Wrongful death and duty to keep land safe

Missouri Case Law

FIELDS v. HENRICH, WD66051 (Mo.App.W.D. 12-19-2006) MELVIN
MICHAEL FIELDS AND CHRISTINE WARDLOW, Respondents v.
NORBERT HENRICH AND SHARON K. HENRICH, Appellants.
WD66051. Missouri Court of Appeals, Western District.
Opinion filed: December 19, 2006.

Appeal from the Circuit Court of Clay County, Missouri
Honorable Anthony Rex Gabbert, Judge.

Before: JOSEPH M. ELLIS, P.J., ROBERT G. ULRICH, and RONALD
R. HOLLIGER, JJ.

ROBERT G. ULRICH, Judge.

Norbert and Sharon Henrich appeal the order of the trial
court granting Melvin Michael Fields and Christine Wardlow
a new trial following a jury verdict in favor of the
Henriches. Mr. Fields and Ms. Wardlow (Plaintiffs) brought
an action for the wrongful death of their two-year-old son,
Melvin Michael Fields II (Michael), against the Henriches
(Defendants) alleging that Defendants were negligent in
failing to erect a fence or wall around a sewage pond on
their property. Michael was found in the pond after he
wandered from Defendants’ neighbors’ yard and died four
days later as a result of near drowning.[fn1] The trial
court granted Plaintiffs’ motion for a new trial based on
its erroneous application of the Missouri Recreational Land
Use Act (RUA), section 537.345 through 537.348.[fn2] On
appeal, Defendants claim that the trial court erred in
granting the new trial asserting that the RUA was
applicable and required Plaintiffs to prove gross
negligence. Defendants also claim that the trial court erred
in denying their motions for directed verdict because the
pond was an open, obvious, and nondangerous condition that
they had no duty to safeguard. The judgment of the trial
court is reversed, and the case is remanded with
directions.

Facts

Defendants lived in a residential subdivision in Clay
County outside of the City of Smithville. The average size
of the lots in the neighborhood was three acres.
Defendants’ lot was eight acres and contained a
single-family residence. A sewage aeration pond was
situated in the front yard. The pond measured approximately
thirty feet by twenty-five feet and was four feet deep at
its deepest point. It was not fenced at the time of the
accident.

On May 16, 1998, Michael and his grandmother were attending
a graduation party at the home of Defendants’ neighbor.
Michael’s grandmother was conversing with other guests on
the deck when she noticed that Michael, who had been
running in and out of the house, had disappeared. She and
the other guests hollered for the child, scattered, and
began looking for him.

After becoming aware that people were on their property
looking for someone, Mr. Henrich and his son found Michael
in the aeration pond. His son ran back to the house to call
911 and get his mother. Mr. Henrich sensed no sign of life
in the child. He and Mrs. Henrich then began to perform CPR
on Michael until law enforcement and EMTs arrived. Michael
was transported to Liberty Hospital and then to Children’s
Mercy Hospital. He died four days later.

At trial, Mr. Henrich testified that in 1996, he removed a
fence that surrounded the pond because it was in disrepair.
He did not replace the fence immediately, instead
completing other repair and clean-up activities on the
property. Mr. Henrich stated that he believed the fence was
originally installed to keep out animals. He was not aware
of any ordinance that required him to fence around the
aeration pond. When he became aware that the neighbor’s
dogs had gotten into the pond, he planned to put a fence
around it. At the time of the tragedy, Mr. Henrich had
purchased materials to construct a fence to keep dogs,
livestock, and other animals out of the pond though it had
not yet been constructed.

Procedural History

This case was initially tried in November 2001 with a
verdict for Plaintiffs in the amount of $10,000. Plaintiffs
filed a motion for new trial on the damages issue only, and
Defendants filed a motion for JNOV and, in the alternative,
for a new trial. The trial court granted a new trial on all
issues. Defendants appealed, but this court dismissed their
appeal on grounds that they were not aggrieved by the trial
court’s order granting a new trial. Fields v. Henrich, 112
S.W.3d 50 (Mo.App. W.D. 2003).

