Hendrickson v. Georgia Power Co., 00-11069
| Decision Date | 31 January 2001 |
| Docket Number | No. 00-11069,Docket No. 96-00500-CV-3-5,00-11069 |
| Citation | 240 F.3d 966 |
| Parties | (11th Cir. 2001) PATRICK M. HENDRICKSON, Plaintiff-Appellant, v. GEORGIA POWER CO., Defendant-Appellee. D. C. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Middle District of Georgia
Before DUBINA and HULL, Circuit
Judges, and HODGES*, District Judge.
Appellant-Plaintiff Patrick Hendrickson appeals the district court's order granting Appellee-Defendant Georgia Power Company's motion for summary judgment on his wrongful death complaint, and denying Hendrickson's motion for partial summary judgment. The principal question on appeal is whether the Georgia Recreational Property Act ("RPA"), O.C.G.A. 51-3-20, et seq., provides immunity to Georgia Power as the owner of recreational property. After review, we affirm.
Appellant-Plaintiff Patrick Hendrickson ("Hendrickson") is the father of a teenage boy murdered at the Dames Ferry Public Use Area ("Dames Ferry"), adjacent to Lake Juliette in Monroe County, Georgia. The teenage boy and a female companion were found dead on the morning of Tuesday, January 3, 1995, on the "point" located on Dames Ferry very close to the water. Both victims had multiple gunshot wounds. Although the body of Hendrickson's son was found in his vehicle, the partially nude body of his son's companion was dragged several feet away from the vehicle. Andrew Cook was arrested and later convicted for both murders.
Dames Ferry is a sixty-five-acre tract fronting on Lake Juliette. Appellee-Defendant Georgia Power Company ("Georgia Power") owns both Dames Ferry and Lake Juliette which supplies water for cooling and steam generation at Georgia Power's Plant Scherer. Georgia Power makes Dames Ferry and Lake Juliette available at no charge to the public for boating, fishing, sailing, swimming, picnicking, camping, hunting, hiking, and scenic viewing of the lake and surrounding area. There are no admission or parking fees at Dames Ferry. There are also no Georgia Power vendors or any other commercial vendors located at Dames Ferry. All recreational features, such as a boat-launching ramp and picnic tables, are provided to visitors at no charge.
Dames Ferry is used extensively by the public from May through early September of each year, when thousands of individuals visit the park. Dames Ferry is used to a much lesser degree in the early spring and fall, and it is used the least during the winter. On weekends from Memorial Day to Labor Day, Georgia Power employs a private security company to monitor the area.
Hendrickson brought this wrongful death tort action against Georgia Power to recover damages caused by the death of his son. Hendrickson's complaint alleged that Georgia Power was negligent in that (a) "the unreasonable risk of violent criminal activity to which [his son] was exposed while lawfully on Georgia Power's premises" was reasonably foreseeable and (b) Georgia Power negligently chose "not to take any reasonable measures for the security or protection of persons," such as his son.
At a discovery conference, the district court by consent limited discovery to the applicability of the RPA. After Georgia Power filed a motion for summary judgment, Andrew Cook was convicted for the murder of Hendrickson's son. Hendrickson then filed an excerpt from the criminal trial transcript and in turn Georgia Power proposed to file the entire transcript. The district court then summarily denied Georgia Power's motion for summary judgment and ordered that "[t]he Court will, however, allow Defendant to renew any contention made in its summary judgment motion after further discovery on all liability issues is conducted."
After additional discovery, Hendrickson moved for partial summary judgment arguing that the immunity from liability afforded to property owners under the RPA did not apply to Georgia Power. Georgia Power simultaneously moved for summary judgment as to all liability issues. The district court denied Hendrickson's motion for summary judgment and granted Georgia Power's second motion for summary judgment. See Hendrickson v. Georgia Power Co., 80 F. Supp. 2d 1374, 1383 (M.D. Fla. 2000). In its order, the court determined: (1) that Georgia Power was entitled to the immunity protections afforded by the RPA; (2) that the RPA's liability exception for willful or malicious failure to warn against a dangerous condition did not apply because the evidence did not create an issue of material fact regarding Georgia Power's knowledge of a dangerous condition at Dames Ferry; and (3) that even if the RPA was not applicable, the murders were not foreseeable crimes, and thus Georgia Power did not have a duty to use reasonable care to prevent the death of Hendrickson's son. Hendrickson timely appealed.
We review de novo a district court's grant of summary judgment, applying the same legal standard employed by the district court. See Whatley v. CNA Ins. Cos., 189 F.3d 1310, 1313 (11th Cir. 1999). A party seeking summary judgment must demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether genuine issues of material fact exist, we view all evidence, and make all reasonable inferences, in favor of the party opposing summary judgment. See Whatley, 189 F.3d at 1313.
The State of Georgia enacted the Georgia Recreational Property Act ("RPA"), O.C.G.A. 51-3-20, et seq., to limit, with narrow exceptions, the liability of a landowner who makes its property available "without charge" to the public for "recreational purposes."1 O.C.G.A. 51-3-20 to 51-3-25. The statutory purpose of the RPA is "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. Section 51-3-22 of the RPA limits the land owner's duty of care as follows:
Except as specifically recognized or provided in Code Section 51-3-25, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.
O.C.G.A. 51-3-22.2 In turn, 51-3-25 provides that nothing in the RPA, however limits liability for "willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity." O.C.G.A. 51-3-25. The net result is that under the RPA a landowner who makes his property available to the public for recreational use "without charge" is liable only for "willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity." O.C.G.A 51-3-20 to 51-3-25.
The Georgia Supreme Court has applied the RPA in a number of decisions that inform our analysis in this case.3 In Cedeno v. Lockwood, 301 S.E.2d 265 (Ga. 1983), the Georgia Supreme Court held that Lockwood, the defendant, was not protected by the RPA because the public was permitted on the property for business purposes, even though the business was recreational in nature. See id. at 267. The plaintiff was injured on Lockwood's stairway adjacent to a building in Underground Atlanta. The Underground Atlanta property owners, including Lockwood, made "their property available to the public for entertainment purposes and anticipate the visitors will purchase food, merchandise, or services available." Id. Finding that the property owners of Underground Atlanta were in the "business of entertainment or recreation," the Georgia Supreme Court held that "[t]he important criterion is the purpose for which the public is permitted on the property." Id. The Georgia Supreme Court further held that "[i]f the public is invited to further the business interests of the owner . . . the RPA will not shield the owner from liability even though the public receives some recreation as a side benefit." Id.
In contrast, in City of Tybee Island v. Godinho, 511 S.E.2d 517 (Ga. 1999), the Georgia Supreme Court held that the City's sidewalk, adjacent to a public beach, was protected by the RPA even though the City received an indirect financial benefit from the presence of the sidewalk. See id. at 519. The Georgia Supreme Court found 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 make a profit from the use of the sidewalk.
Id. (quoting Cedeno, 301 S.E.2d at 267); see Bourn v. Herring, 166 S.E.2d 89 (Ga. 1969) (); Quick v. Stone Mountain Mem'l Ass'n, 420 S.E.2d 36 (Ga. App. 1992) (); Hogue v. Stone Mountain Mem'l Ass'n, 358 S.E.2d 852 (Ga. App. 1987) (same).
"[I]n situations where commercial interests are mixed with recreational activities," the Georgia Supreme Court recently has adopted a "balancing test" to determine whether the protection of "the RPA may apply." Anderson v. Atlanta Comm. for the Olympic Games, Inc., 537 S.E.2d 345, 348 (Ga. 2000)....
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