Statue from Atlanta's Oakland Cemetery

The Ghost of Maud Rich: Sovereign Immunity for Public Cemeteries

Now that Halloween season is in full swing, I felt inspired to add a little supernatural flair to today’s PreserveLaw post. The following post depicts the real life tale of wealthy widow Maud Rich and her legal battle (City of Atlanta v. Rich) over her husband’s grave at Atlanta’s Oakland Cemetery in 1940. While I doubt you will hear this haunting account during the Capturing the Spirit of Oakland Halloween tour, read on to learn why the ghost of Maud Rich still abides in our mortal realm.

Sovereign Immunity

Because Atlanta v. Rich is all about sovereign immunity, we need to take a few steps back to define this concept before we dive into the facts of the case. The general common law doctrine of sovereign immunity is that a government is immune from being sued without its consent. While Congress has waived most of the federal government’s sovereign immunity under the Federal Tort Claims Act, individual states have the power to retain or waive sovereign immunity for themselves and their subsidiaries (i.e. cities and counties).

Since this is a Georgia case, let’s examine the Georgia laws concerning sovereign immunity for municipalities. The Georgia Constitution authorizes the state legislature to “waive the immunity of counties, municipalities, and school districts by law.” Ga. Const. art. IX, § 2, ¶ IX. Shortly after the Constitution was ratified, the General Assembly declared that municipalities

shall not be liable for failure to perform or for errors in performing their legislative or judicial powers. For neglect to perform or improper or unskillful performance of their ministerial duties, they shall be liable.

Ga. Code Ann. § 36-33-1(b). To put it more plainly, a Georgia municipality may not be sued for negligently performing governmental functions, but may be sued for negligently performing ministerial functions (i.e. business-like activities). Or from a city’s perspective: governmental = good, ministerial = bad. As you might expect, a municipality typically argues that the duty in question is governmental (i.e. sovereign immunity is not waived), while the plaintiff contends that the duty performed is ministerial (i.e. sovereign immunity is waived).

[NOTE: the common law governmental-ministerial (a.k.a. governmental-proprietary) analysis, used in Georgia and a minority of states, is not to be confused with the less protective discretionary-ministerial analysis, used in most states, that abrogates the common law doctrine of sovereign immunity.]

This governmental-ministerial dichotomy is identical to the law followed in Maud’s time. So let’s look into her case to learn more about Georgia’s take on sovereign immunity.

City of Atlanta v. Rich

In 1928, Maud’s husband, Morris Rich of Rich’s department store, died and was interred at Oakland Cemetery in Atlanta, Georgia. Maud placed a white marble slab on Morris’s grave at a cost of $65. Unfortunately, this valuable marble slab was destroyed in 1939 due to the negligence of city workers. While four workers were moving a monument from a nearby lot, “the headstone tumbled from the base and fell upon the marble slab on the plaintiff’s lot, crushing and cracking it into twelve different pieces.” City of Atlanta v. Rich, 64 Ga. App. 193, 12 S.E.2d 436, 437 (1940). Maud brought a cause of action for negligence against the City of Atlanta for the cost of the $65 marble slab. Although $65 may seem like a paltry sum, that amount in 1939 is equivalent to about $1,093 in 2013 dollars (see BLS inflation calculator).

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Predictably, the key issue in Rich was whether the City of Atlanta “was engaged in the performance of a governmental or a ministerial function” when the city workers were moving the monument. Atlanta argued that Oakland Cemetery, like a park, was maintained “primarily for the use of the public, intended as a place of resort for pleasure and promotion of health of the public at large.” As a result, the city argued, Atlanta had sovereign immunity because the maintenance of the cemetery is a governmental or public function. Conversely, Maud argued that Atlanta waived its sovereign immunity because the cemetery’s primary function was actually selling and maintaining burial plots, which is a ministerial or business-like function.

Fortunately for Maud, her argument won the day. The court explained that although Oakland Cemetery served both governmental functions (as a public park) and ministerial functions (by selling burial plots),

the function of operating the cemetery primarily for the public at large becomes the lesser function (or use) which is merged into the greater function of operating it for its pay members, and the sum total of its operation assumes the manner and form of an entity the operation of which is primarily only for those individuals who buy lots. We do not think it should be said that it is maintained primarily for the use of the public as a whole….[I]t seems to us that the primary object of the conducting of the cemetery was the sale of lots (and the subsequent charge of the upkeep thereof), and that the conduct of the servants of the city was not in respect to the duties devolved upon them by virtue of the sovereign or governmental function of the city, but were in the performance of a ministerial duty.

The City of Atlanta compensated Maud for the marble slab and she died only seven years later at the ripe old age of 89. Yet, her spirit still haunts public parks and cemeteries all across Georgia, at least in the form of case law precedent.

The Ghost of Maud Rich

Over fifty years later, in Mayor & Aldermen of the City of Savannah v. Radford (1991), the Supreme Court of Georgia affirmed the validity of the appellate court’s holding in Rich and clarified that the maintenance of public cemeteries is not automatically a governmental or a ministerial function. Rather, to categorize a cemetery’s function for sovereign immunity purposes, we must look to the primary purposes of the cemetery and its intended beneficiaries. In the case of Savannah’s famous cemetery, the Supreme Court reasoned:

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 and 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.

The Court went on to mirror the language used by the Court of Appeals fifty years earlier in the Rich case to explain its holding:

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.

The Court’s ruling in Radford raises the question of whether Oakland Cemetery today is serving primarily cultural, historical, and recreational purposes, or is it still primarily a burial ground for paying members of the public? Although courts have yet to make this determination, it would be easy to make an argument that Oakland is now primarily for cultural, historical, and recreational purposes. Thus, if Maud’s marble slab had been destroyed in our day, she would have been out of luck.

Colorized photograph of Morris & Maud Rich, with grandson Richard H. Rich, circa 1911. Credit: Breman Museum.

Colorized photograph of Morris & Maud Rich, with grandson Richard H. Rich, circa 1911. Credit: Breman Museum.

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Side Bar: I can’t help but wonder if the ruling in Rich may have been tipped in Atlanta’s favor if only its attorneys had more of a grasp on the theory behind the rural cemetery movement, which includes Oakland Cemetery. In the mid 19th century, there were no public parks and rural cemeteries were conceived and designed to fill that void—they were always intended for public use, not just for burials. So, it is possible that if Atlanta had used this information to argue that Oakland is, and always has been, primarily a public park, then Mrs. Rich may not have prevailed.

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Conclusion

Unlike the majority of states, Georgia still follows the old common law governmental-ministerial distinction for sovereign immunity analysis. This means that municipalities can only be sued in negligence when they are performing a ministerial or business-like function. For municipalities that own cemeteries, it would be prudent to design and operate cemeteries more like public parks. For members of the public enjoying these park-like cemeteries, be extra careful—you will have no civil recourse when you fall into that freshly dug grave that Gary Gravedigger forgot to cover up. And in a twisted way, you will have Maud Rich to thank for that.

Although you may not believe in ectoplasmic residue or supernatural specters, there is no doubt that, as a matter of law, the ghost of Maud Rich lives on to this day.


Clint Tankersley is a Georgia attorney specializing in cultural heritage law. Read my bio here.

2 thoughts on “The Ghost of Maud Rich: Sovereign Immunity for Public Cemeteries

  1. Wright Dempsey

    Clint, your sidebar note hit the nail on the head. That being said, the counterpoint for consideration is that there are probably more people still being buried today in Oakland than in Bonaventure–just my supposition. Interesting article.

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