State of Missouri, ex rel. Attorney General Eric S. Schmitt v. Gary Henson ( 2020 )

In the Missouri Court of Appeals
Eastern District
SOUTHERN DIVISION
STATE OF MISSOURI, ex rel. ) No. ED107970
ATTORNEY GENERAL ERIC S. SCHMITT, )
)
Respondent, )
) Appeal from the Circuit Court of
) Madison County
vs. ) Cause No. 18MD-CC00147
)
GARY HENSON, ET AL., ) Honorable Wendy Wexler Horn
)
Appellants. ) Filed: April 14, 2020
OPINION
Gary Henson (“Gary”), Rebecca Henson (“Rebecca”)1 (collectively, “the Hensons”), and
Offsets Recreation, LLC (“Offsets Recreation”) (collectively, “Appellants”) appeal the trial
court’s judgment permanently enjoining Appellants from operating the commercial swimming
and diving facility on the Hensons’ property (“the Offsets”) and/or charging admission to such
facility until Appellants meet certain conditions to make operation of the Offsets safer for guests.
The State filed its petition requesting a permanent injunction and its motion for preliminary
injunction against Appellants on the grounds that Appellants’ operation of the Offsets was a
public nuisance, and after a bench trial, the trial court concluded that Appellants’ operation of the
1
Because Gary and Rebecca Henson have the same surname, we refer to them by their first names to avoid
confusion, but intend no familiarity or disrespect.
1
Offsets constituted a public nuisance because it interfered with the “common community right of
public safety.”
Appellants raise four points on appeal. In their first point, Appellants argue that the trial
court erred in concluding that Appellants’ operation of the Offsets was a public nuisance because
“Missouri does not recognize a cause of action for a public nuisance where the alleged activities
are solely on private property and where the public has no right to enter and which enterprise
does not interfer[e] with a right common to the general public.” In their second and third points,
Appellants assert that the trial court erred by enjoining Rebecca (Point II) and Gary (Point III)
because there was no evidence presented before the trial court demonstrating that either owns or
operates the Offsets. And in their fourth point, Appellants contend that the trial court erred in
concluding that their operation of the Offsets constituted a public nuisance because “the evidence
does not support a public nuisance because nine deaths over thirty-two years is not a public
nuisance.”
Finding that the trial court did not err in any of the ways asserted by Appellants, we
affirm the judgment of the trial court.
I. Factual and Procedural Background
On July 30, 2018, the State filed its petition in the Circuit Court of Madison County. The
State asserted that Appellants’ operation of the Offsets was a public nuisance, as nine people had
died at the Offsets since the commercial swimming and diving operation began in the mid 1980’s
on what is now the Hensons’ property. The State requested that the trial court enjoin Appellants
from operating the Offsets until the complained of dangerous conditions were remediated. A
bench trial was held on the matter on May 15, 2019.
2
At trial, the State offered several exhibits detailing Appellants’ operation of the Offsets, 2
the Hensons’ ownership of the property on which the Offsets was operated, and the deaths that
occurred at the Offsets since Appellants began operating it. Those exhibits included a deposition
given by Gary before trial, photographs of the Hensons’ property and signs on/leading to the
property, coroner’s reports on seven of the persons who died at the Offsets,3 the articles of
incorporation of Offsets Recreation, and Offsets Recreation’s lease of the Hensons’ property.
Additionally, the State presented testimony by Tyler Wood (“Wood”) (an investigator with the
Missouri Attorney General’s Office), Collin Follis (“Follis”) (the current Madison County
coroner), Sheriff Katy McCutcheon (“Sheriff McCutcheon”) (the current sheriff of Madison
County), Michael Oostman (“Oostman”) (an expert witness on aquatic safety risk management),
and Melissa Duffell (mother of one of the persons who drowned at the Offsets). In response,
Appellants presented exhibits further detailing operation of the Offsets, including more
photographs of the Hensons’ property and the waiver drafted by Appellants that guests of the
Offsets had to sign before entering the Hensons’ property. Appellants also presented testimony
by Sharon Marshall (the Hensons’ daughter), Richard Menendez (a frequent guest of the
Offsets), and Gary.
