State ex rel. A. Carlton Young, and Arline E. Young, Relators, v. The Honorable Gael D. Wood, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: State ex rel. A. Carlton Young, and Arline E. Young, Relators, v. The Honorable Gael D. Wood, Respondent. Case Number: SC88840 Handdown Date: 06/10/2008 Appeal From: Original Proceeding in Mandamus Counsel for Appellant: David P. Bub, Jennine D. Adamek Moore and Kenneth R. Goleaner Counsel for Respondent: P. Dennis Barks, Sam P. Rynearson, David A. Fletz and Michael P. Gunn Opinion Summary: Overview: This wrongful death case arises from the accidental shooting death of one of two men who were given permission to hunt on a couple's property. In a unanimous decision written by Judge William Ray Price Jr., the Supreme Court of Missouri makes peremptory (permanent) its writ of mandamus directing the trial court to dismiss the suit by the victim's heirs because the plain language of the state's recreational use act gives the landowners immunity from the suit. Facts: Carlton and Arlene Young separately gave permission to James Shaw and John Hartnagel to enter their farm to hunt wild turkeys. Neither man knew there was another hunter on the farm, and, while hunting, Hartnagel fired his weapon in the direction of the sound of what he thought was a wild turkey. Instead he accidentally struck Shaw, killing him. Shaw's heirs filed a wrongful death suit against Hartnagel and the Youngs, alleging in part that the Youngs were negligent in failing to warn Shaw that other hunters were or might be nearby. The trial court overruled the Youngs' motion to dismiss. They now ask this Court to issue a writ of mandamus directing the trial court to dismiss the claims against them.

WRIT MADE PEREMPTORY. Court en banc holds: The state's recreational use act provides the Youngs immunity from the wrongful death suit. Under section 537.346, RSMo 2000, a landowner owes no duty of care to a person who enters the land, free of charge, either to keep the land safe for recreational use or to give any warning with respect to any condition on the land. Nothing in the act's plain language requires landowners to open their property to the entire general public, and this Court will not add language to a statute that is clear and unambiguous. The use of the term "public" in dicta in Lonergan v. May, 53 S.W.3d 122 (Mo. App. 2001), merely reflects the fact that the statute is designed to encourage landowners with property suitable for certain recreational activities to allow members of the public to participate in those activities. Further, section 537.347 explicitly provides that a landowner who permits a person onto his land for recreational use, without charge, does not assume responsibility for any injuries caused by an act or omission of that person. Here, the Youngs allowed Shaw and Hartnagel on their land, free of charge, to engage in the recreational use of hunting. As a result, they owed Shaw no duty to keep the property safe or to warn him of the presence of other hunters on the property. They also do not assume responsibility for any injury to another person caused by Hartnagel's acts or omissions. Accordingly, this Court need not address the heirs' argument that section 537.346 only limits the duty of care as to a natural or artificial condition, structure or personal property. Citation: Opinion Author: William Ray Price, Jr., Judge Opinion Vote: WRIT MADE PEREMPTORY. All concur. Opinion: I. Introduction Relators seek a writ of mandamus ordering dismissal of a wrongful death claim brought by the decedents of a man killed while hunting on Relators' property. Because Relators are entitled to immunity under Missouri's

