Mayor of Savannah v. Radford

Fletcher, Justice.

Radford brought suit against defendants/appellants arising out of an incident alleged to have occurred during the burial of her deceased husband at Bonaventure Cemetery in Savannah. Radford’s complaint alleged that employees of the city who were working in the cemetery, within the scope of their employment, interfered with the burial of her husband in a wanton and wilful manner, thereby causing Radford embarrassment and humiliation. She sought damages from the city for intentional and negligent infliction of emotional distress.

The trial court granted defendants’ motion for summary judgment, holding that the claim was barred by the doctrine of governmental immunity because the city’s operation of Bonaventure Cemetery was a governmental function and that the damages being sought were punitive in nature and could not be recovered from the city.

Radford appealed and the Court of Appeals reversed. Adhering to and relying on its decision in City of Atlanta v. Rich, 64 Ga. App. 193 (12 SE2d 436) (1940), the Court of Appeals found that although the cemetery “is open to the public and used by the public at large for some recreational purposes . . . such ancillary uses do not alter the fact that at the time of the incident in question [the city’s] employees were performing a task related solely to the cemetery function of the facility,” which function was held in Rich to be ministerial. Radford v. Mayor &c. of Savannah, 194 Ga. App. 839 (392 SE2d 23) (1990).

1. We granted certiorari to consider whether operation of a cemetery, open to the public and operated at a loss by a municipality, is a governmental or ministerial function. We hold that operation of Bonaventure Cemetery by the City of Savannah is a governmental function. In reaching our holding, it is not necessary that we overrule Rich because the situation now presented by Bonaventure Cemetery is distinguishable from the situation presented by Oakland Cemetery in 1940.

In Rich, the Court of Appeals acknowledged that, in many instances, the operation of parks and public auditoriums by municipalities is considered a governmental function even though the parks and auditoriums may each provide both free and pay entertainments because both are still primarily operated for “the public as a whole, and not exclusively for pay members of the public.” Rich, supra at p. 196. The Rich court goes on to hold that:

The sphere of operation of such auditoriums [and] parks . . . includes primarily the general public, and thus the lesser function (pay entertainments) becomes merged with and into the greater function (free entertainments or other operations for the benefit of the public at large), and they together become an entity which is primarily used by the general public. Id.

Though such may not always have been the case, Bonaventure Cemetery is now being operated primarily for the benefit of the public at large rather than being operated primarily for the benefit of paying members of the public who purchase burial lots therein as was the case in 1940 with Oakland Cemetery in Rich. Bonaventure Cemetery is open to the general public, from 8:00 a.m. until 5:00 p.m. seven days a week, for use by all persons whether they own a burial lot or have relatives buried in the cemetery. It is a historic site of both local arid national interest; it is listed in tour guides and local touring companies conduct daily sightseeing tours of the cemetery. It is used regularly by the public at large for picnics on the bluff overlooking the adjacent Wilmington River, fishing in that river, relaxation and other recreational pursuits.

It is clear that Bonaventure Cemetery is now operated by the City of Savannah primarily for cultural, historical, and recreational purposes for the benefit of the general public and only secondarily for the use of the paying members of the public as a burial ground. In holding that the operation of Bonaventure Cemetery is a governmental function, we find that the operation of the cemetery as a burial ground for paying members of the public has become the lesser function of the cemetery and that such lesser function has merged with and into what has become the greater function of the cemetery property which is its operation for cultural, historical, and recreational purposes for the general public. As a result, the operation of this cemetery is now a governmental function.

2. Our ruling in Division 1 of this opinion makes it unnecessary for us to reach the question of whether damages under OCGA § 51-12-6 may be recovered from a municipality.

Judgment reversed.

All the Justices concur, except Smith, P. J., and Hunt, J., who dissent.