Mercer Univ. v. Stofer

830 S.E.2d 169, 306 Ga. 191
CourtSupreme Court of Georgia
DecidedJune 24, 2019
DocketS18G1022
StatusPublished
Cited by12 cases

This text of 830 S.E.2d 169 (Mercer Univ. v. Stofer) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mercer Univ. v. Stofer, 830 S.E.2d 169, 306 Ga. 191 (Ga. 2019).

Opinion

Peterson, Justice.

**191The 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 *171nature 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 **192language 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 **193invites the public onto its land "has to be purely recreational, purely noncommercial."2 *172The 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.

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MERCER UNIVERSITY v. STOFER
306 Ga. 191 (Supreme Court of Georgia, 2019)

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Bluebook (online)
830 S.E.2d 169, 306 Ga. 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercer-univ-v-stofer-ga-2019.