McNeal Loftis, Inc. v. Helmey, A95A1952

• Decision Date: 02 October 1995
• Docket Number: No. A95A1952,A95A1952
• Citation: 462 S.E.2d 789,218 Ga.App. 628
• Parties: McNEAL LOFTIS, INC. v. HELMEY.
• Court: Georgia Court of Appeals

Page 789

462 S.E.2d 789

218 Ga.App. 628

McNEAL LOFTIS, INC. v. HELMEY.

No. A95A1952.

Court of Appeals of Georgia.

Oct. 2, 1995.

Clark & Clark, Fred S. Clark, Savannah, for appellant.

Inglesby, Falligant, Horne, Courington & Nash, Thomas A. Nash, Donaldson, Herndon, Bell & Metts, P.C., James C. Metts, III, V. Claire Cornwell-Williams, Savannah, for appellee.

BLACKBURN, Judge.

McNeal Loftis, Inc. d/b/a Hillcrest Abbey West (Hillcrest), a cemetery owner, appeals the trial court's denial of its motion for summary judgment that it had not interfered with burial rights as contended.

Margaret Helmey brought this action individually and as executrix of the estate of Sidney E. Helmey, her husband. Mr. Helmey died on October 11, 1993. The next day Hillcrest was advised that his burial would take place at 11:00 a.m. on October 13. Hillcrest was familiar with the burial location and had no indication of anything unusual that would hamper preparing the grave. Hillcrest commenced digging the grave at 9:40 a.m. the morning of the funeral, discovering that the soil was very hard and was filled with roots. It soon became apparent that the grave could not be prepared before the 11:00 a.m. funeral, and a Hillcrest representative contacted the funeral home where the memorial service was being conducted. The Hillcrest representative explained the problem and asked that the funeral party be detained until the grave could be completed. The record is silent as to why, but the funeral party was not detained and arrived at the cemetery unaware of the problem. At the grave site, they discovered maintenance men in the process of digging the grave using a dump truck and a backhoe. At plaintiff's request, the truck and backhoe were temporarily removed and the burial service conducted. While offered the opportunity to return to the funeral home while the grave was being prepared, plaintiff and other members of the funeral party chose to remain at the cemetery until the body was interred. In addition to problems preparing the grave, the burial was further delayed when a vault plaintiff had purchased from Hillcrest as well as its replacement proved to be defective. The third vault supplied by Hillcrest proved to be suitable, and burial was concluded around 3:30 p.m.

The trial court granted Hillcrest's summary judgment on contractual claims regarding the defective vault but denied summary judgment on the issue of whether Hillcrest interfered with the plaintiff's right to bury her husband. We granted Hillcrest's request for interlocutory appeal.

Hillcrest owed plaintiff the duty not to wilfully or wantonly interfere with the burial of her husband. Habersham Mem. Park v. Moore, 164 Ga.App. 676, 678, 297 S.E.2d 315 (1982). A demonstration of mere negligence is not sufficient to show wilful or wanton behavior. In order to prove wilful or wanton conduct, a plaintiff must demonstrate that a defendant's acts were " 'such as to evidence a wilful intention to inflict the injury, or else [were] so reckless or so charged with indifference to the consequences ... as to justify ... finding a wantonness equivalent in spirit to actual intent.' [Cit.]" Hawes v. Central of Ga. R. Co., 117 Ga.App. 771, 772, 162 S.E.2d 14 (1968). Providing every favorable inference to the plaintiff as we are required to do in evaluating a motion for summary...