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.

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