Martin v. Dempsey Funeral Servs. of Ga., Inc.

319 Ga.App. 343

735 S.E.2d 59

MARTIN

v.DEMPSEY FUNERAL SERVICES OF GEORGIA, INC. et al.

No. A12A1418.

Court of Appeals of Georgia.

Nov. 29, 2012.

Reconsideration Denied Dec. 13, 2012.

Barry Scott Noeltner, Atlanta, Kelly Lynn Turner, for Appellant.

Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Atlanta, Steven Ross Wilson, for Appellees.

MILLER, Presiding Judge.

Appellant Genevieve Martin sued appellees Dempsey Funeral Services of Georgia, Inc., and Magnolia Landcare Group, Inc., to recover for personal injuries that she allegedly sustained when she slipped and fell while visiting her daughter's gravesite at Dempsey Funeral's cemetery. The trial court granted summary judgment in favor of Dempsey Funeral and Magnolia Landcare, finding that the Recreational Property Act, OCGA § 51–3–20 et seq. ("RPA"), precluded Martin's claims. The trial court alternatively concluded that summary judgment was appropriate since Martin was a licensee and there was no evidence that appellees had breached the standard of care. On appeal, Martin contends that the trial court's decision was erroneous since (i) a jury question existed as to whether the RPA applied because the cemetery had mixed commercial and recreational uses; (ii) the RPA did not extend to Magnolia Landcare, a non-owner; and (iii) Martin had the status of an invitee, rather than a licensee.¹ We agree that the evidence raised jury questions as to the applicability of the RPA and Martin's legal status as either an invitee or a licensee. Accordingly, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citations omitted.) Carroll v. City of Carrollton, 280 Ga.App. 172, 172–173, 633 S.E.2d 591 (2006).

So viewed, the record evidence reflects that on October 22, 2008, Martin's daughter was interred at the Rolling Hills Memory Gardens cemetery, which was owned and operated by Dempsey Funeral. Thereafter, on January 31, 2009, Martin, who was 85 years old, visited the cemetery with the intention of placing flowers at her daughter's gravesite. As she walked toward the gravesite, Martin slipped and fell. Following the fall, an orange baling twine was observed tangled around Martin's feet. Martin asserted that the baling twine was a trip hazard that had been negligently left on the ground, and that the baling twine was not easily visible since it was concealed by straw covering the ground.

Magnolia Landcare, a subsidiary of Dempsey Funeral, had performed certain aspects of the care and maintenance of the cemetery, including mowing the grass, trimming near grave markers, and distributing pine and wheat straw to make the cemetery grounds aesthetically pleasing. The pine and wheat straw used on the cemetery grounds was bound by baling twine and was kept in the cemetery's storage facility. The baling twine that had allegedly caused Martin's fall had the same color and similar appearance of the baling twine that had been used to bind the cemetery's pine and wheat straw.

As a result of the fall incident, Martin sustained injuries, including a broken arm and a broken hip. Martin filed the instant lawsuit against Dempsey Funeral and Magnolia Landcare, contending that they had breached their duty of care to keep the cemetery premises safe and to remove debris and trip hazards in the gravesite area.

Dempsey Funeral and Magnolia Landcare denied liability. Following discovery, they jointly filed a motion for summary judgment, arguing that the RPA applied to the suit; Magnolia Landcare owed no duty since it was not an owner or occupier of the cemetery premises; Martin was a licensee on the cemetery premises; and no recovery was allowed since there was no evidence of a wilful or wanton injury. After hearing oral argument from the parties, the trial court granted the motion.

1. Martin contends that the trial court's grant of summary judgment was improper since the cemetery had mixed commercial and recreational uses, which raised a jury question as to whether the RPA applied.² We agree.

In accordance with the statutory provisions of the RPA,

... an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes does not thereby:

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

(2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed; or

(3) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.

OCGA § 51–3–23. As an exception, the RPA does not limit liability "[f]or willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity[.]" OCGA § 51–3–25(1).