In sum, the evidence presented showed the following. The Hensons own property in
Madison County, Missouri at which Gary/Offsets Recreation manages the Offsets commercial
swimming and diving operation; that property contains a quarry (previously a lead mine) that is
now flooded, resulting in an approximately five-acre lake that is surrounded by bluffs of varying
2
We use “Appellants’ operation of the Offsets” or similar phrasing to reference Appellants’ combined operation of
the Offsets and allowing the Offsets to be operated on the Hensons’ property; we recognize that there was no
evidence admitted at trial that Rebecca “owned or operated” the Offsets commercial swimming and diving
enterprise.
3
The coroner’s reports for two people who died at the Offsets in 1989 could not be located.
3
heights—the highest of which are at least 40 feet above the water of the lake. The Hensons
purchased the property from Gary’s father in the mid 1980’s, but, since the early 1980’s, Gary
has managed the Offsets as a commercial enterprise that charges members of the public for
admission to the property so that they may swim and dive in the quarry, hike, and camp
overnight. Gary ran the Offsets as a sole proprietor until 2009, when he organized Offsets
Recreation, of which he is the sole member and manager. Offsets Recreation has leased the
Hensons’ property since 2009, with the exception of the 2015 and 2016 swimming seasons,
when the Hensons’ son operated a similar commercial swimming and diving enterprise at the
property. Gary/Offsets Recreation invites members of the public to the Offsets using roadside
and social media advertisements, which result in upwards of hundreds of people visiting the
Offsets on a given day.
Since 1989, nine people have died at the Offsets: four died while swimming in the
quarry, while the other five died from injuries sustained from jumping or falling into the quarry
from the bluffs above. Upon entering the Offsets, guests must sign a waiver notifying them of
general dangers on the property and that they swim and dive at their own risk. Additionally, an
employee of Gary/Offsets Recreation verbally warns guests not to jump off the high bluffs into
the quarry, and there are signs at some locations on the Hensons’ property warning guests not to
“flip” off the high points of the bluffs, that there is no lifeguard on duty, and that guests swim at
their own risk. Appellants do not station lifeguard-trained or CPR-trained staff that monitor the
water at the Offsets, allow guests to bring and consume substantial amounts of alcohol on the
property, do not have rescue or medical equipment readily available in case of injury (other than
a flotation ring), minimally supervise guests who are swimming or diving, do not require guests
to wear life vests when jumping from the bluffs or during any other activity at the Offsets, allow
4
guests to jump from any points on the bluffs/do not instruct from where guests should or should
not jump, and have warning signs posted only at certain points on the property, none of which
warn of the dangers of swimming, falling, jumping, flipping, or diving in the quarry.
Oostman, an expert witness on aquatic safety risk management, testified specifically
about the dangers present at the Offsets and Appellants’ failure to adequately warn against those
dangerous conditions or reasonably act to prevent or prepare for injuries caused by said dangers.
Oostman visited the Offsets and inspected it during February of 20194 after being contacted by
the Missouri Attorney General’s Office. During his visit, Oostman took several photographs
(which were entered into evidence) of the conditions and signs present at the Offsets, and opined
during his testimony why he thought the measures taken by Appellants were insufficient to warn
guests of the dangerous conditions. In particular, Oostman opined that the Offset’s warning signs
failed to sufficiently warn of the consequences (i.e., injury or death) of jumping, swimming, and
diving in the quarry, were not in proximate enough locations to the dangerous conditions to
effectively warn guests, and did not adequately inform guests how to safely engage in jumping
off the high bluffs. Oostman further opined that, based on Gary’s deposition and other evidence,
the Offsets was inadequately staffed to enforce the Offsets’s rules or ensure guests were acting
safely, failed to place any lifeguard-trained employees waterside, did not have an emergency
response/action plan other than calling 911, and failed to have proper safety/medical equipment
such as backboards, rescue tubes, or ventilation equipment. Oostman also opined that allowing
4
Oostman’s visit occurred when it was not swimming/diving season, and the Offsets therefore had no staff present
around the quarry during that time. However, Wood, who inspected the Offsets in July of 2018 (during
swimming/diving season), noted during his testimony (which preceded Oostman’s) that he saw no staff members
monitoring the water, saw no rescue or medical equipment near the water except for a flotation ring, and saw only
one employee briefly after entering the property during his visit.