The case was retried in June 2005. At the close of
Plaintiffs’ case and at the close of all evidence,
Defendants moved for directed verdict arguing that they had
no duty to contemplate that a toddler would not have
appropriate supervision in the area of their pond and, thus,
no duty to guard their pond. The trial court overruled the
motions, and the case was submitted to the jury. The court
instructed the jury based on the RUA:

INSTRUCTION NUMBER 7

Your verdict must be for plaintiffs and against Defendant
Sharon Henrich if you believe:

First, the pond on defendants’ property was a dangerous
condition, and

Second, said defendant knew or should have known that the
pond on defendants’ property was a dangerous condition,
and

Third, said defendant’s failure to warn of or guard the
pond on defendants’ property involved gross negligence on
her part, and

Fourth, as a direct result of said defendant’s failure to
warn of or guard the pond on defendants’ property, Michael
Fields died.

Instruction Number 8 was the same as Number 7 except that it
applied to Mr. Henrich. Instruction Number 6 defined the
term “grossly negligent” or “gross negligence” as “the
showing of complete indifference to or conscious disregard
for the safety of others.”

The jury returned its verdict in favor of Defendants, and
the trial court entered its judgment on the verdict.
Plaintiffs filed a motion for new trial arguing that the
RUA did not apply to the facts of this case and, thus, that
the jury should have been instructed on simple negligence
rather than gross negligence. The trial court granted
Plaintiff’s motion for new trial reversing its decision that
the RUA and instructions consistent with it reflected
applicable law. This appeal by Defendants followed.

Point One

In their first point on appeal, Defendants claim that the
trial court erred in granting Plaintiffs’ motion for new
trial because the RUA was applicable, the case was properly
submitted on instructions consistent with the RUA requiring
proof of gross negligence and the presence of a dangerous
condition on the land to establish culpability, and the
jury’s verdict for Defendant was correct.

The RUA creates “tort immunity for landowners who open
their land to the public free of charge for recreational
use.” Lonergan v. May, 53 S.W.3d 122, 127 (Mo.App.W.D.
2001). The purpose of the RUA is “to encourage the free use
of land for recreational purposes in order to preserve and
utilize our natural resources.” Id. Specifically, section
537.346 provides:

Except as provided in sections 537.345 to 537.348, 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.

Recreational use is defined in the RUA as “hunting, fishing,
camping, picnicking, biking, nature study, winter sports,
viewing or enjoying archaeological or scenic sites, or
other similar activities undertaken for recreation,
exercise, education, relaxation, or pleasure on land owned
by another.” § 537.345(4). A landowner may incur
liability, however, for malicious or grossly negligent
failure to guard or warn against a dangerous condition or
for injuries to a person who has paid a charge for entry to
the land. § 537.348(1) & (2). Additionally, a
landowner may be liable for injuries occurring on or in any
land within the boundaries of a city or town, a swimming
pool, any residential area, or any noncovered land.
§ 537.348(3). A residential area is “a tract of land
of one acre or less predominately used for residential
purposes, or a tract of land of any size used for
multifamily residential services.” § 537.348(3)(c).

Defendants contend that because their property was outside
the city and was eight acres containing a single-family
residence and Michael never paid any charge for his entry
onto the property, they qualified for immunity under the
literal language of the RUA and did not fall with any
exception thereunder. Defendants’ contention, however,
ignores the phrase “for recreational use” in the RUA. The
primary rule of statutory construction is to ascertain the
intent of the legislature from the language used and to
give effect to that intent if possible. State ex rel. Nixon
v. QuikTrip Corp., 133 S.W.3d 33, 37 (Mo. banc
2004)(quoting Wolff Shoe Co. v. Dir. of Revenue, 762 S.W.2d
29, 31 (Mo. banc 1988)). Statutory construction requires
that every word of the statute be given meaning and effect,
and no words are treated as surplusage. Crack Team USA,
Inc. v. Am. Arbitration Ass’n, 128 S.W.3d 580, 581-82
(Mo.App.E.D. 2004). “Courts will reject an interpretation
of a statute that requires ignoring the very words of the
statute.” State ex rel. Womack v. Rolf, 173 S.W.3d 634, 638
(Mo. banc 2005).

