T.J. Whitmirе (Whitmire), by and through his guardian and next friend, Mar-cedes Miller (Miller), appellants, appeal the trial court’s grant of Respondents’, Unimin Corporation (Unimin) and River Hills Development Company (River Hills), motions for summary judgment.
On appeal, appellants contend that the trial court erred in granting summary judgment in that 1) there is a genuine issue of material fact as to whether Unimin fulfilled its duty to adequately seal the mine as required by § 293.530(3) RSMo 1986 (all further references shall be to RSMo 1986 unless otherwise noted) and 2) there is a genuine issue of material fact as to whether River Hills knew or had reason to know that: a) a hazardous condition existed on its property; b) children were exposed to it; c) T.J. Whitmire did not know of and appreciate the danger; and d) it failed to prevent Whitmire from being exposed to such harm. We affirm in part and reverse in part.
Initially, we find that in light of the record presented an overview of summary judgment procedure is necessary. A motion for summary judgment may be made with or without supporting affidavits. Rule 74.04(a), (b). The motion shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 74.04(c). When a motion for summary judgment is made, an adverse party “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise рrovided in this Rule 74.04, shall set forth specific facts showing that there is a genuine issue for trial.” Rule 74.04(e). When relying upon deposition testimony, interrogatory answers, or other documents, it is appropriate for both the moving and opposing parties to specifically direct the court to particular parts of the deposition transcript, interrogatory answer, admission or exhibit upon which the party is relying.
Landmark North County Bank & Trust Company v. National Cable Training Centers, Inc.,
Here, the record on appeal consists of a transcript of the hearing and a legal file with six supplements (appellants filed three, Unimin filed two and River Hills
With respect to other portions of the record on appeal, we note that appellants failed to specifically direct the trial court to the portions of the depositions relied on. We have expended an abnormal amount of time trying to piece together the record on which the trial court reached its decision.
Viewing the record in a light most favorable to Whitmire and Miller the facts are as follows. On June 5, 1989, Whitmire, age fourteen, fell into a vertical ventilation shaft at an abandoned sandmine near Crystal City, Missouri. Unimin operated the mine from October 31, 1972 to its cessation of operations on January 21, 1983. Following cessation of mining operations Unimin took steps to seal the openings to the mine and prevent trespassing on the property. Unimin sold the property to River Hills on May 30, 1989, executing a quit-claim deed and special warranty deed to memorialize the sale. On June 4, 1989, Whitmire and his cousin, Ernie Hastings (Hastings), age fifteen, went to the mine site to explore. They found an entrance into the mine and followed that path which led to a steep dropoff and thus did not travel further on that route. On June 5, 1989, Whitmire and Hastings decided to go to the mine area again to find a better way to get into the mine, and discovered a hole, later determined to be a vertical mine shaft, which was surrounded by a chain link fence. A “Danger” sign was attached to one side of the fence surrounding the opening to the vertical mine shaft. From outside the fence, all that could be seen was a hole or depression in the ground of unknown depth. Whitmire crawled under the fence to take a closer look at the hole. The ground surrounding the hole was loose and gave way causing him to fall over 60 feet into the mine shaft sustaining serious injuries.
Appellants filed an amended six count petition essentially alleging that: River Hills negligently failed to adequately seal or fence the mine openings as required by § 293.530 and 30 U.S.C. § 811 et seq. and that Whitmire, because of his youth, did not appreciate the risk of harm (Count I); Unimin, Martin-Marietta Corporation, and PPG Industries, Inc. negligently failed to adequately seal or fence the mine openings as required by § 293.530 and 30 U.S.C. § 811 et seq. and failed to adequately fence, barricade, seal off, or warn of the dangerous conditions upon its property (Counts II, III, and IV respectively); Miller has been damaged as a direct and proximate result of the negligence of Defendants and resulting injuries to her son
Appellants, in their first point on appeal, contend that the trial court erred in granting summary judgment because there is a genuine issue of material fact, i.e. did Uni-min, even though it sold the property to River Hills six days prior to the accident, fulfill its duty to adequately seal the mine as required by § 293.530(3). Section 293.-530(3) provides:
293.530. Notice of opening and abandonment of mines — abandoned mines to be sealed
1. ...
2. ...
3. Upon abandonment of any underground mine, the operator of that minе shall seal or fence the surface openings of the mine in such a manner as to afford permanent protection to all persons and animals.
The thrust of appellants’ action is that although Unimin did not own the property at the time of the accident, it still had an affirmative duty to adequately seal or fence the surface opening of the mine so as to afford permanent protection to all persons and animals upon abandonment of thе mine as proscribed by § 293.530.
