Having heard oral arguments in the Anderson v. Union Electric wrongful death lawsuit Wednesday, the Missouri Supreme Court is mulling some of the murkier areas of the state's Recreational Use Act as it applies to this case. Justices heard statements from and questioned the representative attorneys regarding the finer points of the case which stems from the electroshock drowning deaths of Anderson's children - Alexandra, 14, and Brayden, 8 - on July 4, 2012.
Having heard oral arguments in the Anderson v. Union Electric wrongful death lawsuit Wednesday, the Missouri Supreme Court is mulling some of the murkier areas of the state’s Recreational Use Act as it applies to this case. Justices heard statements from and questioned the representative attorneys regarding the finer points of the case which stems from the electroshock drowning deaths of Anderson’s children - Alexandra, 14, and Brayden, 8 - on July 4, 2012. Anderson’s children were swimming around their family's dock on the Lake of the Ozarks when devices on the dock released electricity into the water. The shock from the electricity in the water caused such muscular discoordination that the children could not stay above water and consequently drowned. Kevin Davidson of Zevan & Davidson Law Firm in St. Louis LLC represented plaintiff Angela Anderson while Jeffery McPherson of Armstrong Teasdale LLP in St. Louis represented Union Electric d/b/a Ameren Missouri. Ameren is the operator of Bagnell Dam and owner of the Lake of the Ozarks under the licensing and regulation of the Federal Energy Regulatory Commission (FERC). FERC transferred its authority to permit boat docks on the lake to Ameren in the company's licensing agreement for the hydroelectric facility. The state’s high court decided to hear the case after an appeal from Ameren Missouri after the Morgan County Circuit Court’s dismissal of the lawsuit on the ground of immunity under the Recreational Use Act was overturned by the Western District Court of Appeals. At the heart of the debate is Ameren’s responsibility after charging a permit fee for the placement of the dock on its shoreline. Ameren has charged a permit fee for docks since at least 2001. Whether that fee constitutes a charge for use, as defined by the Act, is in dispute. The RUA essentially provides immunity to land owners opening their property for recreational use as long as it is not primarily or actually a commercial activity. Whether there is commercial activity as a result of the permitting fee is in question. Ameren has 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. RSMo Section 537.346 states, "... an owner of land owes no duty of care to any person who enters on the land without charge... ". Further complexity is added, however, due to the basic facts of the case: One property (the Anderson’s dock) sits atop another property (Ameren’s shoreline) through a fee system, then with the nature of electricity and water, the dock property has the potential to impact the waters of the lake - Ameren’s property. Davidson argued two main points Feb. 18: (1) Ameren chooses to charge a permit or “use” fee for the docks, though it is not required to charge a fee for dock permitting under its licensing agreement; (2) the dock permitted by Ameren, which had the authority to revoke the permit for unsafe conditions, was the source of the electricity causing the deaths of the children. The suit claims Ameren was aware, prior to July 4, 2012, that a number of electrified docks at the lake lacked adequate protective devices to prevent stray current in the event of a break in electrical conduit and that Ameren had the right to revoke the Andersons' dock permit if the company deemed it unsafe. The dock in question - owned by the Andersons and permitted with a fee by Ameren - was lacking a seawall ground fault circuit interruptor. The “assumption” is that these docks are for entertainment and limited to people who pay for the dock, he said. The boat slip is electrified yet can also have a water slide for children, such as was the case of the Anderson dock. He called the fee a charge for service that Ameren makes money off of. Contending it is a use fee, Davidson said that absent the presence of people the dock makes no sense. A dock is paid for to be used by people, and it is by its essence connected to the water. One justice queried whether Davidson believed Ameren would be liable if someone died of E. coli poisoning in the lake if it happened near a dock. Davidson responded that transient affluent in the water would not necessarily attach liability to Ameren, going back to the argument that the electricity emanating from the dock fee-permitted by Ameren was an essential part of the non-exempt status of Ameren in this case unlike in the theoretical E. coli scenario. Justices also questioned the extent of travel by electricity in water attempting to define the extent of Ameren’s potential liability area surrounding any given dock. The dock was placed through a permit issued by Ameren. That is not in dispute, but that does not equate to “primarily or actual commercial activity” as outlined by the RUA to remove exemption status, according to McPherson. While Ameren is not required by its licensing agreement to charge the fee, it is not something that the company makes money on as the fees are a negligible sum to help cover the cost of the program but not enough to cover all the costs, let alone make a profit, McPherson said. While one justice questioned whether the fee was high enough to be profitable was relevant to whether its a commercial activity, McPherson stated that Ameren would be in violation with FERC and the law if it attempted to make money from the program as a business would. He estimated the fees only covered about half the cost of the program. McPherson called the fee a dock owner’s choice for the “privilege” of having a dock on project land for the benefit of the dock owner, not Ameren. It was noted that Ameren does not sell electricity to lakefront properties, and so does not have any commercial activity in that regard either. McPherson also stated that if someone uses the dock they must have permission from the owner of the dock, not Ameren, while the lake itself is open to anyone without a fee. This is an argument that the case is trying to transfer owners’ liability or premise liability for the dock to a permitting agency. As the operator of the dam and owner of the lake, Ameren is required to “foster recreational use of the lake” under the terms of its agreement with FERC, added McPherson. The RUA is also directed at fostering recreational use of Missouri’s resources through protection from liability, he said. In addition to Ameren becoming liable for the 25,000 docks permitted on the 55,000-acre lake, McPherson said that other recreational lands would become “heavily incentivized” not to allow recreational use by the general public anymore if Ameren was found to not have immunity under the RUA in this case. Due to the widespread implications of the case, the Missouri Association of Trial Attorneys (MATA) and Timberhill-Riverbend, Inc. have filed briefs supporting different sides - MATA for Anderson and Timberhill-Riverbend for Ameren. These amd briefs filed by Anderson and Ameren will be considered in the justices’ decision. It is uncertain when the Court will hand down a decision, but there are typically two dates each month on which it may hand down rulings or opinions. The next hand-down dates are Feb. 24 and March 10.