Section 537.346 establishes the general rule that an owner
of land owes no duty of care “to keep his land safe for
recreational use.” (Emphasis added.) In determining whether
a landowner falls within the ambit of section 537.346 and,
thus, enjoys immunity against negligence actions, four
factors must be satisfied: (1) an owner of land; (2) entry
upon the land; (3) entry upon the land without charge; and
(4) entry for recreational use. Lonergan, 53 S.W.3d at 128.
If all factors are satisfied, the owner owes no duty to the
entrants to keep his land safe or to give any general or
specific warnings with respect to any natural or artificial
condition, structure, or personal property on the land
unless one of the exceptions contained in section 537.348
apply. Id. Additionally, section 537.347 outlines the
effect of “an owner of land who directly or indirectly
invites or permits any person to enter his land for
recreational use, without charge.” (Emphasis added.) Such
owner does not extend certain assurances or assume
responsibility for certain injuries. Id. Both sections
537.346 and 537.347 refer to and require “recreational use”
of the land before a landowner may enjoy immunity against
tort actions. The words “for recreational use” must be
given meaning and effect. Defendants’ contention would treat
the words “for recreational use” as mere surplusage. It
would require ignoring the very words of the Act including
a whole subsection defining “recreational use” and,
further, would extend immunity far too broadly than the
legislature intended. Defendants’ contention is, therefore,
without merit. Recreational use of the land is required for
immunity under the RUA.

The RUA did not apply to the circumstances of this case.
Defendants’ property was an eight-acre residential lot.
They maintained an unfenced sewage aeration pond at the
front of their property. No evidence was offered that they
allowed their front yard or any part of their large lot
including the aeration pond to be used for recreational
purposes. No evidence was presented that they directly or
indirectly invited or permitted any person to enter their
property for recreational use. Defendants simply did not
qualify under the language of the RUA for the protection
afforded to those who allow recreational use of their land.
Therefore, the trial court correctly found that submission
of verdict directing instructions consistent with the RUA
was erroneous. Whether Plaintiffs are entitled to a new
trial, however, is dependent upon whether Plaintiffs
otherwise made a submissible case, which Defendants
challenge in point two.

Point Two

In their second point on appeal, Defendants claim that the
trial court erred in denying their motions for directed
verdict at the close of Plaintiffs’ case and at the close
of all the evidence. They allege that, even without the
protection of the RUA, they had no duty to safeguard the
pond because the pond was an open, obvious, and
non-dangerous condition as a matter of law.

In reviewing the denial of a motion for directed verdict by
a defendant, the appellate court determines whether the
plaintiff submitted substantial evidence at trial that
tended to prove the facts essential to the plaintiff’s
claim. Lasky v. Union Elec. Co., 936 S.W.2d 797, 801 (Mo.
banc 1997). The evidence is viewed in the light most
favorable to the plaintiff, affording the plaintiff all
reasonable inferences from the evidence and disregarding
the defendant’s evidence that contradicts the plaintiff’s
claims. Id.

As discussed above, the jury was instructed consistent with
the RUA over Plaintiffs’ objection, and the trial court
correctly found such instructions erroneous. Plaintiffs’
case and proposed verdict directors were based on a
modified attractive nuisance doctrine, section 339
Restatement (Second) of Torts (1965). The question is
whether Plaintiffs made a submissible case under this
theory.

In Missouri, the status of the one going on the land of
another establishes the legal framework by which the court
determines as a question of law the duty of care owed by
the possessor. Humphrey v. Glenn, 167 S.W.3d 680, 683 (Mo.
banc 2005)(quoting Seward v. Terminal R.R. Ass’n of St.
Louis, 854 S.W.2d 426, 428 (Mo. banc 1993)). Generally, a
possessor of land is not liable for harm caused to a
trespasser by failure to put land in a reasonably safe
condition. Id. (quoting Seward, 854 S.W.2d at 428). One
exception to the “no duty” rule regarding trespassers is
that a possessor of land owes a duty of care to child
trespassers for a dangerous artificial condition he
maintains at a place on the land that children are likely to
trespass. Id. (citing Salanski v. Enright, 452 S.W.2d 143,
144-46, n. 1 (Mo. 1970)). Such exception is set out in
Section 339 Restatement (Second) of Torts (1965), which the
Missouri Supreme Court adopted in 1970[fn3] modifying the
attractive nuisance doctrine previously applied in
Missouri. It provides:

