             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT

ANGELA ANDERSON,                                 )
                                                 )
                                   Appellant,    )
                                                 )    WD76927
v.                                               )
                                                 )    OPINION FILED:
                                                 )    June 10, 2014
UNION ELECTRIC COMPANY,                          )
                                                 )
                                 Respondent.     )


                Appeal from the Circuit Court of Morgan County, Missouri
                        The Honorable Kenneth M. Hayden, Judge

                  Before Division III: Mark D. Pfeiffer, Presiding Judge, and
                   Lisa White Hardwick and Anthony Rex Gabbert, Judges

       Angela Anderson (“Anderson”) appeals the judgment of the Circuit Court of Morgan

County, Missouri (“trial court”), dismissing her petition for failure to state a claim and denying

her motion to amend her petition. The trial court dismissed Anderson‟s petition, finding that

Union Electric Company, d/b/a Ameren Missouri (“UE”), was immune from the present lawsuit

pursuant to the dictates of Missouri‟s Recreational Use Act, §§ 537.345-537.348, RSMo

(“RUA”). On appeal, Anderson claims that the RUA does not apply to UE, because, as her

petition alleged, UE charged a “use fee” for lake residents to “use and enjoy” the lake through

their docks. Anderson also alleges that the “land” on which the accident giving rise to this case
occurred is further excepted from the RUA‟s protection because it is “non-covered land” as

defined in the Act. Finding that the alleged “use fee” removes this case from the provisions of

the RUA, we reverse and remand.

                                    Factual and Procedural Background

         On July 4, 2012, Alexandra Anderson (age fourteen) and her brother, Brayden Anderson

(age eight), were playing in the water near the dock1 of their family‟s lakefront home at the Lake

of the Ozarks in Morgan County, Missouri. While the children played, 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.

         Angela Anderson, the children‟s mother, filed a wrongful death suit against UE, who

owns the Lake of the Ozarks, alleging that UE‟s negligence was the cause of the children‟s

deaths. Besides merely owning the Lake of the Ozarks, Anderson‟s petition alleged, UE charged

an annual user fee and/or a lump sum use fee as a “condition or predicate for placement,

maintenance, use and/or enjoyment of docks on the Lake of the Ozarks.” The petition also

alleged that UE charged enforcement fees to compel compliance with dock permitting

requirements:

         Said permitting requirements included provisions for certain requirements for
         electric power extensions on docks on the Lake of the Ozarks. At all times



         1
           Anderson‟s petition alleges that the children were “swimming in the vicinity of the Anderson dock when
they encountered stray electrical current.” Anderson‟s proposed amended petition, which the trial court disallowed
by denying leave to amend, alleged, in addition, that “Brayden[‟s] and Alexandra‟s entry to the Defendant‟s
property was made, by and through and upon the aforementioned dock.” In determining the propriety of a trial
court‟s grant of a motion to dismiss, “we give the pleadings their broadest intendment and most liberal construction,
and we accord the petition „all reasonable inferences deducible from the facts stated.‟” Fugate v. Jackson Hewitt,
Inc., 347 S.W.3d 81, 85 (Mo. App. W.D. 2011) (quoting Lakeridge Enters., Inc. v. Knox, 311 S.W.3d 268, 271 (Mo.
App. W.D. 2010)). See also City of Branson v. Hotels.com, LP, 396 S.W.3d 378, 382 (Mo. App. S.D. 2013) (“[A]
court takes a plaintiff‟s averments as true and liberally grants plaintiff all reasonable inferences.”). Therefore, under
either version of Anderson‟s petition, the reasonable inference is that the children accessed the water in which they
were playing from the Anderson dock. At oral argument, counsel for UE conceded that this was a reasonable
inference from the facts alleged in Anderson‟s original pleading.


                                                           2
        relevant Defendant [UE] maintained authority to revoke dock permits for any
        dock Defendant deemed, inter alia, “unsafe.”

        Finally, the petition alleged that UE should have known that adequate electrical

protection of docks located on its lake 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.

        UE filed a motion to dismiss Anderson‟s petition, alleging that UE was immune under

the RUA in that it allowed the Andersons to enter its lake for recreational purposes without

charge. The trial court granted the motion to dismiss. This appeal follows.

                                         Standard of Review

        We review a trial court‟s grant of a motion to dismiss de novo. Chastain v. City of

Kansas City, 289 S.W.3d 759, 763 (Mo. App. W.D. 2009). “A motion to dismiss for failure to

state a claim upon which relief can be granted is solely a test of the adequacy of the plaintiff‟s

petition.” Id. We examine the plaintiff‟s petition, accepting as true all facts alleged and

construing them liberally in favor of the plaintiff to determine whether she has stated a claim

upon which relief can be granted. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008).

                                               Analysis

        Anderson‟s first point on appeal is that the trial court erred in dismissing her petition

because UE charged residents a user fee for accessing the lake from their docks, and therefore,

the immunity granted by the RUA does not apply to UE.

        Section 537.346 provides:

        Except as provided in sections 537.345 to 537.348, and section 537.351, 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 specific warning
        with respect to any natural or artificial condition, structure, or personal property
        thereon.



                                                    3
(Emphasis added.)

