the Offsets.And in their fourth point, Appellants contend that the trial court erred in concluding that their operation of the Offsets constituted a public nuisance because "the evidence does not support a public nuisance because nine deaths over thirty-two years is not a public nuisance."

Finding that the trial court did not err in any of the ways asserted by Appellants, we affirm the judgment of the trial court.

I.Factual and Procedural Background

On July 30, 2018, the State filed its petition in the Circuit Court of Madison County.The State asserted that Appellants’ operation of the Offsets was a public nuisance, as nine people had died at the Offsets since the commercial swimming and diving operation began in the mid 1980's on what is now the Hensons’ property.The State requested that the trial court enjoin Appellants from operating the Offsets until the complained of dangerous conditions were remediated.A bench trial was held on the matter on May 15, 2019.

At trial, the State offered several exhibits detailing Appellants’ operation of the Offsets,² the Hensons’ ownership of the property on which the Offsets was operated, and the deaths that occurred at the Offsets since Appellants began operating it.Those exhibits included a deposition given by Gary before trial, photographs of the Hensons’ property and signs on/leading to the property, coroner's reports on seven of the persons who died at the Offsets,³the articles of incorporation of Offsets Recreation, and Offsets Recreation's lease of the Hensons’ property.Additionally, the State presented testimony by Tyler Wood("Wood")(an investigator with the Missouri Attorney General's Office), Collin Follis("Follis")(the current Madison County coroner), Sheriff Katy McCutcheon("Sheriff McCutcheon")(the current sheriff of Madison County), Michael Oostman("Oostman")(an expert witness on aquatic safety risk management), and Melissa Duffell(mother of one of the persons who drowned at the Offsets).In response, Appellants presented exhibits further detailing operation of the Offsets, including more photographs of the Hensons’ property and the waiver drafted by Appellants that guests of the Offsets had to sign before entering the Hensons’ property.Appellants also presented testimony by Sharon Marshall(the Hensons’ daughter), Richard Menendez(a frequent guest of the Offsets), and Gary.

In sum, the evidence presented showed the following.The Hensons own property in Madison County, Missouri at which Gary/Offsets Recreation manages the Offsets commercial swimming and diving operation; that property contains a quarry (previously a lead mine) that is now flooded, resulting in an approximately five-acre lake that is surrounded by bluffs of varying heights—the highest of which are at least 40 feet above the water of the lake.The Hensons purchased the property from Gary's father in the mid 1980's, but, since the early 1980's, Gary has managed the Offsets as a commercial enterprise that charges members of the public for admission to the property so that they may swim and dive in the quarry, hike, and camp overnight.Gary ran the Offsets as a sole proprietor until 2009, when he organized Offsets Recreation, of which he is the sole member and manager.Offsets Recreation has leased the Hensons’ property since 2009, with the exception of the 2015 and 2016 swimming seasons, when the Hensons’ son operated a similar commercial swimming and diving enterprise at the property.Gary/Offsets Recreation invites members of the public to the Offsets using roadside and social media advertisements, which result in upwards of hundreds of people visiting the Offsets on a given day.

Since 1989, nine people have died at the Offsets: four died while swimming in the quarry, while the other five died from injuries sustained from jumping or falling into the quarry from the bluffs above.Upon entering the Offsets, guests must sign a waiver notifying them of general dangers on the property and that they swim and dive at their own risk.Additionally, an employee of Gary/Offsets Recreation verbally warns guests not to jump off the high bluffs into the quarry, and there are signs at some locations on the Hensons’ property warning guests not to "flip" off the high points of the bluffs, that there is no lifeguard on duty, and that guests swim at their own risk.Appellants do not station lifeguard-trained or CPR-trained staff that monitor the water at the Offsets, allow guests to bring and consume substantial amounts of alcohol on the property, do not have rescue or medical equipment readily available in case of injury (other than a flotation ring), minimally supervise guests who are swimming or diving, do not require guests to wear life vests when jumping from the bluffs or during any other activity at the Offsets, allow guests to jump from any points on the bluffs/do not instruct from where guests should or should not jump, and have warning signs posted only at certain points on the property, none of which warn of the dangers of swimming, falling, jumping, flipping, or diving in the quarry.

Oostman, an expert witness on aquatic safety risk management, testified specifically about the dangers present at the Offsets and Appellants’ failure to adequately warn against those dangerous conditions or reasonably act to prevent or prepare for injuries caused by said dangers.Oostman visited the Offsets and inspected it during February of 2019⁴ after being contacted by the Missouri Attorney General's Office.During his visit, Oostman took several photographs (which were entered into evidence) of the conditions and signs present at the Offsets, and opined during his testimony why he thought the measures taken by Appellants were insufficient to warn guests of the dangerous conditions.In particular, Oostman opined that the Offset's warning signs failed to sufficiently warn of the consequences (i.e., injury or death) of jumping, swimming, and diving in the quarry, were not in proximate enough locations to the dangerous conditions to effectively warn guests, and did not adequately inform guests how to safely engage in jumping off the high bluffs.Oostman further opined that, based on Gary's deposition and other evidence, the Offsets was inadequately staffed to enforce the Offsets's rules or ensure guests were acting safely, failed to place any lifeguard-trained employees waterside, did not have an emergency response/action plan other than calling 911, and failed to have proper safety/medical equipment such as backboards, rescue tubes, or ventilation equipment.Oostman also opined that allowing guests to consume alcohol while at the Offsets further contributed to a greater risk of injury or death in that intoxication affects the judgment of guests swimming or diving in the quarry.

On May 23, 2019, the trial court entered its judgment concluding that the Offsets was a public nuisance and permanently enjoining Appellants from operating the Offsets as a commercial swimming and diving facility and/or charging admission to the Offsets until certain conditions were met.In its judgment, the trial court made detailed findings of fact regarding Appellants’ ownership and operation of the Offsets, the deaths that have occurred at the Offsets since 1989, the dangerous conditions present at the Offsets, and the measures that Appellants did or did not take to prevent and prepare for injuries caused by those dangerous conditions.The trial court specifically referenced the testimony of Oostman, and found him to be a qualified expert and that his opinions were well-founded and based on his extensive experience and observations of the evidence.In particular, the court found (in accordance with Oostman's testimony) that: "the Offsets contains many dangers, including the harsh impact of the water on the body when...