5
guests to consume alcohol while at the Offsets further contributed to a greater risk of injury or
death in that intoxication affects the judgment of guests swimming or diving in the quarry.
On May 23, 2019, the trial court entered its judgment concluding that the Offsets was a
public nuisance and permanently enjoining Appellants from operating the Offsets as a
commercial swimming and diving facility and/or charging admission to the Offsets until certain
conditions were met. In its judgment, the trial court made detailed findings of fact regarding
Appellants’ ownership and operation of the Offsets, the deaths that have occurred at the Offsets
since 1989, the dangerous conditions present at the Offsets, and the measures that Appellants did
or did not take to prevent and prepare for injuries caused by those dangerous conditions. The trial
court specifically referenced the testimony of Oostman, and found him to be a qualified expert
and that his opinions were well-founded and based on his extensive experience and observations
of the evidence. In particular, the court found (in accordance with Oostman’s testimony) that:
“the Offsets contains many dangers, including the harsh impact of the water on the body when
jumping from high bluffs, the loose terrain, and the lack of institutional control over the guests
due to the complete freedom of the guests to jump into the water from anywhere around the
lake”; “the warnings given at the Offsets are deficient in several ways”; Appellants “fail to
ameliorate these significant risks to life by failing to provide staff supervision of jumping, …
provide lifeguards, … have a rescue response plan in place, and … have proper safety equipment
such as backboards, rescue tubes, and ventilation equipment.”
The trial court further found that Appellants fail to adequately warn guests of the dangers
associated with swimming and jumping from the high bluffs, had no personnel stationed at the
Offsets who were trained or certified in lifeguarding, water rescue, CPR, or first aid, and had no
personnel who are solely dedicated to patrolling the facility to insure that guests follow rules,
6
have the physical capacity needed to swim and dive safely, and are not creating unnecessary
risks to their own safety or that of other guests. Additionally, the court found that Appellants had
no formal rescue or response plan in place for water emergencies other than to call 911. The
court noted that “there is insufficient time [for first responders] to respond to a struggling
swimmer in order to prevent a drowning, serious physical injury, or death.” The court also found
that Appellants permit guests to jump from anywhere on the bluffs that surround the lake, which
make it “more difficult to monitor behavior and look for signs of distress” and “increases the
odds that a guest may inadvertently collide with another guest when jumping,” and do not
instruct guests on how to safely jump from the cliffs other than advising guests not to perform
front flips or back flips from the highest bluffs. The court further noted that Appellants “allow
guests to bring limitless amounts of alcohol into the property” and that “[e]xcessive alcohol
consumption has contributed to several deaths on the property.” Lastly, the trial court found that
“[d]espite the nine deaths on the property by patrons using the facility as intended, [Appellants]
have made at most minor attempts to reduce the risks of serious physical injury or death.”
The trial court concluded that “[Appellants’] use of their property as described above
constitutes a public nuisance, in that they interfere with common community right of public
safety,” and “[t]he deaths caused and the risks borne by the guests of the Offsets is against the
public order of the state and endangers a considerable number of persons.” Further citing the
grave risk to the public that the Offsets posed, the court granted the State’s request for a
permanent injunction against Appellants because there was no adequate remedy at law for those
injured at the Offsets and because the risk of serious physical injury or death constitutes
irreparable harm in that monetary damages cannot adequately compensate for physical injury or
loss of life. As such, the court permanently enjoined Appellants, their officers, agents,
7
employees, sales persons, contractors, representatives, assigns, successors in interests, and any
other individuals acting on their behalf or at their discretion and prohibited them from operating
the Offsets as a commercial swimming and diving facility and/or charging admission to the
Offsets until certain conditions were met.