§ 339. Artificial Conditions Highly Dangerous to
Trespassing Children

A possessor of land is subject to liability for physical
harm to children trespassing thereon caused by an
artificial condition upon the land if

(a) the place where the condition exists is one upon
which the possessor knows or has reason to know that
children are likely to trespass, and

(b) the condition is one of which the possessor knows or
has reason to know and which he realizes or should realize
will involve an unreasonable risk of death or serious
bodily harm to such children, and

(c) the children because of their youth do not discover
the condition or realize the risk involved in
intermeddling with it or in coming within the area made
dangerous by it, and

(d) the utility to the possessor of maintaining the
condition and the burden of eliminating the danger are
slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to
eliminate the danger or otherwise to protect the children.

RESTATEMENT (SECOND) OF TORTS § 339 (1965). Liability
under section 339 exists only with respect to dangerous
conditions or structures where the danger is not open and
obvious to the injured party. Miller v. River Hills Dev.,
831 S.W.2d 756, 762 (Mo.App.E.D. 1992); Pitts v. Fred Weber
Contractor, Inc., 466 S.W.2d 124, 127 (Mo.App. 1971). A
condition known to be dangerous to an adult will not
necessarily be held to be such to a child because of lack
of maturity. Id. But the duty of the possessor of land
“does not extend to those conditions the existence of which
is obvious even to children and the risk of which should be
fully realized by them.” Miller, 831 S.W.2d at 762 (quoting
RESTATEMENT (SECOND) OF TORTS § 339 cmt. i (1965)).
Accordingly, courts have specified certain conditions that
trespassing children, as a matter of law, can be expected
to understand as discussed in comment j of section 339:

There are many dangers, such a [sic] those of fire and
water, or of falling from a height, which under ordinary
conditions may reasonably be expected to be fully
understood and appreciated by any child of an age to be
allowed at large. To such conditions the rule stated in
this Section ordinarily has no application, in the absence
of some other factor creating a special risk that the
child will not avoid the danger, such as the fact that the
condition is so hidden as not to be readily visible, or a
distracting influence which makes it likely that the child
will not discover or appreciate it.

RESTATEMENT (SECOND) OF TORTS § 339 cmt. j (1965).
Pools and ponds are examples of such conditions or dangers
that a trespassing child of sufficient age to be allowed at
large may be expected to fully understand. Crawford v. Pac.
W. Mobile Estates, Inc., 548 S.W.2d 216, 221 (Mo.App.
1977). In the pool and pond cases, cited by Defendants here
in arguing that Plaintiffs failed to make a submissible
case, the bodies of water constitute open and obvious
danger that should be within the comprehension of any child
old enough to be permitted to roam at large, and landowners
are not required to “child-proof” their premises against
the obvious danger. Id. See e.g. Finn v. Newsam, 709 S.W.2d
889, 892 (Mo.App.W.D. 1986) (where plaintiffs failed to
make a submissible case of negligence under section 339 for
drowning death of seven year old boy because the pond
constituted an open and obvious danger that a child old
enough to roam the fields should have comprehended). See
also Baker v. Praver & Sons, Inc., 361 S.W.2d 667 (Mo.
1962) (where defendant was not liable for death of four and
one-half year old boy who drowned in a pool of water on
land being developed by defendant because old attractive
nuisance doctrine did not apply to “ponds, water-filled
quarries, and pools of water in creeks and natural water
courses”).

Exceptions exist, however, to the fixed rules that
trespassing children may be expected, as a matter of law,
to appreciate certain dangers and avoid them as discussed
in comment j. One is where a distracting element prevents
the child from realizing inherent danger. RESTATEMENT
(SECOND) OF TORTS § 339 cmt. j (1965). See Crawford,
548 S.W.2d at 222 (where landowner was liable for drowning
of six year old boy in an uncovered settlement tank because
distracting factors existed to prevent child’s realization
of danger in that effluent in tank was dark and murky
hiding true depth of effluent, a ball was floating on top
of the effluent, and a wooden and metal bridge stretched
across the tank). Another exception is where the child is
too young to appreciate the danger:

Where, however, the possessor knows that children too
young to appreciate such dangers are likely to trespass on
his land, he may still be subject to liability to such
children under the rule stated [in section 339].

