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Mercer University v. Stofer

Court of Appeals of Georgia, Fourth Division

March 12, 2018

STOFER et al.

          DILLARD, C. J., MCFADDEN, P. J. AND RAY, J.

          RAY, JUDGE.

         Mercer University filed this interlocutory appeal from the trial court's partial denial of its motion for summary judgment in a wrongful death case related to a slip-and-fall that occurred during a free concert hosted by the university.[1] Mercer contends that the trial court erred in determining that a jury question existed as to the facts underlying whether the Recreational Property Act, OCGA § 51-3-20 et seq. (the "RPA"), should apply to immunize Mercer from liability. Mercer also argues that the trial court erred in deciding that fact questions remained on the issue of traditional premises liability. For the reasons that follow, we affirm the trial court's partial denial of summary judgment to Mercer.

         "In an appeal from the grant or denial of a motion for summary judgment, we apply a de novo standard of review, viewing the evidence, including any reasonable conclusions and inferences that it supports, in the light most favorable to the nonmovant." (Citation and punctuation omitted.) Henderson v. St. Paul Baptist Church, 328 Ga.App. 123, 123 (761 S.E.2d 533) (2014). Thus, we view the evidence in the light most favorable to the plaintiffs-appellees, John Stofer, as executor of his mother Sally Stofer's estate, and John Stofer and Susan Stofer Chandler, individually, as Sally Stofer's surviving children (collectively, "the Stofers").

         The evidence shows that Sally Stofer and her sister, Carol Denton, were attending a free concert 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. Mercer paid no rent to use the park for the concert at issue, although Mercer did pay for security and maintain liability insurance. The concert was part of Mercer's "Second Sunday" concert series, which was planned, promoted and hosted by Mercer's College Hill Alliance, a division of Mercer.

         When Stofer and Denton arrived, they parked at street level above Washington Park and descended a concrete stairway to gain entrance to the venue. Denton deposed that they searched for a way to enter the park and chose the stairway at issue because it had a handrail at the top where they began their descent. After progressing partway down the steps, Stofer and Denton exited the stairs and found a place to sit on the grassy hill. Although there were vendors at the park selling food and drink, Stofer did not purchase anything.

         When they decided to leave the concert, Stofer and Denton used the same set of steps they had used to enter the venue. They began to ascend those steps at the bottom, below the halfway point where they had left the steps when they first arrived at the concert. They had not previously traversed this lower part of the stairway, and Denton deposed that it lacked a handrail. However, there was no other means of returning to their car at the top of the stairs because none of the other stairways at the park had handrails and the grassy hill leading up to their car was too slippery and hard to ascend. Denton ascended the stairs ahead of Stofer, and when she turned to check on her sister, she saw Stofer lose her balance, fall backward, and hit her head on a part of the stairs that had no handrail. The impact caused profuse bleeding. Stofer apparently never regained full consciousness. She fell into a coma and eventually was removed from life support, pursuant to her wishes in an advance directive. She died on August 28, 2014.

         Stofer's children and her estate filed this wrongful death action asserting, inter alia, claims of negligence and premises liability. Mercer moved for summary judgment, arguing, inter alia, that it is immune from liability under the RPA and that Stofer cannot show that the university had superior knowledge of the hazard. The trial court denied Mercer's motion as to immunity under the RPA and as to premises liability, and Mercer filed this interlocutory appeal.

         1. Mercer contends that the trial court erred in ruling that the RPA did not bar the Stofers' claims, arguing that the event was solely recreational.

         "The 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." OCGA § 51-3-20. Under the RPA, except as provided in OCGA § 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 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. Further, except as provided in OCGA § 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.[2]

         Here, it is undisputed that Stofer and her sister were not charged to attend the concert. In cases where there is no dispute over whether the activity at issue was purely recreational, this fact would end our inquiry. See Mayor and Aldermen of Garden City v. Harris, ___ Ga.___ *2 (Case No. S17G0692, decided January 29, 2018) (hereinafter "Harris II") ("a natural reading of the plain language of OCGA § 51-3-23 indicates that a landowner remains free from potential liability to any individual person . . . who has been allowed to use the property for recreational purposes free of charge") (emphasis supplied). The case which Harris II reversed, Mayor and Aldermen of the City of Garden City v. Harris, 339 Ga.App. 452, 454 (793 S.E.2d 628) (2016) (hereinafter "Harris I"), makes clear that the parties agreed that the spectators, including the plaintiff, were using the stadium at issue for recreational purposes within the meaning of the RPA. However, neither Harris I nor Harris II addressed any dispute regarding the defendant's purpose in offering the venue, or examined whether issues of mixed recreational and commercial use existed, as these matters appear not to have been squarely presented to the Courts.