Those conditions included that: Appellants establish an emergency response plan
prepared by a water safety expert and conduct trainings with all staff prior to the start of each
operating season and at least monthly during the operating season; Appellants permit only
jumping feet first into the quarry from designated jumping areas that are staffed by a certified
lifeguard and have warning signs advising guests that previous patrons have died jumping off the
cliffs and showing a pictograph and instructions on safe jumping technique; that lifeguards
stationed at the designated entry points direct guests to the warning signage, instruct guests on
how to jump from the designated point to minimize the risks of serious physical injury or death,
and permit guests to enter the water only after ensuring that the entry point in the water is clear
of other swimmers; that an additional certified lifeguard be stationed in the water in a boat and
be equipped with CPR hip packs and rescue tubes that have lanyards equal to the depth of the
water in the swimming zones; a trauma bag containing a working Automated External
Defibrillator and emergency oxygen system be maintained on the property in a location where it
can be promptly delivered to the scene of any emergency event in or near the water; at least one
backboard with head immobilization device be kept proximate to the water for use in emergency
events in or near the water; throwable flotation devices be available at all designated entry points
and at least every 100 feet around the perimeter of the water; and Appellants require guests
8
(other than certified scuba divers equipped with scuba diving equipment) to wear appropriately-
fitting U.S. Coast Guard-approved life jackets when entering the water.5
This appeal follows.
II. Standard of Review
On review of a bench-tried case, we will affirm the trial court’s judgment unless it is
unsupported by substantial evidence, is against the weight of the evidence, or erroneously
declares or applies the law. City of St. Louis v. Varahi, Inc., 39 S.W.3d 531, 535 (Mo. App. E.D.
2001); Ivie v. Smith, 439 S.W.3d 189, 198–99 (Mo. banc 2014); Murphy v. Carron, 536 S.W.2d
30, 32 (Mo. banc 1976). We view the evidence and inferences therefrom in the light most
favorable to the trial court’s judgment and disregard any evidence and inferences to the contrary.
Parkway Constr. Servs., Inc. v. Blackline LLC, 573 S.W.3d 652, 664 (Mo. App. E.D. 2019);
Jamestowne Homeowners Ass’n Trs. v. Jackson, 417 S.W.3d 348, 354 (Mo. App. E.D. 2013).
III. Discussion
Appellants assert four points on appeal. As their first and fourth points on appeal are
related and would be otherwise dispositive of their second and third points, we address
Appellants’ first and fourth points together before simultaneously addressing their second and
third points, which assert the same argument respectively for Gary and Rebecca.
Points I and IV
In Appellants’ first point on appeal, they argue that the trial court erred in concluding that
Appellants’ commercial operation of the Offsets was a public nuisance because “Missouri does
not recognize a cause of action for a public nuisance where the alleged activities are solely on
5
Appellants do not challenge on appeal the conditions imposed by the trial court in conjunction with its permanent
injunction; we therefore do not evaluate whether the conditions ordered by the trial court are necessary to ameliorate
the dangerous conditions found by the court.
9
private property and where the public has no right to enter and which enterprise does not
interfer[e] with a right common to the general public.” Relatedly, in their fourth point on appeal,
Appellants assert that “the trial court erred in its judgment because the evidence does not support
a public nuisance because nine deaths over thirty-two years is not a public nuisance.”
A public nuisance is an offense against the public order and economy of the
state and violates the public’s right to life, health, and the use of property, while,
“at the same time annoys, injures, endangers, renders insecure, interferes with, or
obstructs the rights or property of the whole community, or neighborhood, or of
any considerable number of persons.”
City of Greenwood v. Martin Marietta Materials, Inc., 299 S.W.3d 606, 616 (Mo. App. W.D.
