The purpose of this article is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners' liability toward persons entering thereon for recreational purposes.
(Ga. L. 1965, p. 476, § 1.)
Law reviews.- For article, "Of Rocks and Hard Places: The Value of Risk Choice," see 42 Emory L.J. 1 (1993). For annual survey article on local government law, see 52 Mercer L. Rev. 341 (2000). For annual survey of administrative law, see 56 Mercer L. Rev. 31 (2004). For survey article on local government law, see 59 Mercer L. Rev. 285 (2007). For annual survey on local government law, see 69 Mercer L. Rev. 205 (2017). For annual survey on local government law, see 70 Mercer L. Rev. 177 (2018). For annual survey on trial practice and procedure, see 70 Mercer L. Rev. 253 (2018). For comment, "Remarks and Recreation: Recent Changes in the Recreational Property Act and the State of the Law Going Forward," see 71 Mercer L. Rev. 443 (2019).
JUDICIAL DECISIONS
Purpose of article.
- O.C.G.A. Art. 2, C. 3, T. 51 has been adopted to encourage landowners to make land and water areas available to the public by limiting the liability in connection therewith, prescribing the duty of care owed by landowners to those using the land for recreational purposes, the duty of care owed by landowners to invitees and permittees. North v. Toco Hills, Inc., 160 Ga. App. 116, 286 S.E.2d 346 (1981).
Article applies to private and public owners.
- O.C.G.A. Art. 2, C. 3, T. 51 applies to private owners of land as well as to public owners of land. Welch v. Douglas County, 199 Ga. App. 269, 404 S.E.2d 450, cert. denied, 199 Ga. App. 907, 404 S.E.2d 450 (1991).
O.C.G.A. Art. 2, C. 3, T. 51 was applicable to playground on public school property. Edmondson v. Brooks County Bd. of Educ., 205 Ga. App. 662, 423 S.E.2d 413 (1992).
O.C.G.A. Art. 2, C. 3, T. 51 applied to playground equipment on church property. Maleare v. Peachtree City Church of Christ, Inc., 213 Ga. App. 593, 445 S.E.2d 321 (1994).
O.C.G.A. Art. 2, C. 3, T. 51 applied to a community athletic association. South Gwinnett Athletic Ass'n v. Nash, 220 Ga. App. 116, 469 S.E.2d 276 (1996).
"Public" construed.
- One must permit the free use of one's facilities or land by the public generally or by a particular class of the public, such as Little Leaguers, Boy Scouts, etc., and permitting free use by classes of individuals is not sufficient. Herring v. Hauck, 118 Ga. App. 623, 165 S.E.2d 198 (1968).
Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq., was not limited to privately held land; a welcome center where a traveler was injured was recreational, and thus the department which owned the welcome center was immune from liability and any connection between brochures offered at the welcome center and the state's eventual "profit" from increased tax revenue was far too tenuous to render the venture commercial. Matheson v. Ga. DOT, 280 Ga. App. 192, 633 S.E.2d 569 (2006).
Applicability of article depends on public purpose, not size of tract.
- Applicability of O.C.G.A. Art. 2, C. 3, T. 51 does not hinge on the size of the tract involved. The important criterion is the purpose for which the public is permitted on the property. If the public is invited to further the business interests of the owner - e.g., for sales of food, merchandise, services, etc. - then the article will not shield the owner from liability even though the public receives some recreation as a side benefit. Cedeno v. Lockwood, Inc., 250 Ga. 799, 301 S.E.2d 265 (1983) (rejecting rationale of Erickson v. Century Mgt. Co., 154 Ga. App. 508, 268 S.E.2d 779 (1980)).
