Mercer Univ. v. Stofer

• Decision Date: 13 March 2020
• Docket Number: A17A1515
• Citation: 354 Ga.App. 458,841 S.E.2d 224
• Parties: MERCER UNIVERSITY v. STOFER, et al.
• Court: Georgia Court of Appeals

354 Ga.App. 458

841 S.E.2d 224

MERCER UNIVERSITY

v.STOFER, et al.

A17A1515

Court of Appeals of Georgia.

March 13, 2020

Bendin Sumrall & Ladner, Brian D. Trulock, Alan J. Payne, for appellant.

Conley Griggs Partin, Ranse M. Partin, Davis S. Popper, for appellees.

Markle, Judge.

After Sally Stofer was fatally injured in a fall while attending a free concert at Mercer University ("Mercer"), her estate and her children filed a wrongful death action against Mercer. Mercer Univ. v. Stofer , 306 Ga. 191, 192 (1), 830 S.E.2d 169 (2019). Mercer moved for summary judgment on the ground that it was immune from suit under the Recreational Property Act ("RPA"), OCGA § 51-3-20, et seq. Id. The trial court denied the motion, and we affirmed. Mercer Univ. v. Stofer , 345 Ga. App. 116, 812 S.E.2d 146 (2018). Thereafter, the Supreme Court of Georgia vacated our decision, and remanded the case with direction for this Court to determine whether the evidence of record creates a factual dispute "as to whether Mercer invited Ms. Stofer to use its property for predominantly recreational purposes" such that it was entitled to immunity. (Punctuation omitted.) Stofer , 306 Ga. at 203-204 (6), 830 S.E.2d 169. Although the facts of the case are indeed tragic, upon reconsideration, we nevertheless must reverse the trial court’s denial of Mercer’s motion for summary judgment.

"On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." (Citation and punctuation omitted.) Reese v. Provident Funding Assoc., 327 Ga. App. 266, 758 S.E.2d 329 (2014).

So viewed, the evidence, as more fully set out in our prior opinion, shows that Ms. Stofer and her sister attended a free concert, as part of Mercer’s "Second Sunday" concert series, at a public park in Macon. As she was leaving the concert, Ms. Stofer fell backward on a staircase with no handrails, sustaining serious head injuries

that ultimately led to her death.

The park was owned by the county, but Mercer had a permit to use it for the concert series. The free concert series was promoted and produced by Mercer’s College Hill Alliance ("the Alliance"), a grant-funded division of Mercer with a stated mission of fostering revitalization and business growth in the neighborhood surrounding the campus. The Alliance’s aim was to attract investment in, and to create other potential revenue streams for, the university.

To improve the experience for the concertgoers, Mercer invited vendors to sell food and beverages. Mercer did not charge the vendors for their inclusion in the event, and the vendors kept any profits they made. Mercer procured sponsorships for overall marketing purposes and to defray the costs involved in promoting and producing the concert series. Sponsors were permitted to erect tents displaying their logos, and to otherwise promote their businesses, but did not sell merchandise. And, the Alliance gave away branded items to promote its other events.

1. Mercer contends that, under the Supreme Court’s recent guidance, there is no factual dispute that the purpose for staging the free concert was predominantly recreational, and therefore, it was entitled to immunity under the RPA. We agree.

The RPA provides that, subject to certain exceptions not relevant here, "an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes." OCGA § 51-3-22.¹

The Act further provides:

Except as specifically recognized by or provided in Code Section 51-3-25, 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. The Act defines the term, "recreational purpose," by listing a noninclusive group of activities. See OCGA § 51-3-21 (4).

In Stofer , 306 Ga. at 196 (2), 830 S.E.2d 169, our Supreme Court clarified the relevant analysis under the RPA. As the Court explained, in order to establish whether a landowner maintained the requisite recreational purpose, and is therefore entitled to immunity under the RPA,

the true scope and nature of the landowner’s invitation to use its property must be determined, and this determination properly is informed by two related considerations: (1) the nature of the activity that constitutes the use of the property in which people have been invited to engage, and (2) the nature of the property that people have been invited to use. In other words, the first asks whether the activity in which the public was invited to engage was of a kind that qualifies as recreational under the Act, and the second asks whether at the relevant time the property was of a sort that is used primarily for recreational purposes or primarily for commercial activity.

(Emphasis supplied and in original.) Stofer , 306 Ga. at 196 (2), 830 S.E.2d 169. Importantly, a landowner’s subjective profit motivations are irrelevant to the analysis. Id. at 200 (3), 830 S.E.2d 169 ("It is not the law – and we have never said that it was – that inviting people to use recreational property for recreational activities could still fail to qualify for immunity under the Act solely because the landowner had some sort of subjective profit motive in doing so.").

Here, the plaintiffs do not dispute that the nature of the activity, attending a free concert, was recreational.² See Stofer , 306 Ga. 203 (6), 830 S.E.2d 169. With regard to the nature of the property at the time of the concert, the plaintiffs point to the availability of food and beverages for purchase, the presence of the sponsors’ tents and logos, and to the branding opportunity afforded to the Alliance, contending that this evidence is sufficient to raise a question of fact as to whether Mercer’s purpose in staging the concert series was predominantly commercial.

We are not convinced. As our Supreme Court made clear, the property owner’s subjective intent is not a proper consideration; nor is the fact that the owner might have obtained an indirect financial benefit. Stofer , 306 Ga. at 199-201 (3) - (4), 830 S.E.2d 169. The relevant question is whether "the landowner actually invited people onto the property (directly or indirectly) to do something ‘recreational,’ or whether people have instead been allowed onto the property to engage in commercial activity." (Emphasis omitted.) Id. at 196 (2), 830 S.E.2d 169. Viewed in this light, the evidence in the record shows that both the nature of the activity and the nature of the property at the time of the concert were purely recreational.³

The park itself is owned by the county and open to the public without limitation during the concerts. The concertgoers were not required to buy food and drink; rather the event website encouraged them to bring picnics. Also, there is no evidence that the concert series was organized for the benefit of the vendors or the sponsors; instead, the sponsors’ donations were required to assist in offsetting the expenses of staging the concert series. See Matheson v. Ga. Dept. of Transp ., 280 Ga. App. 192, 195 (1) (b), 633 S.E.2d 569 (2006).

To the extent that the concert series may have increased Mercer’s name recognition and good will in the community, potential student interest in attending the university, or the likelihood that it would receive future grant funding, such speculative considerations and subjective motivations are not relevant to our analysis. Stofer , 306 Ga. at 201-202 (4), 830 S.E.2d 169 (disapproving prior case law "that could be read to require consideration of evidence that a landowner was motivated by the possibility that it would obtain indirect financial benefits from allowing the public to use its land in determining whether that invitation was for ‘recreational purposes’ under the Act.") (emphasis in...