Opinion:Kamphaus v. Town of Granite, 2022 OK 46
Subject matter:Negligence
Date Decided:May 17, 2022
Trial Court:District Court of Greer County
Route to this Court:Order granting summary judgment to Town; Reversed by COCA, Division IV; Petition for Certiorari granted. 
Facts:A mother and son attended a funeral at a cemetery operated by the Town of Granite. The son was playing around some headstones when one fell on him resulting in injury.  The mother sued the Town for negligence in maintaining the cemetery on her and her son’s behalf. Town filed a motion for summary judgment. The district court granted Town’s motion, holding that Town had no duty to inspect or maintain the headstone because Town did not own the headstone. It also held that Town had no notice that the headstone at issue was unsafe or posed a danger. The district court further reasoned that even if Town owed mother and son a duty of care, Town was immune from liability pursuant to the GTCA. 
COCA reversed, holding that Town retained some aspect of ownership of the plot even after its transfer to the purchaser of the plot. COCA determined that the Legislature did not abrogate Town’s tort liability when it authorized Town to enact ordinances regulating the operation of the cemetery and Town could not delegate the duty imposed on it regarding dangerous defects in the cemetery.
Standard of Review:Summary judgment is reviewed de novo.
Analysis:To prove negligence, mother must prove that (1) Town owed son a duty to maintain or inspect the headstone at issue, (2) Town breached that duty, and (3) the breach caused son’s injuries. The threshold question in any negligence case is the existence of a duty, which is a question of law. 

Normally, a landowner has a duty to exercise reasonable care to keep a premises in a reasonably safe condition and to warn of conditions that are hidden dangers, traps, snares, or pitfalls. However, cemeteries are unique. A purchaser of a cemetery plot does not receive fee simple title, but something similar to an easement. Only if it is abandoned does the plot revert to the Town. The headstone is normally the property of the purchaser of the plot. The headstone is not the property of the Town.

Town only provided maintenance to the common areas of the cemetery. Although Town operated and provided the cemetery service, there was no property interest in the headstone placed on an easement belonging to the plot owner. Consequently, Town owed no duty in maintaining the headstone. Town also enacted Ordinance § 91.2, which states: “It shall be the duty of the proprietor or owners of the lots to keep in repair permanent markers, stones, and memorials in the boundaries of their lots.” To impose a duty on the town is too great a burden to impose on property the Town does not own. 

Town had no duty to inspect the headstone. A state entity, like Town, is liable for loss resulting from its torts or the torts of employees committed within the scope of employment.  In Moran v. City of Del City, the Court interpreted § 155(13) to describe the exercise of a particular governmental “power” or “function” and not a simple familiarization with one’s property.  Because no governmental inspection power or function is at issue in this case § 155(13) is not applicable.

If Town had placed the object (headstone), then it would have a duty to inspect.  McCathern v. City of Okla. City, 2004 OK 61. Here, Town had no duty to inspect the headstone because it was not owned, placed, or controlled by Town.
Outcome:Court of Civil Appeals Opinion Vacated; District Court’s decision affirmed. 
Vote:9-0; Winchester, J. (author).