Fact finder was required to resolve conflicts in evidence which showed that a park where a bomb exploded during the 1996 Olympics had both commercial and recreational aspects before the trial court could determine if an Olympic committee was immune from liability for injuries and death, pursuant to Georgia's Recreational Property Act, O.C.G.A. § 51-3-20 et seq., and the state supreme court ruled that, on remand, the jury could consider evidence of the committee's purpose as demonstrated before, during, and after the bomb exploded. Atlanta Comm. for the Olympic Games, Inc. v. Hawthorne, 278 Ga. 116, 598 S.E.2d 471 (2004), overruled on other grounds by Mercer Univ. v. Stofer, 830 S.E.2d 169, 2019 Ga. LEXIS 436 (Ga. 2019).
City sidewalks.
- Applying O.C.G.A. Art. 2, C. 3, T. 51 to a municipal sidewalk does not place it in conflict with O.C.G.A. § 32-4-93, which sets forth circumstances in which a city may be liable for defects in its streets and sidewalks; simply stated, the article will control when the sidewalk is used for a "recreational purpose" and the other requirements of this article are satisfied, and O.C.G.A. § 32-4-93 will apply in other cases. City of Tybee Island v. Godinho, 270 Ga. 567, 511 S.E.2d 517 (1999).
Sidewalk along beach outside protection of O.C.G.A. Art. 2, C. 3, T. 51 when, although people who used the sidewalk often spent money at businesses in the defendant city, the city was not in the business of entertainment or recreation and did not seek to make a profit from the use of the sidewalk. City of Tybee Island v. Godinho, 270 Ga. 567, 511 S.E.2d 517 (1999).
Article not applicable to residential swimming pool.
- Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq., adopted to promote the public use of land facilities, was not meant to apply to the friendly neighbor who permits one's friends and neighbors to use one's swimming pool without charge. Herring v. Hauck, 118 Ga. App. 623, 165 S.E.2d 198 (1968).
Article not applicable to vacant lots in residential areas.
- The purpose of the Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq., is the limiting of the liability of persons making land and areas available to the public for recreational purposes and does not apply to vacant lots in residential areas. Shepard v. Wilson, 123 Ga. App. 74, 179 S.E.2d 550 (1970).
Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq., is not applicable when use of land is expressly denied to potential users by posting of "keep out" signs in area. Georgia Power Co. v. McGruder, 229 Ga. 811, 194 S.E.2d 440 (1972).
Conclusion that Recreational Property Act waived sovereign and official immunities was erroneous.
- Although finding that official immunity shielded a county employee from liability for injuries suffered by a child when that child fell from a swing on county property that the employee previously inspected, and that sovereign immunity shielded the county, the trial court nonetheless erred in concluding that the Recreational Property Act, O.C.G.A. § 51-3-20 et seq., waived these immunities as: (1) implied waivers of governmental immunity were not to be favored; (2) the employee was entitled to official or qualified immunity, which could not be waived; and (3) even assuming a partial waiver of sovereign and official immunity through enactment of the Act, no evidence was presented that the employee acted willfully and the defect complained about by the child's parent was apparent to those using the property. Norton v. Cobb, 284 Ga. App. 303, 643 S.E.2d 803 (2007), cert. denied, 2007 Ga. LEXIS 634 (Ga. 2007).
Liability under this article distinguished from general liability to licensees.
- The owner or occupier of premises coming within the terms of the Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq., did not have "substantially" the same duties toward a user of the premises as that owed to a licensee under former Code 1933, § 105-402 (see now O.C.G.A. § 51-3-2). Herring v. Hauck, 118 Ga. App. 623, 165 S.E.2d 198 (1968).
Under the Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq., the injured party coming within the provisions of that Act would be obligated to show a willful and malicious failure to guard or warn, that is, a failure to use even slight care; whereas a licensee under former Code 1933, § 105-402 (see now O.C.G.A. § 51-3-2) may recover by showing a lack of ordinary care, which under the circumstances may amount to willful and wanton negligence. Herring v. Hauck, 118 Ga. App. 623, 165 S.E.2d 198 (1968).
