Nye v. Union Camp Corp.

• Decision Date: 30 October 1987
• Docket Number: Civ. A. No. 286-184.
• Citation: 677 F. Supp. 1220
• Parties: Richard Alton NYE, Plaintiff, v. UNION CAMP CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of Georgia

677 F. Supp. 1220

Richard Alton NYE, Plaintiff, v. UNION CAMP CORPORATION, Defendant.

Civ. A. No. 286-184.

United States District Court, S.D. Georgia, Brunswick Division.

October 30, 1987.

Robert W. Harrison, Jr., Folkston, Ga., Benjamin Smith, Jr., Waycross, Ga., for plaintiff.

Frank W. Seiler, Savannah, Ga., for defendant.

ORDER

ALAIMO, Chief Judge.

In this negligence action, plaintiff, Richard Nye, seeks to hold defendant, Union Camp Corporation ("Union Camp"), liable for the damages he incurred when he went for a midnight swim in a lake on defendant's property.

Because Nye was at most a bare licensee, Union Camp owed to Nye only a limited duty of care, and there is no evidence suggesting a breach of that limited duty. Consequently, summary judgment in favor of Union Camp is appropriate under Rule 56 of the Federal Rules of Civil Procedure.

FACTS

Around midnight of September 14-15, 1984, Richard Nye, 22 years old at the time, drove with a friend, Jimmy Keyser, to a lake located on property owned by Union Camp in Glynn County, Georgia. Between eight and twelve other people were at the lake when the men arrived. The group's four cars were parked at the edge of the lake with their lights shining out over the water.

About twenty minutes after he arrived, Nye decided to go for a swim. He ran down the beach and into the lake to approximately thigh depth and then made a shallow dive into the water. He struck his head on a submerged object (which he now believes to have been a tree stump) and was knocked unconscious.

It was Nye's first visit to the lake, and he admits that he did not have express permission to enter the property. However, he testified that he believed that he did not need permission and that the lake was regularly used by the public for recreational purposes.

There is some dispute as to the public nature of the lake and its surrounding property. The lake was located in the Satilla Forest property owned by Union Camp. The lake was created as a result of soil removal used in a land-fill project and, at the time, the lake covered approximately 63 acres of surface land.

Access to the lake was via a dirt road which ran directly off of a well-traveled public highway. Nye contends that the access road was wide enough for cars to pass and that the road had no cable, chain, trench or other barrier preventing access to the lake by the public. Nye has introduced testimony by Keyser and others stating that the public used the lake and surrounding property for swimming, boating, waterskiing, fishing, scuba diving and camping. According to plaintiff, a boat ramp was in place and a ski jump was anchored in the lake.

Defendant admits receiving payment for the fill removed from its property but asserts that the actual removal of the soil, and consequently the creation of the lake, was the result of the activities of others. While defendant's agents admit knowing that the lake was used by the public, they have made no statements regarding the extent of that use. They aver that the property was regularly posted with no-trespassing signs and stress that Nye had no express permission to enter the property. They also aver that no Union Camp employees had actual knowledge of the presence of the group of people at the time in question.

Union Camp contends that these facts establish that Nye was a trespasser, or at most a bare licensee, and consequently was owed only a limited duty. Defendant also argues that Georgia's Recreational Property Act, O.C.G.A. §§ 51-3-20 et seq., is inapplicable or, if applicable, does not enhance Union Camp's duty to Nye.

DISCUSSION

Plaintiff filed this suit in Georgia Superior Court, and defendant removed the action to this Court based on diversity of citizenship. Hence, Georgia tort law governs the merits of this claim, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Goodwin v. George Fischer Foundry Systems, Inc., 769 F.2d 708, 711 (11th Cir.1985), and federal law governs the procedural aspects of this summary judgment motion. Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed. 2d 8 (1960).

Summary judgment is appropriate when no genuine issue of material fact exists, such that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Summary judgment requires that the movant establish the absence of genuine material issues of fact, Adickes v. S.H. Kress & Co., 398 U.S. 144, 153, 90 S.Ct. 1598, 1606, 26 L.Ed.2d 142, 152 (1970), and is also proper "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265, 273 (1986).

Conflicting factual contentions are not to be balanced by the Court at this time; rather, all disputes are resolved in favor of the non-moving party. Carlin Communication Inc. v. Southern Bell Tel. & Tel. Co., 802 F.2d 1352, 1356 (11th Cir.1986). Additionally, all reasonable inferences arising from the facts are to be made in favor of the non-moving party. Id.; see also Tippens v. Celotex Corp., 805 F.2d 949 (11th Cir.1986). However, an inference based on speculation and conjecture is not reasonable. Blackston v. Shook & Fletcher Insulation C., 764 F.2d 1480, 1481 (11th Cir.1985).

(A) Negligence of Owner/Occupiers of Land

This is not an extraordinary negligence action; an injured person is seeking damages due to the acts or omissions of an owner/occupier of land. As in all negligence actions, the plaintiff must show that the defendant had a legal duty to conform to a standard of care, a breach of that duty, cause and damages. Lee Street Auto Sales v. Warren, 102 Ga.App. 345, 347, 116 S.E.2d 243 (1960).

It is often said that the issue of breach in a negligence action (i.e., whether a defendant fell below the standard of care owed) is almost invariably a jury question. Gross v. Southern Railway Co., 414 F.2d 292, 296 (5th Cir.1969); Garrett v. Royal Bros. Co., 225 Ga. 533, 535, 170 S.E.2d 294 (1969). Georgia decisions have held, however, that summary judgment is proper in situations where the defendant's duty is very limited. E.g., Epps v. Chattahoochee Brick Co., 140 Ga.App. 426, 231 S.E.2d 443 (1976); Higginbotham v. Winborn, 135 Ga.App. 753, 218 S.E.2d 917 (1975) (granting summary judgment for defendant landowners). But see MacKenna v. Jordon, 123 Ga.App. 801, 182 S.E.2d 550 (1971); Bohn v. Beasley, 51 Ga.App. 341, 180 S.E. 656 (1935).

Under Georgia law, the standard of care encompassed in the duty of an owner/occupier of land depends upon the status of the plaintiff and the nature of the activities taking place on the land. See O.C.G.A. § 51-3-1 (duty owed to invitees); O.C.G.A. § 51-3-2 (duty owed to licensees); Barber v. Steele, 133 Ga.App. 290, 292, 211 S.E.2d 133 (1974) (duty owed to trespassers); and O.C.G.A. § 51-3-20 et seq. (duty owed to persons when the land is opened for recreational purposes).

(B) Status of Plaintiff

Nye was not an invitee of Union Camp. An invitee is one who comes onto another's land with express or implied invitation. O.C.G.A. § 51-3-1. The invitation must be connected to the business of the occupant. Higginbotham, supra 135 Ga.App. at 754, 218 S.E.2d 917. As the court quotes:

"The general test as to whether a person is an invitee or a licensee is whether the injured person at the time of the injury had present business relations with the owner of the premises which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience, or on business with others than the owner of the premises. In the absence of some relation which inures to the benefit of the two, or to that of the owner, no invitation may be implied, and the injured person must be regarded as a licensee."

Id. at 755, 218 S.E.2d 917, quoting Cook v. Southern RR. Co., 53 Ga.App. 723, 725-26, 187 S.E. 274 (1936). This mutuality-of-interests test has been applied uniformly by the Georgia courts. E.g., Atkins v. Tri-Cities Steel, Inc., 166 Ga.App. 349, 304 S.E.2d 409 (1983); McCall v. McCallie, 48 Ga.App. 99, 171 S.E. 843 (1933).

Plaintiff forcefully argues that he had implied permission to enter the property. However, implied permission is not the same as business invitation. Any such implied permission does not enhance Nye's status to that of an invitee.

The Atkins decision, which held that a plaintiff's status as an invitee or licensee was a jury question, is not controlling on these facts. In Atkins, there were questions regarding both a possible landlord/tenant relationship and a possible benefit of providing security to the defendant's property conferred on the defendant. In this case, there is no evidence suggesting that any benefits were conferred on Union Camp by Nye's presence. Accordingly, it is appropriate for the Court to rule that Nye was, at most, a bare licensee at the time of the injury.

On the other hand, Nye's evidence regarding the public's access to and use of the lake, coupled with Union Camp's apparent acquiescence to that use, provide sufficient evidence that Nye had the requisite permission to enhance his status to that of a licensee. There is also conflicting evidence regarding the existence and sufficiency of no-trespassing signs, which appears to be a determinative factor for applying the recreational-use statute. See Georgia Power Co. v. McGruder, 229 Ga. 811, 194 S.E.2d 440 (1972). However, neither implied permission nor recreational use enhances Union Camp's duties owed to Nye beyond those owed to a licensee.

The duty owed to a licensee is at least as great as, if not greater than, the duties owed to trespassers and recreational users. See Housing Authority of Atlanta v. Famble, 170 Ga.App. 509, 512-13, 317 S.E.2d 853 (1984), and Crosby v. Savannah Elec. & Power Co., 114 Ga.App. 193, 198, 150 S.E.2d 563 (1966) ...