Recreational Use Act ("RUA"),(FN1) the alternative writ of mandamus is made peremptory. II. Facts Relators, the Youngs, gave permission to James Shaw and John Hartnagel to enter their farm for the purpose of hunting wild turkeys. Neither man knew the other was on the farm. While hunting, Hartnagel thought he heard a wild turkey and discharged his weapon in the direction of the sound. Unfortunately, the source of the noise was Shaw, who was struck by the shots fired and died from the injuries. Plaintiffs sued Relators as well as Hartnagel for wrongful death, alleging that Relators were negligent in failing to warn Shaw that other hunters were or might be nearby. Relators filed a motion to dismiss for failure to state a claim, arguing immunity from suit under the RUA. The motion was denied. Relators ask this Court to issue a writ of mandamus directing Respondent to vacate denial of Relators' motion to dismiss, and to enter an order dismissing Plaintiffs' claim against Relators. III. Standard of Review A litigant seeking mandamus must "allege and prove that he has a clear, unequivocal, specific right to a thing claimed." Furlong Companies, Inc. v. City of Kansas City, 189 S.W.3d 157, 166 (Mo. banc 2006). A court will only issue the writ if the "ministerial duty sought to be coerced is definite, arising under conditions admitted or proved and imposed by law." Id. This Court reviews the circuit court's actions for an abuse of discretion, including failure to follow applicable statutes. State ex rel. City of Jennings v. Riley, 236 S.W.3d 630, 631 (Mo. banc 2007). "A defendant who is clearly entitled to immunity should not be required to proceed through trial and appeal in order to enforce that protection." State ex rel. Mo. Highway & Transp. Comm'n v. Dierker, 961 S.W.2d 58, 60 (Mo. banc 1998). IV. Analysis A. The primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute. State ex rel. Burns v. Whittington, 219 S.W.3d 224, 225 (Mo. banc 2007). When the statute's language is unambiguous, a court must give effect to the legislature's chosen language. Kerperien v. Lumberman's Mut. Cas. Co., 100 S.W.3d 778, 781 (Mo. banc 2003). "A court may not add words by implication to a statute that is clear and

unambiguous." Asbury v. Lombardi, 846 S.W.2d 196, 202 n.9 (Mo. banc 1993). B. The key portion of the RUA, section 537.346, states: 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. 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." Foster v. St. Louis County, 239 S.W.3d 599, 600 (Mo. banc 2007) (internal citations omitted). To invoke the RUA, the general requirements are "(1) an owner of the land; (2) entry upon the land; (3) entry upon the land without charge; and (4) entry for recreational use." Lonergan v. May, 53 S.W.3d 122, 128 (Mo. App. 2001). If these requirements are met, then the owner "owes no duty to the entrants to keep the 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. The owner also does not "[a]ssume responsibility for any damage or injury to any other person or property caused by an act or omission of such person." Section 537.347. The Youngs meet the RUA's requirements because they allowed Shaw and Hartnagel on their land, free of charge, to engage in the recreational use of hunting.(FN2) The RUA therefore applies and the Youngs owed no duty to Shaw to keep their land safe or to give any general or specific warnings about the presence of other hunters on the property. C. The Shaws raise two arguments against application of the RUA, neither of which is persuasive. 1. First, the Shaws argue that the RUA requires land owners to open their property to the entire general public. This

requirement is mentioned nowhere in the plain language of the RUA. The Shaws appear to draw this additional requirement from dicta in the Lonergan opinion stating that RUA's are designed to "encourage landowners to open their lands to the public for recreational use by restricting the landowners liability." Lonergan, 53 S.W.3d. at 127 (emphasis added). The use of the term "public" merely reflects the fact that the statute is designed to encourage landowners with property suitable for certain recreational activities to allow members of the public to participate in those activities. Nowhere does the RUA require that land be opened to the entire general public, and this Court will not add language to a statute that is clear and unambiguous. Lombardi, 846 S.W.2d at 202 n.9. This reading of Missouri's RUA mirrors that of the Eighth Circuit. Wilson v. United States, 989 F.2d 953, 957 (8th Cir. 1993). 2. The Shaws also argue that the RUA does not apply because section 537.346 only limits the duty of care with regard to a "natural or artificial condition, structure, or personal property." The Shaws believe that the presence of another hunter, Mr. Hartnagel, does not fall under any of these categories. We need not address this argument because section 537.347 of the RUA explicitly provides that a land owner who invites or permits a person onto his land for recreational use, without charge, does not "[a]ssume responsibility for any damage or injury to any other person or property caused by an act or omission of such person." Id. Because Young allowed Hartnagel on his land to engage in the recreational use of hunting, free of charge, he does not assume responsibility for any damage or injury to any other person caused by an act or omission of Hartnagel. V. Conclusion The RUA provides Relators immunity from the wrongful death suit at issue. Accordingly, the alternative writ of mandamus is made peremptory. All Concur. Footnotes:

FN1. Sections 537.345 to 537.348. All statutory references are to RSMo 2000, unless otherwise noted. FN2. Section 537.345 defines "hunting" as a recreational use. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.