Unimin argues that it is not bound by the statute because it did not own the mine at the time of the accident and § 293.530 does not create an ongoing duty of care. Further, Unimin argues that assuming it did come under the statutory guidelines, it complied with the statute and relies on
Parrish v. Hainlen,
'35 C.S.A. Id., which provides:
The owner operating or controlling coal lands on which there are surface caves or shafts of sufficient depth to endanger the lives of persons, cattle, horses or other stock, shall fence or fill said caves or shafts in such manner as to afford permanent protection to all persons and stock endangered thereby.
The court in Parrish interpreting “protection” stated that “where employed under circumstances such as are considered in this casе, the word connotes not so much the meaning of fortification, as it does noti-fication_” (emphasis added) Id. at 119. The court went on to state that,
“... ‘permanent protection’, as used in the statute under consideration, and as applied to the facts of this case, means the erection about the mouth of an open shaft on coal lands, of a substantial structure or barricade, reasonably durable and adequately resistant to warn and guard away from danger persons who might innocently and without purpose wander upon the premises.” (emphasis added).
Id. Unimin argues, relying on Parrish’s interpretation of the word “protection”, that it complied with its statutory duty. In support of its argument, Unimin directed the trial court to: 1) a report by Earl Wilson, a mine inspector for the United States Mine Safety and Health Administration, describing the baricades and fences surrounding the abandoned mine which states, “I (sic) appears that all reasonable precautions were taken by [Unimin] to discourage trespassing;” and 2) a state mine inspector’s report dаted August 17, 22, 1988 stating, “Inspection of old mine opening, which is sealed off and the rest is fenced to keep people out of old mine area.”
Appellants directed the trial court’s attention to Whitmire’s and Hasting’s depositions wherein they testified that there was a gap between the ground and the fence surrounding the air shaft and they went underneath the fence. Appellants also directed the trial court’s attention to portions
Here, the primary focus is the meaning of the words “permanent protection” as used in § 293.530. “When examining for the meaning of statutory enactments, our primary role is to ascertain the intent of the legislature from the language used and give effect to that intent if possible.”
Trailiner Corporation v. Director of Revenue,
Our analysis of Parrish indicates that the Colorado Supreme Court clearly limited its interpretation of its statute to the specific circumstances of that case. There the injured parties were adults, grew up in the community, were aware that the coal contained a gas of a dangerous nature, and purposely mounted a concrete foundation to enter a semi darkened area of an air lock.
Here, the language of § 293.530(3) is clear and unambiguous. It is true that generally, under the common law, a vendor of land is not liable for physical harm caused to others while upon the land after the vendee has taken possession by any dangerous condition which existed at the time vendee took possession. Restatement 2nd of Torts § 352. Here, however, the statute directs itself to the duty of the operator at the time of abandonment. The language of the statute does not distinguish between the present operator and the previous operator of the mine nor does it indicate that the duty established is ongoing once the property has been sold. Uni-min was the owner and operator of the mine for approximately eleven years. It abandoned use of the mine on January 21, 1983 and sold the mine to River Hills on May 30, 1989. Unimin, upon abandonment of the mine, was required to seal or fence the surface openings of the mine so as to afford permanent protection to all persons and animals. Warning signs were posted, barricades and fences were set up, and a fence was erected around the surface opening where Whitmire fell. Clearly the statute, giving the words their plain and ordinary meaning, means more than just notification under the circumstances of this case. There is a dispute as to the material fact of whether the fence surrounding the air shaft provided permanent protection in accordance with the statute. This is a material fact because the adequacy of the fencing is crucial in determining whether Uni-min complied with its statutory duty. Summary judgment was improperly granted with respect to Unimin.
In their second point, appellants contend that the trial court erred in granting summary judgment to River Hills because there is a genuine issue of material fact as to whether: 1) River Hills knew or had reason to know that a hazardous condition existed on its property and that children were exposed to it; 2) Whitmire knew of and appreciated the danger; and 3) River Hills failed to prevent Whitmire from being exposed to such harm. Appellants’ claim is based on the attractive nuisance doctrine.
River Hills argues that appellants may not recover under the theory of attractive nuisance because the condition of its property presented such an open and obvious danger and Whitmire was of sufficient age to appreciate such danger. River Hills directed the trial court to portions of Whit-mire’s deposition stating that 1) he passed warning signs, a fence gate, a steel barricade across a bridge, and a chain fence before reaching the air shaft where the injury occurred; 2) he passed a sign saying No Trespassing and that he understood that this sign applied to him and it meant “stay away”; and 3) he and his cousin had been to the mine area the day before the accident occurred and found a way into the
Q. After having been to that mine on the prior visit, specifically the day before, you knew that if you weren’t careful there were ways that you could injure yourself on the property; didn’t you?