Under the Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq., the owner's liability for willful and wanton acts was limited solely to the willful and malicious failure to guard or warn against a dangerous condition, use, structure, or activity. Perhaps as to such willful and malicious acts, the duty was substantially similar to that owed to a licensee under former Code 1933, § 105-402 (see now O.C.G.A. § 51-3-2), but to that extent only, as the owner, under that section had a broader duty which may have involved acts other than failure to guard against or warn against the dangers stated under the Act. Herring v. Hauck, 118 Ga. App. 623, 165 S.E.2d 198 (1968).
Fall at leased gymnasium during cheerleader exhibition.
- A mother who was injured in a fall while attending her daughter's cheerleading exhibition could not recover for negligence against the gym (a lessee) because she had signed a medical-release form; further, her claims were barred by the Recreational Property Act, O.C.G.A. § 51-3-20 et seq., because the gym did not charge a fee for the exhibition. Shields v. RDM, LLC, 355 Ga. App. 409, 844 S.E.2d 297 (2020).
Fee charged for use of park.
- The trial court did not err in granting summary judgment to the defendant since the trial court was authorized to conclude as a matter of law that the $4.00 fee charged to each vehicle to enter the park did not constitute a charge for the recreational use of the park land itself and the plaintiff's alleged injuries resulted from the plaintiff's general recreational usage of the park premises, for which no fee was charged, rather than from the use of any of the facilities for which a fee was charged. Therefore, the provisions of the Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq., operate to prevent the plaintiff from recovering from the defendant based on allegations of simple negligence. Quick v. Stone Mt. Mem. Ass'n, 204 Ga. App. 598, 420 S.E.2d 36, cert. denied, 204 Ga. App. 922, 420 S.E.2d 36 (1992).
Tripping on debris in state park.
- Spouse's action against the Georgia Department of Natural Resources, seeking damages for injuries sustained when the injured spouse tripped on a debris pile that was located near a public restroom on state land, was barred by the Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq. Lee v. Dep't of Natural Res. of Ga., 263 Ga. App. 491, 588 S.E.2d 260 (2003).
Owner not liable to persons admitted free, although others were charged.
- Under O.C.G.A. § 51-3-23 of the Recreational Property Act, O.C.G.A. § 51-3-20 et seq., a city operating a stadium was shielded from liability for injuries sustained by a six-year-old child who fell from the bleachers because children under six were not charged a fee to enter the stadium, although adults and older children were charged. Mayor & Aldermen of Garden City v. Harris, 302 Ga. 853, 809 S.E.2d 806 (2018).
Allegation of simple negligence barred recovery.
- Trial court did not err in granting summary judgment to a city on allegations of negligence asserted against the city by an injured motorcycle driver as the Recreational Property Act (Act), O.C.G.A. § 51-3-20 et seq., prevented the driver from recovering from the city based on allegations of simple negligence; moreover, the Act clearly applied because it was undisputed that the injuries occurred when the driver collided with the cable fence on the city's recreational property, and the city permitted the general public to use the park and open field where the accident occurred for recreational purposes without charge. Carroll v. City of Carrollton, 280 Ga. App. 172, 633 S.E.2d 591 (2006).
Drowning.
- Trial court properly granted summary judgment to the Georgia Department of Natural Resources and a power company in a mother's wrongful death action after the mother's child drowned at a visit to a state park as the Recreational Property Act, O.C.G.A. § 51-3-20 et seq., absolved the entities from any liability since there was no evidence that the drowning resulted from a willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity. Ray v. Ga. Dep't of Natural Res., 296 Ga. App. 700, 675 S.E.2d 585 (2009).
County did not waive protection of the Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq., by purchasing liability insurance. Welch v. Douglas County, 199 Ga. App. 269, 404 S.E.2d 450, cert. denied, 199 Ga. App. 907, 404 S.E.2d 450 (1991).
County's activities involving routine maintenance and clean-up of a ball field did not waive the immunity provided under the Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq. Welch v. Douglas County, 199 Ga. App. 269, 404 S.E.2d 450, cert. denied, 199 Ga. App. 907, 404 S.E.2d 450 (1991).