2009) (quoting Varahi, Inc., 39 S.W.3d at 535). Missouri courts have also described public
nuisance as an “unreasonable interference with a right common to the general public.” Varahi,
Inc., 39 S.W.3d at 536; see also City of Kansas City v. New York-Kansas Bldg. Assocs., L.P., 96
S.W.3d 846, 857 (Mo. App. W.D. 2002) (“In Missouri, it is well established that a public
nuisance is any unreasonable interference with rights common to the public such as the public
health, safety, peace, morals or convenience.”); Martin Marietta Materials, Inc., 299 S.W.3d at
616. Additionally, “[a]nother factor in defining a nuisance is that consideration should be given
to places where the public have the legal right to go or congregate, or where they are likely to
come within the sphere of its influence.” Varahi, Inc., 39 S.W.3d at 535 (quoting State by Major
ex rel. Hopkins v. Excelsior Powder Mfg. Co., 169 S.W. 267, 273 (Mo. 1914) and State ex rel.
Attorney General v. Canty, 105 S.W. 1078, 1080–81 (Mo. 1907)); see also New York-Kansas
Bldg. Assocs., L.P., 96 S.W.3d at 857 (“In determining whether a public nuisance exists, the
court must consider whether the alleged nuisance is located in a public place, a place where the
public is likely to congregate, a place where the public has a right to go, or a place where the
public is likely to come into contact with the nuisance.”).
10
In this case, the trial court concluded that Appellants’ operation of the Offsets constituted
a public nuisance because the way in which Appellants operate the Offsets “interfere[s] with
common community right of public safety.” The court made detailed factual findings on the
several deaths that occurred at the Offsets since 1989 and Appellants’ unreasonable failure to
warn invited members of the public of inherently dangerous conditions present on the Hensons’
property and to adequately attempt to prevent or prepare for injury caused by those dangerous
conditions. Thereafter, the court specifically concluded that “[t]he deaths caused and risks borne
by the guests of the Offsets is against the public order of the state and endangers a considerable
number of persons.” We agree with the trial court’s conclusions, and find that the trial court did
not erroneously declare or apply the law.
Contrary to Appellants’ assertion that “Missouri does not recognize a cause of action for
a public nuisance where the alleged activities are solely on private property and where the public
has no right to enter,” abundant Missouri precedent makes clear that a public nuisance may be
found where said nuisance is located at “a place where the public is likely to congregate, a place
where the public has a right to go, or a place where the public is likely to come into contact with
the nuisance.” New York-Kansas Bldg. Assocs., L.P., 96 S.W.3d at 857; Martin Marietta
Materials, Inc., 299 S.W.3d at 618–19; see also Varahi, Inc., 39 S.W.3d at 535 (stating that a
public nuisance may be found “where the public have the legal right to go or congregate, or
where they are likely to come within the sphere of its influence”) (emphasis added) (quoting State
by Major ex rel. Hopkins, 169 S.W. at 273). Appellants’ attempt to confine Missouri public
nuisance law to those occurring on or affecting public property or a public road or waterway is
wholly unpersuasive; while we find no Missouri case with facts directly analogous to the one at
bar, “[w]hether a nuisance exists depends upon the factual circumstances of each case.” City of
11
Lee’s Summit v. Browning, 722 S.W.2d 114, 115–16 (Mo. App. W.D. 1986) (affirming the trial
court’s conclusion that appellants’ use of their property as a salvage yard constituted a public
nuisance because the conditions of the salvage operation were “a threat to the health, safety, and
welfare of the city’s residents” where salvage on the appellants’ property was visible from the
street adjoining the property, salvaged vehicles were parked along the street so that they
interfered with passing traffic, oil from salvage leaked into the ground and ran off onto
surrounding residential property during heavy rains, and the salvage operation was frequently
noisy) (citing Frank v. Envtl. Sanitation Mgmt., 687 S.W.2d 876, 881 (Mo. banc 1985)).
Appellants’ contention that no Missouri public nuisance case has addressed a factual situation
similar to that present in this case is accurate. No Missouri public nuisance case has applied the
law to a scenario where a private property owner invites members of the public onto his property
to engage in activities involving conditions that are inherently dangerous while providing little
warning, guidance, or supervision to people who are engaging in said activities and where such
resulted in several deaths over the course of years. In other words, no Missouri public nuisance
case has addressed a factual situation where a property owner has actually invited people to the
alleged nuisance.
However, we find multiple Missouri cases finding existence of a public nuisance where
said nuisance was present on private property in conjunction with a commercial enterprise and
was found to interfere with the public’s common right to health, welfare, and/or safety. See
Metro. St. Louis Sewer Dist. v. Zykan, 495 S.W.2d 643, 653–54 (Mo. 1973) (affirming the trial
court’s conclusion that the defendant corporations’ and real estate developer’s failure to
construct a drainage ditch channel as required by contract constituted a public nuisance because
said failure resulted in an increased risk of dangerous flooding that “endanger[ed] the health and
12
welfare of an unlimited area”); State ex rel. Renfrow v. Serv. Cushion Tube Co., 291 S.W. 106,
108–09 (Mo. banc 1927) (affirming the trial court’s conclusion that appellants’ operation of a
factory that produced rubber products constituted a public nuisance because the factory emitted
significant noise and vibrations that were noticeable within the surrounding three blocks and
produced “offensive odors, deleterious to the health of the people in the community”); Schnitzer
v. Excelsior Powder Mfg. Co., 160 S.W. 282, 285–87 (Mo. App. W.D. 1912) (affirming the trial
court’s conclusion that appellant’s storing of high quantities of blasting powder constituted a
public nuisance because said practice interfered with the common community right of public
safety where an explosion of the blasting powder on appellant’s property injured passengers on a
nearby train); Canty, 105 S.W. at 1083–84 (concluding that defendants’ operation of a bullfight
performance on private property constituted a public nuisance because said activity was “in its
very nature…, both public and at the same time injurious to the public safety and good morals,”
and further reasoning that “a court of equity has full power and jurisdiction to abate the existing
nuisance, and to perpetually enjoin the owners of the property from maintaining or conducting
the same in the future”). While admittedly dated, we find the holding of Canty, 105 S.W. 1083–
84 to be particularly persuasive, if not binding, upon the facts of this case. The Supreme Court of
Missouri made clear in that case (which has not been overruled or distinguished) that use of
private property to conduct and maintain activity that draws members of the public to the
property, yet simultaneously interferes with the common right to safety of the members of the
public who partake in that activity, may constitute a public nuisance. Id. And relatedly in a
different respect, the Supreme Court of Missouri has held that cities may be held liable for
unguarded/unsupervised bodies of water that are created or maintained by the city or that the city
fails to abate because such bodies of water constitute public nuisances in that they are highly
13
attractive and inherently dangerous. See Davoren v. Kansas City, 273 S.W. 401, 404–05 (Mo.
banc 1925) (reasoning that the defendant city was liable for damages resulting from children
drowning in a pond that was created by the city’s construction of a dam because “[t]he legal
obligation rests upon all who create or allow such dangerous conditions to use reasonable
precautions to see that no unnecessary injury shall flow therefrom to others…”); Capp v. City of
St. Louis, 158 S.W. 616, 617–18 (Mo. 1913) (concluding that the defendant city was liable for
damages resulting from children drowning in a pool located in a public park because the
unguarded and unsupervised pool was an “inexcusable nuisance, which is a constant menace to
the lives of the children who visit [the park]”).