A. I’m sure we knew.
Q. And it’s also true that you and Ernie knew from that first visit that because you could get hurt if you weren’t careful that was one of the reasons why the owners didn’t want you on that abandoned property?
A. Yes.
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Q. Tell us in your own words then what you and Ernie did when you discoverеd this area with the fence around it?
A. Well, we walked, we went over to it and we noticed that it went downward, but you couldn’t really see if it dropped off or not, and we went underneath the fence. It was a fairly wide gap underneath of it and we just went underneath of it and we were standing there.
Q. Okay. I’ll ask you some other questions in a minute, but when you were on the outside of the fence looking in were there any signs that were connected to the fence at all?
A. Yes.
Q. Do you recall how many signs there were?
A. There was a sign on the fence. I’m not sure how many there were. I’m not real sure what it said either.
Q. Although you can’t recall specifically the words on that sign do you recall it being something to the effect of a warning or keep out or something of that variety of sign?
A. Yes.
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Q. Now, you understood that the fence and the sign were there as a warning to you not to go inside of the area of that fence; right?
A. Yes, I’m sure we understood at the time.
Q. But in spite of the fence and the warning you and Ernie disregarded those things and decided to go in?
A. Yes.
Q. Right?
A. Yes.
Q. And you and Ernie both knew that you didn’t want to get too close to that hole because you could get hurt; right?
A. Right.
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Q. You understood that by going under this fence you were getting into an area that the owners of the property didn’t want you; right?
A. Yes.
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Q. And wouldn’t it be a true statement then that because of how the fence was situated with the hole there that you knew that the fence was to keep you away from that hole?
(Objection made; Reporter read back pending question)
A. Yes.
Additionally, River Hills directed the trial court’s attention to an affidavit of J. Price, an officer of River Hills, to which photographs of the numerous warning signs, barricades, and barriers are attached.
Since appellants have failed to submit affidavits or to direct us to any portion of the record disputing the facts set forth by River Hills they are deemed admitted.
Smithey v. Davis,
Section 339 Restatement of Torts (First), a modified attractive nuisance doctrine, was applied by our Supreme Court in
Arbogast v. Terminal Railroad Association of
§ 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 intermed-dling 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 exеrcise reasonable care to eliminate the danger or otherwise to protect the children.
Attractive nuisance liability exists only with respect to dangerous conditions or structures where the danger is not open and obvious to the injured party.
Pitts v. Fred Weber Contractor, Inc.,
We have found that certain situations have been exempted from the ambit of § 339. The rеasoning for this is set forth in Prosser, Law of Torts, 5th Edition, Ch. 10, § 59, pp. 406-407:
One very important factor is that of whether the trespassing child may reasonably be expected to comprehend the situation. Sometimes this is expressed by saying that the danger must be latent, meaning apparently nothing more than that the child can be expected not to perceive or appreciate the peril. The question here is not whether he does in fact understand, although that too has its imрortance; it is rather what the possessor may reasonably expect of him. Here the courts have displayed a tendency to set up certain more or less arbitrary categories of conditions which trespassing children, as a matter of law, can be expected to understand. This means that the possessor is free to rely upon the assumption that any child of sufficient age to be allowed at large by his parents, and so to be at all likely to trespass, will appreciate the danger and avoid it, or at least make his own intelligent and responsible choice. The danger to which such a fixed rule most often has been applied is that of drowning in water; but there are numerous cases showing a similar rigidity as to the perils of fire, falling from a height or into an excavation, moving vehicles, ordinary visible machinery in motion, the natural propensities of a horse, sliding or caving soil, and piles of lumber, crossties, and other building mаterial.
This rationale has been applied in such cases as
Finn v. Newsam,
Here, since the air shaft did not present an open and obvious danger we must determine if River Hills, by its motion for summary judgment, eliminated an element of appellants’ attractive nuisance claim. In determining whether a child “discovers the condition or realize[s] the risk involved” consideration must be given to the factors of age, intelligence, maturity, and capacity.
Lister v. Campbell,
Here, Whitmire was fourteen years of age. Appellants have failed to direct us to any portion of the record indicating that Whitmire was of lower intelligence or mental capacity than an average fourteen year old. Whitmire’s deposition testimony indicates that he was familiar with the area, was aware of the dangers associated with the mine openings, understood that he was trespassing, and understood that he cоuld get hurt.
In negligence cases, summary judgment is generally not as feasible as in other types of cases.
Hill v. Air Shields,
Judgment affirmed in part and reversed in part.