United States: The Cost Of Free Admission: Protection For Landowners Under The Recreational Property Act Strengthened By The Georgia Supreme Court

Last Updated: May 24 2018
Article by Daniel G. Cheek

Warm weather brings Georgians outdoors to enjoy an array of recreational activities, from coastal beaches to mountain trails and sporting events.  Moreover, most parents do not complain when their children are admitted to parks and games for free.  According to a recent decision by the Georgia Supreme Court, however, that free admission could ultimately provide a major benefit to the property owner in the event that a child is injured engaging in recreational activities on the owner’s land.

The Georgia General Assembly has enacted legislation, the Recreational Property Act (“RPA”), encouraging property owners “to make land and water areas available to the public for recreational purposes.”  O.C.G.A. § 51-3-20.  To further that goal, the RPA provides what can amount to a powerful liability defense for public and private landowners who make their property available for recreational use by the public without charging an admission fee. 

The RPA provides that:

Except as specifically recognized by or provided in Code Section 51-3-25, an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes does not thereby:

(1) Extend any assurance that the premises are safe for any purpose;

(2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed; or

(3) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.

O.C.G.A. § 51-3-23.  The RPA further provides that: “Except as specifically recognized by or provided in Code Section 51-3-25, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.”  O.C.G.A. § 51-3-22.  The limited exceptions in O.C.G.A. § 51-3-25 are: “(1) For willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity; or (2) For injury suffered in any case when the owner of land charges the person or persons who enter or go on the land for the recreational use thereof[.]” 

The import of these provisions taken together is that: “an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes may not be held liable for personal injuries resulting from unsafe or defective conditions existing on the premises, unless such injuries resulted from willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.”  South Gwinnett Athletic Assn. v. Nash, 220 Ga. App. 116 (1996). 

An “owner” who can benefit from this liability defense is not simply the person or entity holding title to the property.  Rather, the statutory definition includes “the possessor of a fee interest, a tenant, a lessee, an occupant, or a person in control of the premises.”  O.C.G.A. § 51-3-21(3).  Furthermore, “recreational activity” is defined as including, but not limited to, “hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, aviation activities, nature study, water skiing, winter sports, and viewing or enjoying historical, archeological, scenic, or scientific sites.”  O.C.G.A. § 51-3-21(4).  However, Georgia courts have held that “this language is not meant to limit the activities to those specified in the Code section, but encompasses any recreational activity, i.e., any amusement, play or other form of relaxation which refreshes the mind or body.”  Georgia Dep't of Transp. v. Thompson, 270 Ga. App. 265 (2004).  The RPA has been found to bar claims of persons injured at events such as basketball games at a Boys and Girls Club, youth football and baseball league games, and church league softball games.  Further, the RPA applies to both spectators and participants at sporting events.  See Spivey v. City of Baxley, 210 Ga. App.  772 (1993).

The next factor concerns what constitutes a “charge.”  The RPA defines a “charge” as simply “the admission price or fee asked in return for invitation or permission to enter or go upon the land.”  O.C.G.A. § 51-3-21(1).  Georgia courts have held on multiple occasions that registration fees to participate in a sports league, which are then used to defray operating costs, do not constitute a “charge” within the meaning of the RPA.  Nash, 220 Ga. App. 116 at 117-18; Spivey, 210 Ga. App. at 117-18.  Courts have also held that vehicle or parking fees assessed to enter Stone Mountain Park or Jekyll Island, for example, do not constitute an admission “charge” so as to preclude application of the RPA.  See Hogue v. Stone Mountain Mem. Assn., 183 Ga. App. 378, 358 S.E.2d 852 (1987).  Conversely, it would seem obvious that an owner who charges an admission fee for the public to enter onto his or her property would, as a consequence, not benefit from the protections of the RPA.  According to the Georgia Supreme Court, however, that is not necessarily the case.

In Mayor of Garden City v. Harris, 809 S.E.2d 806 (2018), the Georgia Supreme Court addressed the extent to which charging an admission fee to some, but not all, attendees at a sporting event affects the application of the RPA.  Specifically, a six-year-old child was seriously injured while attending a youth football game at a city-owned stadium when she fell from the bleachers.  The child’s parents were required to pay an admission fee to attend the game, but the child was admitted for free.  A majority of the Court held that the city was shielded from liability for the child’s injuries under the RPA, despite the fact that her parents and other adults were charged a fee.  The Court stated that the analysis was limited to whether or not the specific person who was injured was charged a fee to enter the property.  The Court held that “a landowner remains free from potential liability to any individual person who is injured on the landowner’s property who has been allowed to use the property for recreational purposes free of charge,” and “[a] landowner’s liability is limited to those injured persons who have paid to use the landowner’s property for recreational purpose.”  The Court also found it consistent with the purpose of the RPA to encourage landowners to provide free admission on a select basis for groups such as veterans, children, Boy or Girl Scout troops, etc.

Not all of the Justices agreed with that conclusion.  Justice Hunstein authored a dissent, joined by Justice Benham, as to what she described as the “patently absurd result” reached by the majority.  Instead of limiting the focus to whether a specific individual was charged an admission fee, Justice Hunstein reasoned that the RPA was designed to shield owners from liability only where “their property is open to the public for a recreational purpose without charge,” and that the analysis should hinge on whether or not the owner was compensated for the use of the property.  In other words, she concluded that it is the fee generally charged to the public for use of the property that controls, and not whether a specific individual was charged a fee.

The issues highlighted by Justice Hunstein are notable. A sporting event where the property owner derives revenues from admission fees is typically not the type of activity for which the RPA was designed to shield the owner from liability for injuries to persons attending the event.  Nevertheless, until it is overturned by a subsequent Georgia Supreme Court decision or the RPA is amended by the legislature, the majority opinion in Harris will stand.  That is good news for property owners.  For parents whose children are allowed to participate in or attend recreational activities free of charge, the news is that such free admission could come at a big cost.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions