The Marsh family that operated the Tri-State Crematory is asking that a lawsuit brought by Walker County to try to recover costs from a cleanup of the property be dismissed.

Marsh attorney Stuart James of Chattanooga said the crematory was located on private property.

He also said the county waited two late to bring their suit, saying it was filed more than two years after uncremated bodies were found at the Noble, Ga., crematory.

Here is the Marsh family answer:

IN THE STATE COURT FOR THE COUNTY OF WALKER

STATE OF GEORGIA

WALKER COUNTY, GEORGIA, *
*
Plaintiff, *
*
vs *
*
CREMATORY DEFENDANTS: * CIVIL ACTION FILE
* NUMBER: 04CV5379
TRI-STATE CREMATORY, RAY BRENT *
MARSH, CLARA MARSH, CLARA *
MARSH as Executrix of the Estate of RAY *
MARSH, SR. DECEASED, RHAMES *
LASHAE MARSH, Individually and Doing *
Business as TRI-STATE CREMATORY, *
INC., *
*
AND *
*
FUNERAL HOME AND FUNERAL *
DIRECTOR DEFENDANTS: *
*
BUCKNER-RUSH FUNERAL HOME and *
STEVE SMITH, JAMES L. RUSH and C. *
MARK RUSH, DAWN PALMER, and *
DARRIN DOUGLAS, Funeral Directors; *
CAGLE FUNERAL HOME, and ROBERT *
A CAGLE, Funeral Director; COVENANT *
FUNERAL SERVICES and WALTER L *
CROX, Funeral Director; *
CROMBIE-PINKARD FUNERAL *
SERVICES, INC. and NATHANIEL *
PINKARD, JR. Funeral Director; *
CUMBERLAND FUNERAL HOME, and *
DEAN LAY, Funeral Director, *
ERWIN-PETTIT FUNERAL HOME and *
DURWOOD KL. PETTIT, WILLIAM E *
RAINWATER, BOBBY F HAWKINS, and *
GARY C LONG, Funeral Directors; *
EWTON FUNERAL HOME and JOHN *
DOE, Funeral Director; FAMILY *
MORTUARY, INC. and C. EUGENE *
OVERSTREET, Funeral Director; *
FOSTER & LAY FUNERAL HOME, *
a/k/a FOSTER & SON FUNERAL HOME, *
and GERRY DALE LAYNE and ROBERT *
FOSTER, JR., Funeral Director; *
FRANKLIN-STRICKLAND FUNERAL *
R and REUBIN STRICKLAND, Funeral *
Directors; GILMORE FUNERAL HOME, *
and JOHN DOE, Funeral Director; HOUSE *
OF OVERSTREET MORTUARY and REV *
C. EUGENE OVERSTREET, Funeral *
Director; J. AVERY BRYAN FUNERAL *
HOME, INC. and JOE T. LEMAN, Funeral *
Director; JULIAN PEEPLES MEMORIAL *
CHAPEL, INC and JULIAN PEEPLES, *
Funeral Director; KERBY FUNERAL *
HOME and JOHN DOE, Funeral Director; *
KIRKLAND & JENNINGS FUNERAL *
HOME, and J. PARNICK JENNINGS, JR, *
Funeral Director; MAX BRANNON & *
SONS FUNERAL HOME and MAX *
BRANNON, JAMES E BRANNON and *
JAMES E CARVER, Funeral Directors; *
PEEPLES FUNERAL HOME and JOHN W *
PEEPLES, FRANCIS L PEEPLES and *
JERRY HERNDON, Funeral Directors; R D *
MOORE FUNERAL HOME and RON *
MOORE, Funeral Director; RYAN *
FUNERAL HOME, INC., and ROBERT A *
RYAN, JR., Funeral Director; *
SEQUATCHIE VALLEY MEMORIAL *
FUNERAL HOME and HAROLD BOYD, *
RANDY TATE and DONALD DIXON, *
Funeral Directors; TAYLOR FUNERAL *
HOMES OF CHATTANOOGA, INC, and *
JOHN TAYLOR, and ANITA TAYLOR, *
Funeral Directors; THOMAS FUNERAL *
HOME and BRUCE THOMAS, ALVIN N *
LONG, BENNY COULTER and JAMES *
CARVER, Funeral Directors; TURNER *
FUNERAL HOME and J MIKE TURNER, *
ROBERT K SHRADER, LARRY *
DOWDEN, STEVEN HENSLEY, JR, *
and/or STEVEN HORNSBY JR, Funeral *
Directors; WALLIS-WILBANKS *
FUNERAL HOME, LLC, and RICHARD *
M WILBANKS and JOEL H McDONALD, *
Funeral Directors; , and JAMES T. *
HARGIS and JADA HARGIS, Funeral *
Directors; WILLIS FUNERAL HOME and *
WILLIAM J WILLIS, SR. and WILLIAM J *
WILLIS, JR, Funeral Directors; and *
HOLDING COMPANY DEFENDANTS; *
*
SCI ALABAMA FUNERAL SERVICES; *
SCI GEORGIA FUNERALS SERVICES, *
INC. PRIME SUCCESSION, INC., PRIME *
SUCCESSION OF TENNESSEE, INC., *
PRIME SUCCESSION HOLDINGS, INC. *
and PRIME SUCCESSION OF GEORGIA, *
INC., *
*
Defendants. *

MOTION TO DISMISS
STATEMENT OF FACTS:
In February of 2002, the county government of Walker County, Georgia, discovered bodies at Tri-State Crematory. As a result of this discovery, 787 criminal counts of a criminal indictment were returned against Ray Brent Marsh. Numerous civil cases were filed against Mr. Marsh in three states. Two class action lawsuits were filed against Mr. Marsh in Tennessee and Georgia. The Tennessee class action was decertified. The Georgia class action was settled in the United States District Court for the Northern District of Georgia. The settlement of the Georgia class action also resulted in a plea bargain, attached as "exhibit one" (1), between Ray Brent Marsh and the State of Georgia. For the court's convenience, a copy of the ultimate settlement reached in the Georgia class action is attached as "exhibit two" (2). Judge Bodiford, sitting specially in the criminal trial, reviewed the plea bargain agreement and held extensive hearings regarding the plea bargain. Judge Bodiford ultimately accepted the plea bargain. Ray Brent Marsh is currently serving his sentence in the State of Georgia pursuant to the terms and conditions of the plea bargain agreement .
I. THE FREE PUBLIC SERVICES DOCTRINE:
The Complaint fails to state a claim for which relief can be granted because Walker County, Georgia, a county government, is barred from bringing a private tort claim for recovery of money spent for performing public duties on the behalf of Georgia residents.

Walker County filed a complaint alleging that it is entitled to recover public funds spent on the abatement of an alleged "public nuisance" on the property of the Tri-State Crematory. The complaint also “sounds in negligence.” Mr. Marsh asserts that Walker County Georgia cannot make this claim. The law in Georgia prevents this type of lawsuit. Walker County cannot sue Mr. Marsh, or any of the funeral home defendants, in tort.
In Torres v. Putnam County, the Georgia Court of Appeals held that a county has no authority to sue its citizens for damages in tort. Torres v. Putnam County, 246 Ga.App. 544; 541 S.E.2d 133 (2000). In Torres, Putnam County sought compensatory and punitive damages against a business owner arising from that owner's use of his property, located in unincorporated Putnam County. Putnam County did not allege there was damage to County property. The county did not suffer damage to County property. In the case before this court, Walker County has not alleged any damage to County property in its claim against Mr. Marsh and the funeral home defendants.
The complaint, filed by Walker County states in pertinent part: "The crematory defendants either owned property upon which crematory operations occurred, or operated a crematory on property relative to Plaintiff's claims during the relevant time of this action, or owned such property and conducted such operations, or both." Pl. Comp. 2. "By failing to properly cremate bodies and by scattering bodies in, on or around the property in question, the Crematory Defendants either created a public nuisance, participated in the creation of a public nuisance, or permitted a public nuisance to be created upon property owned, occupied, managed or controlled by them." Pl. Comp. 11. "Plaintiffs show Defendants failed to maintain the premises owned by them and upon which the Tri-State Crematory business activities were conducted consistent with applicable standards of care . . .". Pl. Comp. 64. Plaintiff, Walker County, clearly alleges the property made the subject of the complaint is private property. The county has no ownership interest in the property. The County does not own any of the adjoining property. Walker County alleges the property made subject of this action is owned by the Marsh defendants. Moreover, the county admits in its complaint that it suffered no damages to County property. Based upon the allegations of the complaint the county does not have standing to sue any defendant. Moreover, the complaint fails to allege a factual basis, a legal basis, or any basis for claim that a duty is owed by any defendant to Walker County. Moreover, the complaint fails to allege how the duty, if owed, is breached. Finally, Walker County cannot allege under Georgia law that it was damaged by any action of any defendant.
The property made the subject of Walker County's complaint is not owned by Walker County. Consequently, Walker County is suing for monetary tort damages, allegedly caused by the defendants, to property owned by the Marsh defendants . A County cannot sue a private individual for compensatory or punitive damages for torts committed by property owners on privately owned property. Georgia law "find[s] no authority for the position that such an expenditure of public funds in performing a public duty required by law implicates any private right". Torres v. Putnam County, 246 Ga.App. 544, 548; 541 S.E.2d 133, 136 (2000); quoting State Hwy. and Public Works Comm. v. Cobb, 2 S.E.2d 565 (1939) (state had no cause of action against an escaped convict for the expenses of recapturing him). Moreover, Walker County has no legal basis to recover compensatory tort damages under Georgia law. In the case of Torres v. Putnam County, 246 Ga.App. 544; 541 S.E.2d 133, the court stated that "because the county has no legal basis to recover compensatory tort damages, it follows that it may not recover punitive damages." Torres, 246 Ga.App. at 549, 541 S.E.2d at 137; quoting Southern General Ins. Co. v. Holt, 416 S.E.2d 274 (1992). The Torres court then explained, "[t]o the extent the county's amended complaint seeks recovery in tort, the trial court erred in denying the motion of Torres and Turner to dismiss the complaint." Torres, 246 Ga.App. at 549; 541 S.E.2d at 137. The Torres court makes it clear that the county has no private cause of action against a landowner for torts allegedly committed by the landowner, on the property of the landowner. Under Georgia law, Walker County cannot recover money spent by the county to remedy any alleged torts; this is the essence of the Free Public Services Doctrine. Walker County's lawsuit is a violation of the Free Public Services Doctrine .
The Free Public Services Doctrine is best defined by the United States Court of Appeals for the District of Columbia in the Air Florida case where the court, when encountered with the issue, stated that " [t]he question whether a governmental entity may recover the costs of tax-supported emergency services from negligent tortfeasors appears to be one of first impression in the District of Columbia. Precedent from other jurisdictions, however, persuades us that, in the absence of authorizing legislation or a governmental proprietary interest protected by the services, these expenses may not be recovered from tortfeasors." District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1078 (1984). In Air Florida, the District of Columbia sued Air Florida to recoup the cost of emergency services and bridge repairs following an airplane crash where an Air Florida plane crashed into a Florida bridge; the Complaint was dismissed for failing to state a claim upon which relief could be granted. Air Florida, at 1078. In Air Florida, the Complaint "alleged that it had incurred extraordinary expenses because of Air Florida's negligence". Air Florida, at 1079. Similarly, Walker County is a government body seeking recovery for the cost of public services allegedly incurred because of defendant's negligence. See Pl. Comp., generally.
The rule from Air Florida states that "absent authorizing legislation, the cost of public services for protection from fire or safety hazards is to be borne by the public as a whole, not assessed against the tortfeasor whose negligence creates the need for the service." Air Florida, at 1080. The Air Florida court goes on to explain that "[w]here emergency services are provided by the government and the costs are spread by taxes, the tortfeasor does not anticipate a demand for reimbursement . . . where a generally fair system for spreading the costs of accidents is already in effect--as it is here through assessing taxpayers the expense of emergency services--we do not find the argument for judicial adjustment of liabilities to be compelling." Air Florida, at 1080. Based upon the governing law, this Court should dismiss Plaintiff's Complaint for failing to state a claim upon which relief can be granted pursuant to the Free Public Services Doctrine.
Another case that clarifies the Free Public Services Doctrine is Koch v. United Edison Company of New York, 468 N.E.2d 1 (1984). In Koch, the city of New York attempted to recover money expended due to emergency services rendered following a city-wide blackout, allegedly caused by the negligence of the Consolidated Edison Company. In Koch, the court stated that "Con Edison argues persuasively that plaintiffs should not be permitted to recover costs incurred for wages, salaries, overtime and other benefits of police, fire, sanitation and hospital personnel from whom services (in addition to those which would normally have been rendered) were required in consequence of the blackout. The general rule is that public expenditures made in the performance of governmental functions are not recoverable". Koch, at 8. In support of this rule, the Koch court cited similar cases from other jurisdictions . Likewise, this Court should grant the Marsh Defendants Motion to Dismiss because Walker County has done nothing more than provide public services under the Free Public Services Doctrine.
Another case that mirrors the Walker County case is City of Philadelphia v. Beretta U.S.A., Corp., 126 F.Supp.2d 882 (2000), where the city of Philadelphia sued the gun industry, claiming that the industry's methods for distributing guns was negligent and constituted a public nuisance. The Beretta court held that "the plaintiffs lack standing and cannot recover under any legal theory asserted. Therefore, [the court dismisses the] case." Beretta, at 887. The Beretta court went on to explain "that a municipal corporation has no control over nuisance existing within its corporate limits except such as is conferred upon it by its charter or by general law." Beretta, at 893. The Pennsylvania courts call the Free Public Services Doctrine the Municipal Cost Recovery Rule, but both are essentially identical. The Municipal Cost Recovery Rule states that "[t]he cost of public services for protection from a safety hazard is to be borne by the public as a whole, not assessed against a tortfeasor whose negligence creates the need for the service." Beretta, at 894; quoting City of Pittsburgh v. Equitable Gas Co., 512 A.2d 83, 84 (1986). Philadelphia attempted to avoid the application of the Municipal Cost Recovery Rule by arguing that a suit for a public nuisance rendered the rule inapplicable. The court disagreed with the city of Philadelphia and stated that "[t]he City cannot have it both ways: if it sues in its governmental capacity, it is prevented from doing so by the legislature. If it sues for costs it has itself incurred due to gun violence, the action is barred under the municipal cost recovery rule." Beretta, at 895.
Similarly, Walker County’s complaint contains allegations sounding in nuisance allegedly stemming from the Marsh defendant's negligence . Just like the court in Beretta, this Court should dismiss the plaintiff's complaint for failure to state a claim upon which relief can be granted because of the Free Public Services Doctrine's applicability to Walker County's lawsuit.
In Standard Oil, the Supreme Court of the United States recognized the Free Public Services Doctrine when the United States government sought to recover damages for treating soldiers under U.S. health care plans. U.S. v. Standard Oil Co., 332 U.S. 301 (1947). The holding of Standard Oil is best described by the court in U.S. v. Philip Morris Inc., 116 F.Supp.2d 131, 140, where the court recognized that "MCRA [federal legislation allowing lawsuits by the government to recover certain medical expenses furnished by the U.S. government] was enacted in response to a 1947 Supreme Court decision [Standard Oil] which held that the Government lacked a common law cause of action to recover from tortfeasors expenses the government had incurred in treating military personnel under its health care programs."
This Court should follow precedent and dismiss the Walker County’s Complaint because plaintiff seeks to recover for expenditures made in the process of rendering public services, which is prohibited by the Free Public Services Doctrine.
II. THE ECONOMIC LOSS RULE:
The Complaint fails to state a claim for which relief can be granted because Walker County, Georgia is barred from bringing a private tort claim for recovery of economic damages allegedly sustained on the property of private citizens, when no damage has occurred to property owned by Walker County, Georgia.

In addition to law of Torres, supra, that Walker County cannot recover economic damages to property that Walker County does not own, Walker County cannot recover from any defendant under the Georgia's Economic Loss Rule. "Under the economic loss rule, a plaintiff can recover in tort only those economic losses resulting from injury to his person or damage to his property; a plaintiff cannot recover economic losses associated with injury to the person or damage to the property of another." G.E. Co. v. Lowe's Home Centers, Inc., 2005. Ga. LEXIS 115 (Ga. 2/7/2005) (the opinion is attached as "Exhibit three” (3) for the court’s convenience). Walker County, Georgia, seeks to recover economic damages from the Marsh defendants caused by the alleged negligence of the Marsh defendants; the claims made by Walker County all occurred on the grounds of Tri-State Crematory. The Tri State Crematory property is private property, not public property. The plaintiffs alleged that the property is private and not governmentally owned. See Pl. Comp., supra. Therefore, pursuant to Georgia's Economic Loss Doctrine, the plaintiff's Complaint should be dismissed for failure to state a claim for which relief can be granted.
In Lowe's, the plaintiff, Lowe's, Inc., sought to acquire adjacent land in order to convert its home-improvement store to an expanded 'superstore'. In order to facilitate this expansion plaintiff struck a deal with a land development company, wherein the development company would acquire the property Lowe's desired, and Lowe's would subsequently purchase the land from the developer once it had been tested for contamination. When the land in Lowe's was tested, the test results revealed PCB's on the property. Pursuant to the contract between Lowe's and the developer, the purchase contract was canceled and Lowe's sued General Electric for the contamination to the property Lowe's desired to purchase, alleging, among other things, negligence, nuisance, trespass and lost profits for the superstore that, otherwise, would have been erected on the contaminated land. Walker County seeks to recover monetary damages for negligence and public nuisance, all relating to land owned by the Marsh defendants.
The Lowe's court subsequently discussed the case of Byrd v. English, 43 S.E. 419 (1903). In Byrd, the plaintiff sustained economic damages when the defendants destroyed an electrical conduit on an adjoining parcel of land that did not belong to plaintiff. In addressing the problem, the Georgia Supreme Court explained that if recovery were allowed by a non-owner of the land where the damage occurred, then a customer of the plaintiff could additionally sue, and so-on, down the line. Byrd, at 420. This suggestion was essentially a slippery-slope argument where one tortfeasor would be liable to multiple plaintiffs for one single occurrence. In response to this suggestion, the Byrd court stated that "[t]o state such a proposition is to demonstrate it's absurdity". Byrd at 420.
Over one-hundred years later, in Lowe's, the Georgia Supreme Court reaffirmed the precedent established in Byrd. Byrd has, additionally, been cited with approval by the United States Supreme Court in Robins Dry Dock & Repair Co. v. Flint, 275, U.S. 303, 309 (1927), and that portion of Robins remains good law today. The Lowe's court utilized a line of reasoning quite similar to that in Byrd. The Lowe's court reasoned that "[p]olicy considerations also favor G.E.'s position and disfavor Lowe's position. Lowe's position would significantly expand the reach of Georgia tort law by allowing double recovery for the same wrongdoing if, for example, the current owner of the adjacent land in this case also made a claim for recovery." Lowe's, at 7-8. The Lowe's court then went on to state that "[i]n contrast, G.E.'s position [that the Economic Loss rule bars recovery] provides the certainty of a bright line rule, affords predictability to courts and parties alike, and avoids the unfairness to defendants that would come with duplicate liability for the same damage. Lowe's, at 8.
Walker County’s complaint goes against the 'bright line rule' and one-hundred years of precedent by seeking recovery for alleged torts that were not committed on property owned by Walker County and did not damage property owned by Walker County. Therefore, this court, pursuant to the Economic Loss Rule, should follow well-established Georgia precedent and dismiss plaintiff's Complaint for failing to state a claim for which relief can be granted.
III. LIMITATIONS ON ACTIONS:
Walker County is suing the defendants in negligence. The lawsuit was filed more than two years after the discovery at Tri-State Crematory as alleged in the complaint. Walker County seeks to recover economic damages based upon a theory that Walker County was somehow personally injured by the negligence of the Marsh defendants. Walker County has not alleged that it suffered damages to its property. Walker County has not alleged that a nuisance damaged its property. The attorneys for Walker County have told this court that the complaint is one for negligence.
As the court knows, Walker County can not recover for economic damages. Moreover, Walker County has not been able to establish damage to its property. The claim against the Marsh defendants is not based on contract, because there is no contract between Walker County and the Marsh defendants. If the claim is for negligence, the claim must logically be for personal injuries to Walker County resulting in economic loss. Despite the clear a law preventing Walker County from bringing a claim for personal entry based on economic loss, Walker County's claim is barred by the applicable two-year statute of limitations. Ga. Code Ann. § 9-3-33; applied to the county government by Ga. Code Ann. § 9-3-1. Therefore, this court must dismiss the claims filed by Walker County because they are barred by the applicable statute of limitations. However, the court does not have to reach this issue because Walker County simply has no claim under any theory against Brent Marsh or any other defendant in this case.

Respectfully Submitted,

GOINS, CARPENTER, JAMES & LOCKETT

________________________________________
STUART F. JAMES BPR# 389355
736 Cherry Street
Third Floor, Heritage Center
Chattanooga, TN 37402
(423) 756-3646