(Updated 3:50 p.m., June 16, 2015 with ruling from the Supreme Court.)
The Missouri Supreme Court has ruled that Ameren Missouri is not responsible for the deaths of two young children who drowned after being electrocuted on the Lake of the Ozarks.
Ameren owns the lake, which is part of its Osage power plant. Alexandra and Brayden Anderson were swimming in the lake on July 4, 2012, when they were shocked by a stray current from the family's dock and drowned. Their mother sued Ameren, saying the company regulated the installation of docks on the lake and was therefore liable for the deaths.
In a 5-2 decision, the court disagreed. Writing for the majority, Judge Paul C. Wilson said, "Because Anderson does not (and cannot) allege that UE charged her (or her children) an admission fee for entry into the lake, UE is immune from Anderson’s claims under the RUA [Recreational Use Act] and section 537.346."
In a dissenting opinion joined by Judge George Draper, Judge Richard Teitelman wrote that Ameren lost its immunity under the RUA because the children were using the dock to enter and enjoy the lake and because Ameren charged a fee for the docks to be installed. The RUA only provides protection from legal liability if the activities are free.
Our original story
The Missouri Supreme Court will hear arguments Wednesday in a case that will help determine when private companies are responsible if someone dies while using their property for recreation.
The case stems from an incident in 2012, with the deaths of 14-year-old Alexandra Anderson and her 8-year-old brother Brayden. The siblings were swimming in the Lake of the Ozarks on July 4, 2012, when they were electrocuted by a stray current from the family's dock and drowned. Their mother, Angela, filed a wrongful death lawsuit against Ameren Missouri which owns the lake as part of its Osage power plant.
The state's Recreational Use Act is meant to encourage landowners to allow things like hunting and swimming on their properties by protecting landowners from lawsuits if they don't charge for those activities. But the immunity does not apply if the land is primarily used for commercial purposes. For the purposes of the law, the definition of land also includes bodies of water like Lake of the Ozarks.
The question in front of the judges is whether the fact that Ameren charges fees to install docks on the shoreline makes it liable for the Anderson children's deaths.
A judge in Morgan County ruled in September, 2013 that Ameren was immune from the Anderson's lawsuit under the Recreational Use Act. That decision was reversed in June, 2014 by a a three-judge panel. Ameren appealed to the Supreme Court.
The Legal Arguments
Both sides agree that Ameren has the right to collect permitting fees from homeowners who want to install a dock on their property, and that the Andersons had paid those fees before installing their dock. But they differ on whether those fees mean Ameren is responsible for the deaths of Brayden and Alexandra.
Attorneys for the family argue the following:
- By charging the fees, Ameren took responsibility for the condition of the docks.
- Ameren knew that many docks, including the one owned by the Andersons, did not contain a ground fault interrupter to prevent stray currents from entering the water. They contend the company made no effort to tell property owners about the danger.
- The mere act of charging the fees means Ameren is no longer eligible for protection under the Recreational Use Act. "The family had paid a fee to place and use the dock, which is what the Anderson children were doing at the time of their deaths," reads the brief.
- Ameren is not eligible for protection under the Recreational Use Act because the entire lake was created solely for the purpose of generating electricity for the Osage power plant. State law exempts land that's used mostly for commercial reasons.
- Even if the lake is primarily used for recreational purposes, the fees that Ameren charges to install the docks are commercial in nature. Ameren had no recreational interest in the Anderson's dock -- its only interest was in the collection of fees.
"But for the permitting scheme of Union Electric [Ameren,] the dock would not have been present and no stray current would have been present," the brief concludes. "Therefore, Union Electric Company [Ameren] is not entitled to assert immunity in this case."
Ameren's attorneys argue the exact opposite. The Anderson children were swimming in the lake when they were killed, and were doing so free of charge.
"The plaintiff's petition concedes all for elements of Ameren's right to immunity in this case," the brief says. "According to the petition, Ameren owned the lake, and the minor children entered the lake without charge, and for recreational use. ... Immunity is not lost if a fee is charged for something other than the free use of the recreational area."
Ameren's attorneys also call the notion that the entire lake is used for commercial purposes "absurd."
"The water where the Anderson children were playing on the date of the occurrence was not used by Ameren or the plaintiff for 'commercial, industrial, mining or manufacturing purposes' and was not non-covered land," they write. "The children entered the water for recreational use."
Two outside groups also filed briefs. In support of the Anderson family, the Missouri Association of Trial Lawyers point out that there is a direct connection between the fee being charged and the dock that caused the injury. Its members are also concerned that "the granting of immunity to corporations for their own negligence by statute affects access to the courts to the citizens of our state."
Lawyers representing Timberhill-Riverbend, Inc. sided with Ameren. The corporation owns a farm in Osage County that has commercial pecan and timber operations, but also allows groups onto the property for hunting and fishing without charge.
Its attorneys contend that allowing the appeals court ruling to stand would limit recreational opportunities because companies like Timberhill-Riverbend would be "incentivized to restrict the public's access for fear of liability." The fact that a person pays a dock fee or a parking fee does not eliminate the protection available under the Recreational Use Act if the public doesn't have to pay to use the recreational area itself.
The Supreme Court will not make a decision on Wednesday.
Read Ameren's brief
Read the brief from Timberhill-Riverbend.
Follow Rachel Lippmann on Twitter: @rlippmann