Hendrickson v. Georgia Power Co.
| Decision Date | 02 February 2000 |
| Docket Number | No. 5:96-CV-500-3(DF).,5:96-CV-500-3(DF). |
| Citation | 80 F.Supp.2d 1374 |
| Parties | Patrick M. HENDRICKSON, Plaintiff, v. GEORGIA POWER COMPANY, Defendant. |
| Court | U.S. District Court — Middle District of Georgia |
Charles E. Cox, Jr., Macon, GA, Charles R. Adams, III, Macon, GA, for Patrick M. Hendrickson, plaintiff.
Howard Jerome Strickland, Howard Jerome Strickland, Jr., Macon, GA, for Georgia Power Co., defendant.
Presently before the Court is Defendant's Motion for Summary Judgment in this wrongful death suit brought by Patrick Hendrickson, the father of Grant Hendrickson, deceased, against Defendant, the Georgia Power Company. The issues in this case arise from the murders of Grant Hendrickson and Michelle Cartagena on January 3, 1995. Andrew Cook was convicted of the murders and sentenced to death in the Superior Court of Monroe County in March, 1998. The murders took place at Defendant's camp site, Dames Ferry, near Lake Juliette. Plaintiff seeks to hold Defendant liable for Grant Hendrickson's death, claiming that the security inadequacies at this campsite led to this tragedy.
The facts leading up to this case are relatively undisputed. In the early morning hours of January 3, 1995, Grant Hendrickson and a female companion, Michelle Cartagena, were parked in a vehicle at the Dames Ferry Campsite. The campsite is a sixty-five acre tract of land owned by Georgia Power that fronts Lake Juliette. The campsite was open to the public on a 24-hour basis, and it included a boat launching ramp, a parking lot, a small dock, concrete picnic tables, and public toilets. The public was permitted to use this facility without charge.
While at the campsite, Hendrickson parked his vehicle "on the point," an area at Dames Ferry very close to the water. Although the exact details are still unclear, it is undisputed that while parked in their vehicle, a man named Andrew Cook shot and killed both Hendrickson and Cartagena. Although Hendrickson's body was found in the vehicle, the partially nude body of Cartagena was dragged several feet away from the car. After a lengthy investigation of the crime, Mr. Cook was indicted and subsequently convicted of the murders. Although Mr. Cook's motive is still somewhat of a mystery, no one contends that this was any sort of property crime.
There were no security guards at the Dames Ferry campsite on the night in question. Defendant concedes that security personnel were only on site during the period from Memorial Day to Labor Day, the time in which the campsite received the most visitors, and even then, they were only hired for weekend duty. Most of the incidents which occurred on the site, some of which could be characterized as criminal, occurred during the time period described above. There were a number of alcohol-related incidents at the site, particularly fights, which occurred during the years preceding the murder of Mr. Hendrickson.
In light of these incidents, the Plaintiff contends that the Defendant shares responsibility for the murder of Grant Hendrickson. Its negligence in permitting an environment in which violent or potentially violent crimes frequently occurred, Plaintiff contends, was a contributing cause of Hendrickson's death. Defendant argues that because it allowed members of the public to use its land free of charge, it cannot be held liable for simple negligence under Georgia's Recreational Property Act. Moreover, even if that act does not apply, the Defendant argues that it cannot be found liable here because the murders were not foreseeable as a matter of law. After a brief description of the standard of review to be applied in this context, the Court will address each of these contentions in turn.
In reviewing a motion for summary judgment, the court must view the record and all inferences therefrom in a light most favorable to the nonmoving party. See WSB-TV v. Lee, 842 F.2d 1266, 1270 (11th Cir.1988). Summary judgment may be granted where "there is no genuine issue as to any material fact." Fed.R.Civ. Proc. 56(c); Lordmann Enterprises, Inc. v. Equicor, Inc., 32 F.3d 1529, 1532 (11th Cir.1994). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Williams v. Vitro Services Corp., 144 F.3d 1438, 1441 (11th Cir.1998) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)).