While the Hensons undoubtedly have private proprietary rights in regard to how they use
their property, we see little reason why the combined holdings of these aforementioned cases
should not be applicable to the specific facts of this case, where Appellants invite generally and
open their property to members of the public. See Canty, 105 S.W. 1083–84; see also Browning,
722 S.W.2d at 115 (stating that “[w]hether a nuisance exists depends upon the factual
circumstances of each case”). We find the reasoning set forth in those cases to be instructive
here, as each of those cases essentially iterated that property (whether public or private) may not
be used to create or maintain a dangerous condition or activity that interferes with the common
rights of public health, welfare, and/or safety. We believe that this perspective is consistent with
general Missouri public nuisance precedent that states a public nuisance may be found in “a
place where the public is likely to congregate, … [or] a place where the public is likely to come
into contact with the nuisance,” New York-Kansas Bldg. Assocs., L.P., 96 S.W.3d at 857 and
Martin Marietta Materials, Inc., 299 S.W.3d at 618–19, or where members of the public “are
likely to come within the sphere of [the nuisance’s] influence,” Varahi, Inc., 39 S.W.3d at 535.
14
Here, Appellants’ entire operation of the Offsets is centered on Appellants inviting
members of the general public to the Hensons’ property using roadside signs and social media.
Appellants invite the public onto the Hensons’ property to engage in outdoor activities (relevant
to this case, swimming and diving) in exchange for an admission charge. As a direct result of
Appellants’ invitation, members of the public congregate at the Offsets and are likely to come
into contact with the nuisance at issue here and within the sphere of its influence. See New York-
Kansas Bldg. Assocs., L.P., 96 S.W.3d at 857; Martin Marietta Materials, Inc., 299 S.W.3d at
618–19; Varahi, Inc., 39 S.W.3d at 535. Undoubtedly, members of the public who enter the
Hensons’ property at Appellants invitation do not leave their common community rights at the
door; their rights to life, health, and safety do not suddenly disappear. Additionally, during
operation, the Offsets admits dozens to hundreds of people per day; thus, the interference with
the common rights at issue here clearly affects a “considerable number of persons,” which
further supports the conclusion that Appellants’ operation of the Offsets constitutes a public
nuisance. See Martin Marietta Materials, Inc., 299 S.W.3d at 616; Varahi, Inc., 39 S.W.3d at
535. Appellants’ activities in operating the Offsets—which, as found by the trial court, have
resulted in the deaths of nine people since 1989—certainly affect the common community rights
of the members of the public who enter the Hensons’ property at Appellants’ invitation. The trial
court did not erroneously declare or apply the law in concluding that Appellants’ operation of the
Offsets was a public nuisance.
In essence, Appellants ask this Court to turn a blind eye to the several deaths of members
of the public that have occurred in the course of Appellants’ operation of the Offsets over the last
three decades. This we will not do, especially considering the substantial evidence supporting the
trial court’s findings and conclusions regarding Appellants’ systematic failures spanning over 30
15
years to sufficiently warn invited members of the public of inherently dangerous conditions
present on the Hensons’ property and to adequately attempt to prevent or prepare for injury
caused by those dangerous conditions.
The exhibits (specifically, the coroner’s reports) and testimony of Follis and Sheriff
McCutcheon sufficiently constitutes substantial evidence supporting the trial court’s factual
findings on the nine deaths that have occurred in conjunction with Appellants’ operation of the
Offsets since 1989. And the testimony of Wood and Oostman (an expert witness), and even some
of Gary’s testimony and deposition, sufficiently constitutes substantial evidence supporting the
trial court’s factual findings on the dangerous conditions present at the Offsets and Appellants’
actions/inactions to mitigate those conditions. In particular, Wood’s testimony noting that he saw
no staff members monitoring the water, no rescue or medical equipment near the water except
for a flotation ring, and only one employee briefly after entering the property during his visit,
Oostman’s testimony noting the dangerous conditions and opining that the Offsets’s signage and
preparative and preventive measures were inadequate, and Gary’s testimony detailing the bluffs
surrounding the lake, stating that guests may jump from almost anywhere around the lake, and
admitting that the Offsets lacked adequate warning signage as described by Oostman all support
the trial court’s findings. Appellants conclusively argue that “nine deaths over thirty-two years is
not a public nuisance.” This statement seemingly diminishes the deaths of nine people, which we
find appalling, and is also somewhat inaccurate: swimming and diving at the Offsets only occurs
during warm seasons (less than half of the year); in reality those nine deaths occurred over a
period of time closer to 16 years. In sum, the evidence presented constitutes substantial evidence
supporting the trial court’s conclusion that Appellants’ operation of the Offsets was a public
nuisance because said operation interferes with the common community right of public safety.
