|
|
The Lake News Online
  • Higher court sides against Ameren on wrongful death by electrocution lawsuit

  • In a decision that has potential for broader implications, the Missouri Western District Court of Appeals has reversed a ruling dismissing a wrongful death lawsuit against Ameren Missouri that stemmed from the deaths of two children in the Lake of the Ozarks on July 4, 2012 following electrical shocks from a nearby dock.
    • email print
      Comment
  • »  RELATED CONTENT
  • In a decision that has potential for broader implications, the Missouri Western District Court of Appeals has reversed a ruling dismissing a wrongful death lawsuit against Ameren Missouri that stemmed from the deaths of two children in the Lake of the Ozarks on July 4, 2012 following electrical shocks from a nearby dock.
    In a decision filed June 10, the appellate court found that Ameren Missouri did not have immunity under Missouri's Recreational Use Act (RUA) from liability for the dock on its lake due to the permit fees that the utility company charges for docks.
    Ameren Missouri spokesperson Bryan Daniels declined to comment on the status of the case due to the ongoing litigation.
    The higher court sided with Angela Anderson of Ashland, Mo. in her appeal of the judgement of the Morgan County Circuit Court to dismiss her petition for failure to state a claim and for denying her motion to amend her petition.
    Anderson's suit alleges that Ameren's negligence caused the deaths of her children, Alexandra Anderson, 14, and Brayden Anderson, 8, who died while swimming around their family's dock when it released electricity from devices on the dock into the water. According to Anderson through court documents, the "stray electrical current from the dock entered the water, shocked the children and caused such muscular discoordination that the children could not stay above the surface of the water, and they drowned." An investigation by the Missouri State Highway Patrol indicated an improperly grounded electrical circuit to the dock, which was not ground-fault protected, was a contributing factor in their deaths.
    At the heart of the case is the interpretation of the RUA which Ameren had cited for immunity against Anderson's suit.
    Union Electric d/b/a Ameren Missouri is the operator of Bagnell Dam and is the owner of the Lake of the Ozarks. The Federal Energy Regulatory Commission transferred its authority to permit boat docks on the lake to Ameren in its licensing agreement for the dam.
    Ameren has charged a permit fee for docks since at least 2001. There are currently some 25,000 docks permitted by Ameren Missouri on the Lake of the Ozarks.
    In both her appeal and original petition, Anderson argues that Ameren's dock permit fee acted as a "use fee" for lake residents to "use and enjoy" the lake through their docks. The suit further states that Ameren had the authority to revoke dock permits for any dock it deemed unsafe through enforcement fees and that the company should have known that adequate protection required ground fault interrupt devices to be placed at or above the seawall of each dock in order to prevent the hazards of electrical shock or electrocution in the event of a short circuit or other electrical fault.
    Page 2 of 2 - Ameren argued that it was immune from liability under the RUA in that it allowed the Andersons to enter its lake for recreational purposes without charge. Section 537.346 states, "... an owner of land owes no duty of care to any person who enters on the land without charge... ".
    According to the appellate court documents, Ameren's motion to dismiss claimed that Anderson "conceded" that her family entered the lake for recreational purposes without charge. The trial court accepted Ameren's argument and dismissed the petition citing Lonergan v. May, a 2001 Missouri Western District Court of Appeals decision in a wrongful death lawsuit against private dock owners along with Union Electric/Ameren following a 1997 fatal boat crash into a catwalk connected to a dock on the Lake of the Ozarks.
    However, the appellate court states that Anderson did not concede her family used the lake for recreational purposes without charge but rather that "all persons wanting to use their own docks to access the Lake of the Ozarks had to pay either an annual user fee or a lump sum user fee to do so."
    Anderson argued — and the Western District judges agreed — that the dock permit and enforcement fees were user fees for the construction, use and enjoyment of their family dock and were sufficient to remove Ameren's immunity from liability under the RUA.
    The appellate court decision states, "User fees were apparently not at issue in the Lonergran case... In fact, in Lonergan, we expressly noted that, at that time, dock permits from UE [Ameren] were issued free of charge."
    It further states, "Here, to the contrary, Anderson alleged that UE charged them a user fee; the user fees were a condition of the Anderson family's use and enjoyment of their dock, which, not so coincidentally, was adjacent to and sitting on top of, the lake. Thus, any 'use' of the dock necessarily involved 'accessing' the lake. This allegation, which we must assume to be true at this juncture of the case, is sufficient to distinguish Lonergan and remove UE from the protection of the RUA. The trial court's judgment does not address Anderson's allegation that the user fees were charged, nor does it attempt to reconcile the 'user fee' allegation with the limited holding in Lonergan. Because we conclude that the 'user fee' charged by UE removes UE from the immunity protection of the RUA, the trial court's judgment is erroneous."
    The appellate judges reversed the decision the trial court and has remanded the case back to Morgan County for further proceedings consistent with its opinion.
    Anderson first filed the lawsuit against Ameren Missouri in July 2013. In Morgan County Circuit Court in November 2013, Judge Kenneth Hayden denied a motion by Anderson to file an amended petition after finding in favor of Ameren Missouri in September.

        calendar