Only when the moving party demonstrates that there is "an absence of evidence to support the non-moving party's case" will the burden then shift to the non-moving party to go beyond the pleadings and present specific evidence giving rise to a triable issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). "The evidence presented cannot consist of conclusory allegations or legal conclusions." Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir.1991) (citing First Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)). However, the mere presence of an alleged factual dispute between the parties does not make summary judgment improper; a genuine issue of material fact must exist for a court to deny summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
The State of Georgia enacted the Recreational Property Act (RPA), O.C.G.A. § 51-3-20 et seq., in order to "encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners' liability toward persons entering thereon for recreational purposes." O.C.G.A. § 51-3-20. To that end, landowners who allow their land to be used for recreational purposes are insulated from tort liability in certain instances. For example, a person using the land for recreational purposes will not be considered an invitee or licensee to whom a duty of care is owed. See O.C.G.A. § 51-3-24(2). Also, a landowner covered by the RPA generally has no duty to ensure that his premises are safe for those who use it. See O.C.G.A. § 51-3-22.
The RPA, however, applies only to landowners who allow persons to use their land for recreational purposes without charge. See O.C.G.A. § 51-3-23. A "charge" is defined as "the admission price or fee asked in return for invitation or permission to enter or go upon the land." O.C.G.A. § 51-3-21(1). The parties agree that Georgia Power did not require visitors to pay a fee in order to enter the Dames Ferry area. However, as Plaintiff correctly points out, the Georgia courts have denied defendants the shield of the RPA even where no fees have been charged under the so-called "business purpose" exception to RPA immunity. Plaintiff argues that the Dames Ferry campsite is operated for a "business purpose," and as a consequence of this fact, the Defendant cannot claim the protections of the RPA. In support of his position, Plaintiff cites the case of Cedeno v. Lockwood, Inc., 250 Ga. 799, 301 S.E.2d 265 (Ga.1983). In that case, the owner a building adjoining an entertainment establishment, Underground Atlanta, argued that it should receive the protections of the RPA because it provided recreational activities (in the form of entertainment facilities) to the public, free of charge. Although the court recognized that no charge was involved, it nonetheless declined to extend the protections of the RPA to the property owner in that case. The reason, the court noted, was that the defendant was in the "business of entertainment or recreation." Id. at 267 (Emphasis in original). The property owners in Underground Atlanta provided access in order to "attract the public to their businesses, not to give the public a place for recreation." Id. The Court explicitly stated that where "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." Id.
Plaintiff seizes on this language and argues that Georgia Power is similarly prevented from invoking the protections of the RPA because its business interests are also furthered by the public's use of Dames Ferry. Specifically, Plaintiff notes that Defendant benefits from this use in two ways: (1) the Defendant passes on the costs of operating Dames Ferry when it charges its retail and wholesale utility customers, thereby recovering not only the costs associated with the project but also a small return; and (2) the Defendant is able to generate "good will" among customers as well as various other entities involved in the assessment of its rates. Neither argument is persuasive.
Plaintiff misapprehends the function of the "business purpose" exception to the RPA by focusing only on whether the Defendant made a profit on the land allegedly donated for public use. In City of Tybee Island v. Godinho, 270 Ga. 567, 511 S.E.2d 517 (Ga.1999), the court rejected such a broad view of the business purpose exception. There, the court held that a sidewalk owned and operated by a municipality fell within the auspices of the RPA. Although the court acknowledged that there was evidence in the record from which an inference could be made that the city would receive some indirect financial benefit — in the form of sales tax revenues — from the public's ability to use and access businesses along the sidewalk, the court did not find this fact to be dispositive:
The evidence in this case shows that a primary purpose of the sidewalk is to "give the public a place of recreation" by providing access to and viewing of a scenic site, and that the City is not in the business of entertainment or recreation and does not seek to...
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