       Section 537.347 provides:

       Except as provided in sections 537.345 to 537.348, an owner of land who directly
       or indirectly invites or permits any person to enter his or her land for recreational
       use, without charge, whether or not the land is posted, or who directly or
       indirectly invites or permits any person to enter his or her land for recreational use
       in compliance with a state-administered recreational access program, does not
       thereby:

       (1) Extend any assurance that the premises are safe for any purpose;

       (2) Confer upon such person the status of an invitee, or any other status requiring
       of the owner a duty of special or reasonable care;

       (3) Assume responsibility for or incur liability for any injury to such person or
       property caused by any natural or artificial condition, structure or personal
       property on the premises; or

       (4) Assume responsibility for any damage or injury to any other person or
       property caused by an act or omission of such person.

(Emphasis added.) “Land” is defined to be “all real property, land and water, and all structures,

fixtures, equipment and machinery hereon.”           § 537.345(2).   “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.”

§ 537.345(1) (emphasis added).

       As stated above, in its motion to dismiss, UE claimed that it was immune under sections

537.346 and 537.347 because it allowed the Andersons to enter its lake for recreational purposes

without charge. The motion claimed that Anderson “conceded” that her family entered the lake

for recreational purposes without charge. The trial court accepted UE‟s argument and dismissed

the petition citing Lonergan v. May, 53 S.W.3d 122, 129 (Mo. App. W.D. 2001).




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         Anderson did not, however, concede that her family used the Lake of the Ozarks for

recreational purposes without charge. Her petition alleged 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. In addition, the petition alleged that dock owners were required to have dock

permits and to comply with all permitting requirements or face “enforcement fees.”

         The Anderson family was not charged an admission price each time they entered the lake

from their dock. However, section 537.345(1) defines “charge” as “the admission price or fee

asked by an owner of land.” (Emphasis added.) Anderson argues that the user fees her family

paid for the construction, use, and enjoyment of their family dock, on and around which the

Anderson children were playing when they were killed, are sufficient to remove the Andersons‟

use of the lake from the provisions of sections 537.346 and 537.347, such that UE is not immune

from liability under the RUA. We agree.

         User fees were apparently not at issue in the Lonergan case that was cited by the trial

court in its judgment dismissing the petition. In fact, in Lonergan, we expressly noted that, at

that time, dock permits from UE were issued free of charge, Lonergan, 53 S.W.3d at 125, and

stated, “[S]ection 537.346 of our statute[] relieves the landowner of any duty to keep his land

safe so long as the owner does not charge a user fee.” Id. at 127 (emphasis added). 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.2 The


         2
          UE cites to Foster v. St. Louis County, 239 S.W.3d 599 (Mo. banc 2007), and argues that the dock permit
fee was not the fee for the Andersons‟ “admission” into the lake. Foster is distinguishable from this case. In Foster,


                                                          5
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.3

         Point I is granted.

         Anderson‟s second point on appeal is that the trial court erred in denying her motion to

amend her petition. Because we conclude that her original petition should not have been

dismissed for failure to state a claim, Anderson may decide to stand on her initial petition upon

remand. However, if Anderson still desires to amend her petition upon remand, the trial court is

directed to entertain the motion pursuant to Rule 55.33, and to grant leave to amend if it

determines that “justice so requires.” And given the early stage of the proceedings in this case at

the time Anderson made her motion to amend the petition, this court can see no reason why her

motion should not have been granted in the interest of justice. In any event, at this point,

Anderson‟s second point on appeal is denied as moot.




the plaintiff fell into a hole and was injured while he was playing football at a park. Id. at 600. Foster argued that
the RUA did not render St. Louis County, who owned the park, immune from liability because it charged some park
patrons a fee in exchange for their use of the park‟s picnic areas; Foster himself paid no fee whatsoever. Id. at 602.
The Missouri Supreme Court concluded that the County‟s act of charging some patrons of the park a fee did not
preclude application of the RUA because Foster paid no fee and was injured in a part of the park that was never
subject to fees. Id. In contrast, here: (1) the petition alleges that the Andersons were charged a fee for the use and
enjoyment of their docks; and (2) the reasonable inference from the petition is that the children were using and
enjoying the dock as a means to access the part of the lake near their dock when they were killed.
          3
            Since Anderson alleged that user fees were charged, taking UE outside of the protections of the RUA, it is
not necessary to decide whether the “non-covered land” exception to the RUA applies to the portion of the Lake of
the Ozarks surrounding the shoreline and in which the docks are located. This was an issue briefed by the parties
and was the basis for this court‟s decision in Lonergan. However, because the issue raised by the appellants in
Lonergan was the “primary commercial use” of the Lake of the Ozarks, and not the “recreational” purpose of the
lake, no issue was raised as to section 537.348(3)(d)‟s reference to the “owner’s recreation,” and that language was
therefore not addressed. Lonergan v. May, 53 S.W.3d 122 (Mo. App. W.D. 2001). Here, however, Anderson
contests the “owner‟s recreation[al]” use of the lake, claiming that UE, the owner, does not use the lake primarily, or
at all, for recreational purposes. Without deciding the issue, we note that Anderson may have an additional basis
upon which to avoid application of the immunity protection of the RUA.


                                                          6
                                         Conclusion

       We reverse the judgment of the trial court and remand for further proceedings consistent

with this opinion.




                                           Mark D. Pfeiffer, Presiding Judge

Lisa White Hardwick and Anthony Rex Gabbert, Judges, concur.




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