APPEAL FROM THE CIRCUIT COURT OF MORGAN COUNTY. The Honorable Kenneth Michael Hayden, Judge.
Anderson was represented by Kevin J. Davidson, David M. Zevan and Rachel L. Roman of Zevan & Davidson Law Firm LLC in St. Louis.
Union Electric was represented by Jeffery T. McPherson, Thomas B. Weaver, James J. Virtel and Karen A. Baudendistel of Armstrong Teasdale LLP in St. Louis.
Two organizations submitted briefs as friends of the Court: the Missouri Association of Trial Attorneys was represented by Theresa A. Appelbaum of Padberg, Corrigan & Appelbaum in St. Louis.
Timberhill-Riverbend Inc. was represented by Lauren E. Tucker McCubbin and Jon R. Dedon of Polsinelli PC in Kansas City.
Paul C. Wilson, Judge. Russell, C.J., Breckenridge, Fischer and Stith, JJ., co; Teitelman, J., dissents in separate opinion filed; Draper, J., concurs in opinion of Teitelman, J.
Paul C. Wilson, Judge
Angela Anderson (" Anderson" ) sued Union Electric Company (" UE" ) for wrongful death after her two children drowned in the Lake of the Ozarks. The trial court dismissed the petition on the ground that UE is immune from Anderson's claims under the Recreational Use Act, § § 537.345 to 537.348, RSMo 2000 and Supp. 2013 (the " RUA" ). This judgment is affirmed.
The Lake of the Ozarks (the " Lake" ) is the impoundment created by Bagnell Dam, and both the Lake and the dam are owned by UE. The Lake extends more than 90 miles up the Osage River riverbed. It has a surface area of more than 55,000 acres and a shoreline of more than 1,100 miles. Even though UE constructed Bagnell Dam to generate hydroelectric current for its customers, thousands of area landowners and millions of visitors each year enjoy the Lake's scenic beauty and recreational allure.
Anderson alleges that UE does not allow those who own land along the Lake's shore to build, maintain, or use docks or other improvements extending onto or over the Lake unless they obtain a permit from
UE. According to Anderson, this permit program allows UE to impose and enforce various requirements for these improvements, including requirements regulating the manner in which landowners may supply electricity to their docks. In connection with the issuance and enforcement of these permits, Anderson alleges that UE charges various fees, including a " use fee."
Anderson and her husband own real estate adjoining the Lake. She alleges that the property " was serviced by a lakeside dock" and that the " placement, maintenance and use [of Anderson's dock] was the subject of fees charged by and paid to" UE. The Andersons chose to supply electric power to their dock but failed to protect that supply with ground fault interrupt (" GFI" ) devices at or above the seawall to prevent injury in the event of an electrical fault. Anderson alleges that, prior to the death of her children, UE did not warn dock owners about the risks of not using such GFI devices or require dock owners to install these devices as a condition of obtaining a dock permit.
On July 4, 2012, Anderson alleges that her children were " swimming in the vicinity of the Anderson Dock when they encountered stray electrical current." She alleges that this " stray current" caused the children's death from drowning, electrocution, or both. In addition, Anderson alleges UE was negligent in one or more of the following respects:
o UE failed to " adequately inspect the Anderson dock to ensure adequate ground fault interrupter protection; "
o UE failed to include ground fault interrupter protective devices at or above the seawall as a precondition to dock permitting;
o UE failed to warn dock owners " including Brian and Angela Anderson, of the need for ground fault interrupter protective devices at or above the dock seawalls; " and
o UE failed to warn dock owners along the Gravois arm of anticipated increase in wear and tear on docks as a consequence of the permitting ...