By its plain terms, the RPA requires that the property be used for recreational purposes without charge. See OCGA § 51–3–23. It has been recognized, however, that a property may have mixed commercial and recreational purposes. In this regard, our Supreme Court of Georgia has ruled that "in order for the RPA to apply, it is not necessary that the public be on property for sheer recreational pleasure[,] and that the RPA may apply in situations where commercial interests are mixed with recreational activities." (Citation and punctuation omitted.) Anderson v. Atlanta Comm. for the Olympic Games,

273 Ga. 113, 116(2), 537 S.E.2d 345 (2000). Nevertheless, "[i]f the public is invited to further the business interests of the owner—e.g., for sales of food, merchandise, services, etc.—then the RPA will not shield the owner from liability even though the public receives some recreation as a side benefit." (Punctuation omitted.) Id. To determine the applicability of the RPA, the important criterion is the purpose for which the public is permitted on the property. Id. The Court has adopted a balancing test that must be applied in making this determination, which " requires that all social and economic aspects of the activity be examined. Relevant considerations on this question include, without limitation, the intrinsic nature of the activity, the type of service or commodity offered to the public, and the activity's purpose and consequence." (Citation, punctuation, and emphasis omitted.) Id. at 117(2), 537 S.E.2d 345. In applying the balancing test, the factfinder is not limited in its consideration to the facts as they existed at the moment of injury. Atlanta Comm. for the Olympic Games, Inc. v. Hawthorne, 278 Ga. 116, 117, 598 S.E.2d 471 (2004). Rather, the fact finder may consider a larger time frame and the totality of the circumstances. Id. at 120(3), 598 S.E.2d 471.

"[W]hether the RPA applies to limit the liability of the owner of a certain property at a certain time is a question of law for the trial court." (Citation and punctuation omitted.) Hawthorne, supra, 278 Ga. at 117(1), 598 S.E.2d 471. However, where the evidence conflicts regarding the purpose of the property, the factfinder must resolve the conflict. Id.

Even where there is no factual dispute over the recreational and commercial activities on the property, summary judgment is improper where a fact question regarding the owner's purpose is created by objective evidence, such as proof that the owner knowingly obtained, directly or indirectly, financial benefits for the purpose of pecuniary gain from business interests on the property as a result of its decision to invite or permit the public without charge to enter the property.

(Punctuation and footnote omitted.) Butler v. Carlisle, 299 Ga.App. 815, 825(5), 683 S.E.2d 882 (2009).

Here, the evidence presents a factual dispute as to whether Dempsey Funeral's purpose of the property was commercial or recreational.

Dempsey Funeral aptly points to evidence reflecting that the cemetery did not have gates or barriers to limit access; the cemetery was open to the public at all times; and members of the public were permitted to use the cemetery for recreational purposes, such as for picnics, jogging, walking, and walking pets. In this regard, a fact finder could conclude that the cemetery's purpose was recreational.

Nevertheless, the evidence also reflected that Dempsey Funeral operated the cemetery as a part of its for-profit business, and sold gravesite and interment rights for the burial of decedents at the cemetery in accordance with its commercial enterprise. Dempsey Funeral was "in the cemetery business" and operated four cemeteries as part of its business. Indeed, Dempsey Funeral was paid for the interment of Martin's daughter. In addition to purchasing the daughter's gravesite, Martin's son-in-law had also entered into commercial contracts for the purchase of interment rights for himself, his wife, and Martin. The evidence would authorize a finding that family visits to the gravesites were expected and intended activities that were at least implied under the commercial purchases of the interment rights for perpetual care at the cemetery. There was also evidence that would authorize a finding that allowing access for gravesite visits furthered the commercial purposes of the cemetery and provided financial benefits related to the sales of gravesite and interment rights. In this regard, a fact finder could conclude that the purpose of the cemetery was commercial in nature.

In light of the conflicting evidence as to the purpose of the cemetery, reasonable minds could differ as to the conclusion to be reached, and summary adjudication of this issue was improper. See, e.g., Hawthorne, supra, 278 Ga. at 117–118(1), 598 S.E.2d 471; Butler, supra, 299 Ga.App. at 824–825(5), 683 S.E.2d 882. Accordingly, "the trial court must submit the issue to the jury to perform the balancing test, considering the...