Church-sponsored festival.
- In a case in which a parent's child was injured while attending a church-sponsored festival, the church was shielded from liability by the Recreational Property Act, O.C.G.A. § 51-3-20 et seq. There was no evidence that the church was actively seeking to recruit new members during the festival or that the church recruited any new members as a result of the festival. Word of Faith Ministries, Inc. v. Hurt, 323 Ga. App. 296, 746 S.E.2d 777 (2013).
Issue should be submitted to jury for balancing test analysis.
- Grant of summary judgment in favor of the city in a wrongful-death action brought by the decedent's spouse was improper under the Recreational Property Act (RPA), O.C.G.A. § 51-3-20 et seq., because the trial court was required to submit the issue to the jury to perform the required balancing test, considering the totality of the circumstances. Upon the jury's resolution of the factual issue, the trial court was required to apply the jury's finding and determine as a matter of law whether or not the RPA applied to limit the city's liability in the case. Butler v. Carlisle, 299 Ga. App. 815, 683 S.E.2d 882 (2009), cert. denied, No. S10C0052, 2010 Ga. LEXIS 155 (Ga. 2010), overruled on other grounds by Mercer Univ. v. Stofer, 830 S.E.2d 169, 2019 Ga. LEXIS 436 (Ga. 2019).
Cited in Stone Mt. Mem. Ass'n v. Herrington, 225 Ga. 746, 171 S.E.2d 521 (1969); Georgia Power Co. v. McGruder, 229 Ga. 811, 194 S.E.2d 440 (1972); North v. Toco Hills, Inc., 160 Ga. App. 116, 286 S.E.2d 346 (1981); Lockwood, Inc. v. Cedeno, 164 Ga. App. 34, 295 S.E.2d 753 (1982); Godinho v. City of Tybee Island, 231 Ga. App. 377, 499 S.E.2d 389 (1998); Anderson v. Atlanta Comm. for the Olympic Games, Inc., 261 Ga. App. 895, 584 S.E.2d 16 (2003).
RESEARCH REFERENCES
Am. Jur. 2d.
- 62 Am. Jur. 2d, Premises Liability, §§ 184 et seq., 453 et seq. 62A Am. Jur. 2d*, Premises Liability, § 626 et seq.
C.J.S.- 65A C.J.S., Negligence, § 490 et seq.
ALR.- Liability of private owner or operator of picnic ground for injury or death of patron, 67 A.L.R.2d 965.
Private owner's liability to trespassing children for injury sustained by sledding, tobogganing, skiing, skating, or otherwise sliding on his land, 19 A.L.R.3d 184.
Liability of business establishments, places of accommodation or recreation, and the like, for injury or damage occurring on the premises caused by the accidental starting up of parked motor vehicle, 43 A.L.R.3d 952.
Liability for injury or death of nonparticipant caused by water skiing, 67 A.L.R.3d 1218.
Liability of swimming facility operator for injury to or death of diver allegedly resulting from hazardous condition in water, 85 A.L.R.3d 750.
Liability of swimming facility operator for injury or death allegedly resulting from defects of diving board, slide, or other swimming pool equipment, 85 A.L.R.3d 849.
Liability of operator of swimming facility for injury or death allegedly resulting from absence of or inadequacy of rescue equipment, 87 A.L.R.3d 380.
Liability of swimming facility operator for injury or death allegedly caused by failure to adequately fence facility, 87 A.L.R.3d 886.
Liability of operator of nonresidential swimming facility for injury or death allegedly resulting from failure to provide or exercise proper supervision, 87 A.L.R.3d 1032.
Liability of swimming facility operator for injury to or death of trespassing child, 88 A.L.R.3d 1197.
Liability of swimming facility operator for injury or death inflicted by third person, 90 A.L.R.3d 533.