16
The common right to safety, health, and life of the members of the public who have visited the
Offsets has been interfered with at least nine times over the past three decades, and Appellants’
failure to warn of inherently dangerous conditions and to adequately attempt to prevent or
prepare for injury caused by those dangerous conditions continues to create increased risk of
serious physical injury or death to those members of the public who are guests of the Offsets.
Points I and IV are denied.
Points II and III
In their second and third points on appeal, Appellants argue that the trial court erred in
enjoining Rebecca (Point II) and Gary (Point III) respectively because there was no evidence in
the trial record indicating that either owns or operates the Offsets (the commercial swimming and
diving enterprise). Appellants’ arguments asserted in these points are entirely unpersuasive.
“The issuance of injunctive relief, along with the terms and provisions thereof, rests
largely with the sound discretion of the trial court.” Edmunds v. Sigma Chapter of Alpha Kappa,
87 S.W.3d 21, 29 (Mo. App. W.D. 2002); see also Doe v. Phillips, 259 S.W.3d 34, 36 (Mo. App.
W.D. 2008). The trial court “is vested with a broad discretionary power to shape and fashion
relief to fit the particular facts, circumstances and equities of the case before it.” Burg v.
Dampier, 346 S.W.3d 343, 357 (Mo. App. W.D. 2011) (quoting Schluemer v. Elrod, 916 S.W.2d
371, 379 (Mo. App. S.D. 1996)).
It is uncontested that the Hensons have owned the property at which the Offsets operates
since at least 1996. Additionally, Gary testified at trial that he has managed the Offsets since the
early 1980’s and is the sole member and manager of Offsets Recreation, which he formed in
2009. Although Appellants’ primary contention is that neither Rebecca nor Gary should have
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been enjoined in this case because they do not own or operate the Offsets,6 Appellants’
responsive pleadings and Gary’s testimony constitute substantial evidence supporting the trial
court’s injunction against the Hensons. In addition to the other abundant evidence admitted at
trial, Appellants’ responsive pleadings and Gary’s testimony showed that the Hensons
(regardless of who was “operating” the Offsets) have allowed their property to be used since
their purchase of it in such a way that constitutes a public nuisance.
The clear purpose of the injunction issued by the trial court was to specifically prevent
operation of the Offsets swimming and diving enterprise (the public nuisance) until certain safety
and emergency measures were implemented. As owners of the property, it was logically
necessary to enjoin the Hensons from operating the Offsets personally or allowing such
operation on their property because the dangerous geographic characteristics (specifically, the
high bluffs surrounding the quarry and the quarry itself) on the Hensons’ property were the
dangerous conditions at the center of this public nuisance case. The trial court’s injunction
against Appellants, including the Hensons, was necessary to ensure abatement of the public
nuisance before the Hensons could use their property or allow their property to be used as a
commercial swimming and diving facility. We therefore find that there was substantial evidence
to support the trial court’s injunction against both Gary and Rebecca.
Points II and III are denied.
6
We note that Appellants’ assertion that there was no evidence in the record that Gary “owns or operates the
Offsets” is completely contradicted by Gary’s own testimony at trial, wherein he confirmed that he was the sole
member and manager of Offsets Recreation and had operated the Offsets since 1986.
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IV. Conclusion
The trial court did not err in concluding that Appellants’ operation of the Offsets, as
found by the trial court, constituted a public nuisance. Nor did the trial court err in enjoining the
Hensons in this case. For the foregoing reasons, the judgment of the trial court is affirmed.
_______________________________
Colleen Dolan, Chief Judge
Robert G. Dowd, Jr., J., concurs.
Lisa P. Page, J., concurs.
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