Opinion handed down June 16, 2015
I. Facts and Holding
Union Electric (“UE”) owns the Lake of the Ozarks (“Lake”).[1] Anderson owns land along the Lake’s shoreline.[2] Anderson alleged that UE prohibited individuals who own real estate along the Lake from building, maintaining, or using docks that extend over the Lake without first obtaining a permit from UE.[3] As a condition prerequisite of obtaining these permits, UE is enabled to impose various requirements that regulate the way in which landowners supply electricity to their docks.[4] Anderson also alleged that UE required them to pay a “use fee.”[5]
Anderson supplied electricity to her dock; however, she chose not to protect this supply with ground fault interrupt (“GFI”) devices to prevent injury from electrical faults.[6] Anderson’s children were killed by a stray electrical current while swimming in the Lake near the dock.[7] Anderson alleged that UE was negligent in the following respects: (1) UE failed to “adequately inspect the Anderson dock to ensure adequate ground fault interrupter protection”; (2) UE failed to include, as a precondition to dock permitting, GFI protective devices at or above the seawall; (3) UE failed to warn dock owners, including the Andersons, “of the need for ground fault interrupter protective devices at or above the dock seawalls”; and (4) “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 of the [nearby] restaurant property.”[8]
UE moved to dismiss Anderson’s suit on the ground that it is immune under the Recreational Use Act (“RUA”):[9]
The circuit court agreed, finding “Pursuant to R.S.Mo. § 537.346, Ameren owes no duty of care to any person who enters on the land without charge to keep his land safe for recreational use or to give any general or specific warning with respect to any natural or artificial condition, structure, or personal property thereon.”[10]
The Supreme Court of Missouri affirmed the trial court’s holdings.[11]
II. Legal Background
When a landowner is entitled to immunity under the RUA, the trial court has no discretion and must dismiss the petition under Supreme Court of Missouri Rule 55.27(a)(6).[12] The RUA confers tort immunity to landowners who “open their land to the public free of charge for recreational use.”[13] Missouri Revised Statutes Section 537.346 provides “an owner of land owes no duty of care to any person who enters on the land without charge to keep his land safe for recreational use or to give any general or specific warning with respect to any natural or artificial condition, structure, or personal property thereon.”[14] “Charge” is defined as: “the admission price or fee asked by an owner of land or an invitation or permission without price or fee to use land for recreational purposes when such invitation or permission is given for the purpose of sales promotion, advertising or public goodwill in fostering business purposes.”[15]
In Wilson v. United States,[16] the U.S. Court of Appeals for the Eighth Circuit held that immunity under Missouri's RUA applied even though the injured boy scout was required to pay a two dollar fee to stay on Fort Leonard Wood property overnight.[17] The court held that this overnight fee was not a “charge” as defined in Missouri Revised Statutes Section 537.345(1) because it “was not charged to members of the public for entry on to the land or for use of the land.”[18] The court held the only way to interpret the word charge is as “an actual admission price paid for permission to enter the land at the time of its use for recreational purposes.”[19]
Missouri Revised Statutes Section 537.348 provides for an exception to the immunity granted in Section 537.346. This exception states: “Nothing in this act shall be construed to . . . limit liability that otherwise would be incurred by . . . owners of land for . . . (3) Injuries occurring on or in . . . (d) Any noncovered land.”[20] The term “noncovered land” means:
any portion of any land, the surface of which portion is actually used primarily for commercial, industrial, mining or manufacturing purposes; provided, however, that use of any portion of any land primarily for agricultural, grazing, forestry, conservation, natural area, owner's recreation or similar or related uses or purposes shall not under any circumstances be deemed to be use of such portion for commercial, industrial, mining or manufacturing purposes.[21]
In Foster v. St. Louis County,[22] the plaintiff argued that St. Louis County used the park for a commercial purpose because – even though the County's picnic fee was not an admission “charge” – the mere fact that the County charged picnic and other fees necessarily meant the County's primary use of the park was for commercial purposes.[23] The court rejected that argument, holding that Section 537.348(3)(d) cannot apply as long as the injury occurs on a portion of the land “open to the public for recreational use free of charge.”[24]
III. Instant Decision
Anderson first contended that UE is not entitled to immunity under Section 537.346 because her children did not enter on the land without charge.[25] She argued that the “use fee” she paid UE for the dock permit constitutes a “charge” within the meaning of Section 537.346.[26] The court used the definition of “charge” found in Section 537.345(1), as well as precedent from Wilson v. United States to interpret that word as essentially synonymous with an “admission fee.”[27] Because the court defined charge as “an actual admission price paid for permission to enter the land at the time of its use for recreational purposes,” it held that the “use fee” Anderson paid to UE to obtain the permit did not constitute a “charge.”[28] Because Anderson’s children were free to enter the lake without paying an “admission fee,” UE qualified for immunity under Section 537.346.[29]
Alternatively, Anderson argued that even if UE was entitled to immunity under Section 537.346, it was still liable because her claims fell within one of the exceptions enumerated in Section 537.348.[30] Anderson argued the “dock is ‘noncovered land’ under the exception in section 537.348(3)(d) because UE uses that portion of the Lake where her dock is located primarily for commercial purposes.”[31] Anderson contended her dock was being used for a commercial purpose, because UE requires dock permits and charges fees for those permits.[32] The court used Wilson v. United States and Foster v. St. Louis County as support to reject Anderson’s argument.[33]
The court noted “the focus of the commercial purpose analysis is on the portion of the land on which the injury occurred” and the exception of “section 537.348(3)(d) cannot apply as long as the injury occurs on a portion of the land ‘open to the public for recreational use free of charge.’”[34] Because “Anderson's children were killed while swimming in a portion of the Lake that was open to them for recreational use free of charge,” the exception did not apply.[35] The court further stated that even if it conceded Anderson’s argument that all private docks on the Lake are “noncovered land,” the exception is still inapplicable because the children were not killed on the dock, they were killed while swimming in the Lake.[36] Anderson’s children were simply not killed while they were on “noncovered land.”[37]
The Court held the act of charging a fee does not necessarily convert the transaction into a commercial one.[38] A commercial purpose would only result from UE charging a fee if “the primary aim of those fees is to generate a profit or other business advantage.”[39] Because the purpose of the permit fees was not primarily commercial, the claims in Anderson’s petition did not fall within the exception.[40]
IV. Comment
The dissent believed the immunity provisions of the RUA should have been strictly construed and found that the “use fee” imposed by UE amounted to a “charge” to enter the Lake of the Ozarks.[41] Because the children used the dock to enter the lake and partake in recreational activities, and because it was uncontested that UE required the dock owners to pay a fee for the dock's placement and use, the dissent strictly construed the statute to find the “dock fees amounted to a “charge” for the children to use the dock to access the lake.”[42] Thus, the dissent would have reversed the trial court’s holding that UE was immune via the RUA.[43]
[13] 463 S.W.3d at 786.
[16] 989 F.2d 953 (8th Cir. 1993).
[22] 239 S.W.3d 599 (Mo. 2007) (en banc).
[24] Id (noting that the “focus of the commercial purpose analysis is on the portion of the land on which the injury occurred”).
[25] 463 S.W.3d at 787.
