Mercer Univ. v. Stofer

• Decision Date: 24 June 2019
• Docket Number: S18G1022
• Citation: 306 Ga. 191,830 S.E.2d 169
• Parties: MERCER UNIVERSITY v. STOFER et al.
• Court: Georgia Supreme Court

306 Ga. 191

830 S.E.2d 169

MERCER UNIVERSITY

v.STOFER et al.

S18G1022

Supreme Court of Georgia.

Decided: June 24, 2019

Alan J. Payne, Brian David Trulock, BENDIN SUMRALL & LADNER, LLC, One Midtown Plaza, Suite 800, 1360 Peachtree Street NE, Atlanta, Georgia 30309, for Appellant.

Ranse Murphy Partin, Davis Shirley Popper, CONLEY GRIGGS PARTIN LLP, 4200 Northside Parkway NW, Bldg 1, Suite 300, Atlanta, Georgia 30327, for Appellee.

Mathew G. Nasrallah, ROBERTSON, BODOH & NASRALLAH, LLP, 990 Cobb Parkway North, Suite 205A, Marietta, Georgia 30062-2410, Allison Elmore Thornton, GEORGIA TRIAL LAWYERS ASSOCIATION, 3350 Centennial Tower, 101 Marietta Street, Atlanta, Georgia 30303, for Amicus Appellee.

Peterson, Justice.

The Recreational Property Act shields from liability a property owner "who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes[.]" OCGA § 51-3-23. The question in this case is what that phrase means. After careful consideration of the statutory text and a thorough review of our case law, we conclude that whether immunity is available under this provision requires a determination of the true scope and nature of the landowner’s invitation¹ to use its property, 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.

Here, the plaintiffs did not dispute that the activity in question — attending a free, outdoor concert in a public park that was hosted by the defendant, Mercer University — was generally "recreational" within the meaning of the Act. But the trial court concluded, and the Court of Appeals agreed, that the defendant was not entitled to summary judgment on its claim of immunity under the Act, given evidence that Mercer hosted the concert because it might (at least indirectly) benefit financially from the event. In arriving at this conclusion, the Court of Appeals appears to have been led astray by language in our most recent relevant decision that was inconsistent with our previous case law. First, the Court of Appeals relied on evidence about Mercer’s subjective motivations in hosting the concert that may have had nothing to do with the nature of the activity for which people were invited to use the property or the nature of the property in question. Second, at least some of the evidence cited by the Court of Appeals appears to be that of a merely speculative, indirect benefit that Mercer might receive as a result of the concert in question. Clarifying today that such considerations are generally improper, we vacate the Court of Appeals’s decision and remand the case with direction that the court revisit its analysis consistent with the standard that we clarify here.

1. Background.

Mercer seeks immunity from liability for claims by the estate and family of Sally Stofer, who was fatally injured when she fell at a free concert hosted by the university at Washington Park in Macon in July 2014. The park is owned by Macon-Bibb County, but Mercer had a permit to use the park for its concert series. The concert series was planned, promoted, and hosted by Mercer’s College Hill Alliance, a division of Mercer whose stated mission is to foster neighborhood revitalization for Macon’s College Hill Corridor. The Alliance’s program director testified that the concerts also benefitted Mercer by making the university more attractive to potential students and by providing branding opportunities. And in a grant proposal form that Mercer completed in seeking funding for the Alliance, Mercer reported that the university had "the capacity for direct and effective interaction with other local community economic development resources" which, "[p]roperly engaged, ... could attract and create significant technological investment and collaboration, as well as the potential for additional revenue streams" to the university. Vendors at the park were selling food and drink when Ms. Stofer attended the concert, but she did not buy anything.

Ms. Stofer’s children and her estate filed this wrongful death action against Mercer, asserting negligence claims. Mercer moved for summary judgment, arguing in part that it is immune from liability under the Act because it had invited Ms. Stofer and other members of the public to Washington Park for recreational purposes. The plaintiffs did not dispute that Ms. Stofer was engaging in a "recreational" activity while attending the concert on the property. But the plaintiffs opposed Mercer’s claim of immunity on the basis that there was at least a jury question as to the nature of Mercer’s "purpose" in hosting the concert, arguing that the purpose for which the owner invites the public onto its land "has to be purely recreational, purely noncommercial."²

The trial court granted Mercer’s motion as to some claims but denied its motion as to its claim of immunity under the Act. The Court of Appeals affirmed. See Mercer Univ. v. Stofer , 345 Ga. App. 116, 812 S.E.2d 146 (2018). The Court of Appeals concluded that Mercer was not entitled to summary judgment based on immunity under the Act, because "fact questions remain as to Mercer’s purpose in inviting the public to attend the free concert." Id. at 122 (1), 812 S.E.2d 146. In particular, the Court of Appeals cited evidence that Mercer stood to gain from the concert in the form of "branding opportunities" and making the university more attractive to potential students, noting Mercer’s statement in its grant application that funding for events such as the concert series would create "the potential for additional revenue streams." Id. at 121-122 (1), 812 S.E.2d 146. And the court cited "the concert series’ earlier funding through sponsorships" and "the current use of sponsors’ banners and advertisements." Id. at 122 (1), 812 S.E.2d 146. In a concurrence dubitante, Chief Judge Dillard joined the panel’s decision as compelled by a faithful application of this Court’s precedent, but argued that subjecting Mercer to liability did not comport with the plain meaning or codified purpose of the Act. Id. at 127-130, 812 S.E.2d 146 (Dillard, C.J., concurring dubitante).

We granted Mercer’s petition for certiorari and directed the parties to identify the correct test for determining whether a property owner who permits others to use its property for recreational purposes is entitled to immunity under the Act, as well as to address whether that matter is a question of law for the court or a question of fact for the jury. Clarifying the standard for determining whether immunity is available under the Act, and reaffirming that this question sometimes, but not always, presents a dispute of material fact requiring resolution by a jury, we vacate the Court of Appeals’s decision so that the court may perform its analysis anew in the light of what we say here.

2. Our prior case law regarding the meaning of the language in question can be distilled to two areas of focus in determining the scope and nature of a landowner’s invitation to use property: the nature of the activity that constitutes the use of the property that people have been invited to engage in, and the nature of the property that people have been invited to use.

In our case law in this area, we have struggled to apply an Act regarding the recreational use of property to cases in which the use of property includes some aspects of recreational use mixed with some commercial use. Unlike some other states with similar laws,³ Georgia’s Act provides little textual guidance to such an undertaking. And the Act provides no indication that the answer is at either extreme — i.e., that any recreational use confers immunity, notwithstanding the amount of accompanying commercial use, or that any associated commercial use, however minimal, deprives the landowner of immunity even when the invitation is predominantly for recreational activities.

With certain exceptions, the Act gives immunity to those who, without charge, allow the public to use their property for recreational purposes. The Act provides:

Except as specifically recognized by or provided in Code Section 51-3-25,^{[4 ]} an owner of land^{[5 ]} 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. The Act also 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 plaintiffs opposed Mercer’s motion for summary judgment on the ground that "a jury question exists as to whether the concert was for a recreational purpose[,]" pointing to evidence that Mercer had at least an indirect financial interest in hosting the concert.

The issue here, then, is the meaning of the phrase "invites or permits without charge any person to use the property for recreational purposes[.]" Although the word "purpose" often refers to a person’s subjective motivation for doing something (and, indeed, some decisions interpreting the Act have used the statutory word that way), that is not the sense in which the Act uses the word in the phrase "recreational purpose." Instead, the Act defines "recreational purpose" only by way of a list of examples of activities in which people might engage, providing that the term

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