RESTATEMENT (SECOND) OF TORTS § 339 cmt. j (1965).
The Restatement sets out two illustrations under comment j.
In the first, the landowner is not liable for the drowning
of a trespassing ten-year-old boy in a small artificial
pond on his land. RESTATEMENT (SECOND) OF TORTS § 339
cmt. j illustration no. 6 (1965). But the landowner is
liable for the drowning a three year old child in a small
artificial pond full of gold fish on his land, which
adjoins a nursery providing care for two to five-year-olds
who are, as the landowner knows, in the habit of
trespassing on his land and going near the pond. RESTATEMENT
(SECOND) OF TORTS § 339 cmt. j illustration no. 7
(1965). This exception is also discussed in Prosser and
Keeton in The Law of Torts (5th ed. 1984):

These fixed rules have been found deficient in certain
situations. One is where the possessor of land knows or
has reason to know that children who are likely to
trespass are so extremely young that they cannot
appreciate the danger. When an infant of three or four is
known to be in the vicinity of fire or water, or other
dangerous conditions, it is “pure fantasy, straight from
outer space” to say that he will be fully able to protect
himself against them.

W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF
TORTS 407-08 (5th ed. 1984).

In this case, Defendants’ pond did not constitute an open
and obvious danger to young Michael. Only two years old,
Michael could not be expected to fully understand and
appreciate the danger of the aeration pond on Defendants’
property, as could perhaps another child old enough to be
permitted to roam at large. And while some evidence was
offered that the pond contained frogs, which might be a
distracting influence to a toddler, the analysis does not
stop there. To be liable for Michael’s death, Defendants
must have known or had reason to know that children too
young to appreciate the danger of the pond were likely to
trespass. Such a showing was not made in this case. While
evidence was offered that Defendants’ property was in a
residential area, no toddlers lived in the area. The
youngest child in the neighborhood was nine years old. And
the only children living in the immediate area of
Defendants’ property at the time of the accident were
teenagers. While Defendants’ neighbor testified that her
five-year-old nephew would visit occasionally and Michael
himself had been to her house before with his grandmother,
absolutely no evidence was offered that they or any other
young child had trespassed onto Defendants’ property or gone
near the pond in the past. Without evidence that Defendants
had reason to know young children were likely to trespass
on their land, Plaintiffs failed to make a submissible case
against Defendants.[fn4] Compare Crawford, 548 S.W.2d at
220-222 (where landowner was liable for drowning of six
year old boy in an uncovered settlement tank because
abundant evidence showed that children played in immediate
area of tank and a cement block stairway provided easy
access if not an open invitation to enter tank area). The
judgment of the trial court granting a new trial is,
therefore, reversed, and the case is remanded to the trial
court for entry of judgment in favor of Defendants.

Ellis, P.J. and Holliger, J. concur.

[fn1] According to the testimony of the treating physician,
death from near drowning differs from death from drowning
only to the extent that the person survives for more than
twenty-four hours before succumbing.

[fn2] All statutory references are to RSMo 2000 unless
otherwise indicated.

[fn3] See Anderson v. Cahill, 485 S.W.2d 76, 77 (Mo. 1972);
Salanski v. Enright, 452 S.W.2d 143, 144 (Mo. 1970);
Arbogast v. Terminal R.R. Ass’n. of St. Louis, 452 S.W.2d
81, 84-85 (Mo. 1970).

[fn4] At trial, Plaintiffs introduced a Clay County
ordinance requiring fencing around sewage ponds to preclude
livestock and discourage trespassing. Plaintiffs never
argued and did not propose a negligent per se instruction
for Defendants’ violating the ordinance but only argued
that the violation tended to prove Defendants’ violation of
a duty in their negligence action. In their brief on
appeal, Plaintiffs again mention that Defendants violated
the ordinance in arguing that Defendants were negligent in
Michael’s death. Nevertheless, Plaintiffs failed to offer
substantial evidence to prove the essential element of
Defendants’ knowledge or reason to know children too young
to appreciate the danger of the pond were likely to
trespass as discussed above.