Bailey, et al. v. City of Leeds, [Ms. 2180720, Mar. 13, 2020] __ So. 3d __ (Ala. Civ. App. 2020). The court (Edwards, J.; Moore, Donaldson, and Hanson, JJ., concur; Thompson, P.J., concurs in the result) affirms the Jefferson Circuit Court’s summary judgment dismissing trespass claims asserted by owners of burial plots in the Cedar Grove cemetery, owned and operated by the City of Leeds. Ms. *55. The court reverses the summary judgment dismissing the negligence claims. Ibid.
Pursuant to its police power the State “may provide for the establishment and discontinuance of cemeteries, and regulate their use. This power may be delegated to municipalities within their corporate limits or police jurisdiction.” Ms. *40. The court rejected the plot owners’ argument that permanent cemetery regulations were invalid because they were passed via municipal resolution instead of ordinance. Ms. *35.
In regard to the trespass claims, the court noted that “the law protects the interests of the next of kin of the decedent who is buried in a cemetery plot.” Ms. *43. The court affirmed the summary judgment dismissing the trespass claims because employees of the city had “a right to enter upon the cemetery plots for purposes of fulfilling their maintenance duties under the 2011 regulations.” Ms. *46.
In regard to the negligence claims, the court held that “‘where the facts upon which the existence of a duty are disputed, the factual dispute is for resolution by the jury.’” Ms. *51, quoting Garner v. Covington County, 624 So. 2d 1346 (Ala. 1993). The court concluded there were genuine issue of fact on whether the City had a duty to burial plot owners to prevent damage to their adornments after the City removed the adornments from the burial plots. Ms. *53.