         In the instant case, the primary point of dispute between the parties is Mercer's purpose in inviting the public to the free concert, as the plaintiffs contend there was a mixed commercial and recreational purposes of the venue. While Mercer contends that its purpose in inviting the public to the free concert was solely recreational, the Stofers counter that because, among other things, private vendors sold food and alcohol at a profit and Mercer derived revenue from corporate sponsorships, "Mercer's purpose in holding this concert series was to promote its private interests, as well as the commercial interests of businesses abutting its campus."[3] (Emphasis supplied.)

         In cases such as the one before us where the defendant's purpose for inviting the public to the event free of charge is in dispute, the Supreme Court has held over the course of approximately 50 years that it is not just the plaintiff's purpose in using the venue, but also the defendant's purpose in offering it that must be considered in determining the applicability of the RPA.

The important criterion is the purpose for which the public is permitted on the property. If the public is invited to further the business interests of the owner - e. g., for sales of food, merchandise, services, etc. - the RPA will not shield the owner from liability even though the public receives some recreation as a side benefit.

Cendeno v. Lockwood, 250 Ga. 799, 801 (2) (301 S.E.2d 265) (1983), overruled on other grounds by Atlanta Committee for the Olympic Games, Inc. v. Hawthorne, 278 Ga. 116, 118 (1), n. 3 (598 S.E.2d 471) (2004). Compare Bourn v. Herring, 225 Ga. 67, 67-68 (1) (a) (166 S.E.2d 89) (1969) (even where property has been made available to the public "for advertising purposes and to promote the sale of the [property owner's] products" it still may fall within RPA protections).

         As the Supreme Court more recently determined in Anderson v. Atlanta Committee for the Olympic Games, Inc., 273 Ga. 113 (537 S.E.2d 345) (2000), [4] in cases where the purposes are a mix of recreational and commercial, "an owner's profit motive does not necessarily create a reasonable inference that the event is commercial rather than recreational in nature. Rather, it is the purpose for which the owner earned the profits." (Emphasis supplied.) Id. at 116 (2).

         In Anderson, the Supreme Court adopted a balancing test which required that "all social and economic aspects of the activity be examined. Relevant considerations of this question include, without limitation, the intrinsic nature of the activity, the type of service or commodity offered to the public, and the activity's purpose and consequence." (Citation omitted; emphasis in original.) Id. at 117 (2). This balancing test is to be applied by the fact-finder. Hawthorne, supra at 117. Stated in more detail,

whether the RPA applies to limit the liability of the owner of a certain property at a certain time is a question of law for the trial court. However, determination of the purpose for which the public was permitted on the property involves the examination and weighing of evidence in those instances in which there exist both commercial and recreational aspects to the property at issue. Where that evidence conflicts regarding the purpose of the property, it is for the fact finder to resolve the conflict.

(Citations and punctuation omitted.) Id. at 117 (1).

         Here, the record shows that Mercer advertised the concert series on the College Hill Alliance web site by promising food for purchase, a live band, and a cash bar. Mercer's expense estimates for the concert series indicate that it paid for musicians, professional sound technicians, a stage canopy, portable toilets, and professional marketing. Several restaurants were on-site at the July 2014 concert at issue, selling food and alcohol. They did not pay Mercer, nor did Mercer pay them, to operate at the concert. The program coordinator for College Hill Alliance, J. R. Olive, deposed that the restaurants sold food and alcohol at a profit. Concert-goers were not required to buy food and drinks, and were encouraged to bring their own picnics. Although the College Hill Alliance was completely grant-funded at the time of the concert, the expenses of the multi-year concert series had, at certain points in time, been defrayed by corporate contributions, grants, a sponsorship from State Bank & Trust, as well as sponsorships from a law firm and other local businesses. During the concert at issue, earlier sponsors' advertisements appeared on banners and tents.

         Part of the stated mission of Mercer's College Hill Alliance is to foster neighborhood revitalization, although Olive deposed that the concert series also benefitted Mercer by improving the College Hill Corridor, making the university more attractive to potential students, and providing branding opportunities. Specifically, in a grant proposal form Mercer filled out when seeking $2.2 million in grant money from the Knight Foundation for the College Hill Alliance, the university wrote that

As a private institution, Mercer has the capacity for direct and effective interaction with other local community economic development resources[] . . . [which could create] the potential for additional revenue streams for the University. The Alliance will encourage and support efforts at Mercer to utilize the ...

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