2020 Georgia Code
Title 51 - Torts
Chapter 3 - Liability of Owners and Occupiers of Land
Article 2 - Owners of Property Used for Recreational Purposes
§ 51-3-22. Duty of Owner of Land to Those Using Same for Recreation Generally

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.

(Ga. L. 1965, p. 476, § 3.)

- For survey article on torts, see 34 Mercer L. Rev. 271 (1982).

JUDICIAL DECISIONS

Financial benefits from use of recreational facilities.

- Language of Atlanta Committee for the Olympic Games, Inc. v. Hawthorne, 278 Ga. 116 (2004) was held inconsistent with the weight of case law and the Georgia Supreme Court disapproved the language in Hawthorne or any other case that could be read to require consideration of evidence that the landowner was motivated by the possibility of obtaining indirect financial benefits from allowing the public to use the public's land in determining whether that invitation was for recreational purposes. Mercer Univ. v. Stofer, 306 Ga. 191, 830 S.E.2d 169 (2019).

- Applicability of the Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq., does not hinge on the size of the track involved. Cedeno v. Lockwood, Inc., 250 Ga. 799, 301 S.E.2d 265 (1983).

- Georgia Supreme Court held that whether immunity is available under the Recreational Property Act, O.C.G.A. § 51-3-20 et seq., requires determination of the true scope and nature of the landowner's invitation to use property, and that determination properly is informed by two related considerations: (1) the nature of the activity that constitutes use of the property in which the people have been invited to engage; and (2) the nature of the property that the people have been invited to use. Mercer Univ. v. Stofer, 306 Ga. 191, 830 S.E.2d 169 (2019).

- 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 Ga. L. 1965, p. 476, § 3 (see now O.C.G.A. § 51-3-22) the injured party coming within the provisions of the statute would be obligated to show a willful and malicious failure to guard or warn, that was, 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 Ga. L. 1965, p. 476, § 3 (see now O.C.G.A. § 51-3-22), the owner's liability for willful and wanton acts are limited solely to the willful and malicious failure to guard or warn against a dangerous condition, use, structure, or activity. Perhaps as to willful and malicious acts described in the statute, the duty is 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 has a broader duty which may involve acts other than failure to guard against or warn against the dangers stated under Ga. L. 1965, p. 476, § 3. Herring v. Hauck, 118 Ga. App. 623, 165 S.E.2d 198 (1968).

- Trial court erred in granting summary judgment for a school board as to an injured party's personal injury claim based on the Georgia Recreational Purposes Act, specifically O.C.G.A. §§ 51-3-22 and51-3-23, as the school board presented no evidence that the playground was open to the public and the injured party presented evidence that the playground: (1) was fenced-in; (2) was only for the use of children enrolled in the school; and (3) was not open to any segment of the general public. Hart v. Appling County Sch. Bd., 266 Ga. App. 300, 597 S.E.2d 462 (2004).

Willful failure to guard or warn would require actual knowledge of owner that its property is being used for recreational purposes; that a condition exists involving an unreasonable risk of death or serious bodily harm; that the condition is not apparent to those using the property; and that having this knowledge, the owner chooses not to guard or warn in disregard of the possible consequences. This test excludes either constructive knowledge or a duty to inspect. McGruder v. Georgia Power Co., 126 Ga. App. 562, 191 S.E.2d 305 (1972), rev'd on other grounds, 229 Ga. 811, 194 S.E.2d 440 (1972).

Willful failure imports conscious, knowing, voluntary, intentional failure, a purpose or willingness to make the omission, rather than a mere inadvertent, accidental, involuntary, inattentive, inert or passive omission. McGruder v. Georgia Power Co., 126 Ga. App. 562, 191 S.E.2d 305 (1972), rev'd on other grounds, 229 Ga. 811, 194 S.E.2d 440 (1972).

Landowner is not liable for injury suffered when land was made available for recreational purposes and when the injured party entered the land and was making use of the land for that purpose. Lockwood, Inc. v. Cedeno, 164 Ga. App. 34, 295 S.E.2d 753 (1982), rev'd on other grounds, 250 Ga. 799, 301 S.E.2d 265 (1983).

- 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).

- 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).

- Trial court did not err in granting summary judgment to a city on allegations of negligence asserted against it 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).

- A provider of janitorial services to a hospital as an independent contractor was not liable, pursuant to O.C.G.A. §§ 51-3-22 and51-3-25, in a slip and fall case involving a hospital employee because the employee was unable to argue that the employee entered the hospital for recreational purposes and, even if the hospital could be deemed a recreational area, the hospital as business owner and occupier could not delegate duty to keep the premises in reasonably safe condition. Perkins v. Compass Group USA, Inc., 512 F. Supp. 2d 1296 (N.D. Ga. Mar. 7, 2007).

- Pedestrian's complaint for injuries suffered while walking on a city-owned recreational walkway were barred by the Recreational Property Act, O.C.G.A. §§ 51-3-22 and51-3-23. The pedestrian could not circumvent the judicial admissions in the pedestrian's first complaint by amending it to remove references to "recreational." City of Chickamauga v. Hentz, 300 Ga. App. 249, 684 S.E.2d 372 (2009).

- 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 Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq., 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).

- Since no fee was charged for the recreational use of the defendant's land, the defendant was not liable to an individual injured while bicycling on a trail alleged to be unsafe and dangerous, of which danger it was alleged the defendant knew or should have known. Brannon v. Stone Mt. Mem. Ass'n, 165 Ga. App. 120, 299 S.E.2d 176 (1983).

- Since no fee was charged for recreational use of the defendant's land, the defendant was not liable to the individual injured while bicycling on the trail alleged to be unsafe and dangerous, of which danger it was alleged the defendant knew or should have known. Brannon v. Stone Mt. Mem. Ass'n, 165 Ga. App. 120, 299 S.E.2d 176 (1983).

City was not liable for injury occurring on a walkway maintained by the county recreational authority to provide access to a park and river. Julian v. City of Rome, 237 Ga. App. 822, 517 S.E.2d 79 (1999).

City and its employees were entitled to summary judgment under O.C.G.A. T. 51, C. 3 in an action seeking damages for injuries sustained by a participant in a program of the city that provided free after-school recreational and swimming therapy to certain disabled individuals. Cooley v. City of Carrollton, 249 Ga. App. 387, 547 S.E.2d 689 (2001).

- In a wrongful death action against the university after the decedent was fatally injured in a fall while attending a free concert in a park that was promoted and produced by a grant-funded division of the university, the university's motion for summary judgment was improperly denied as the university was immune from suit under the Recreational Property Act (RPA), O.C.G.A. § 51-3-20 et seq., because the nature of the activity and of the property was recreational as to the extent that the concert series might have increased the university's name recognition and good will in the community, potential student interest, or the likelihood that the university would receive future grant funding, such speculative considerations and subjective motivations were not relevant under the RPA. Mercer University v. Stofer, 354 Ga. App. 458, 841 S.E.2d 224 (2020).

- Summary judgment was improperly entered in favor of an Olympic Committee since a genuine issue of material fact existed about whether the operation of the Olympic Park was a commercial or a recreational venture; on remand, the jury was ordered to resolve the question of whether the nature of the Park at the time of the underlying explosion which caused the death or injury of those involved in the litigation was commercial or recreational, and the court was to decide whether the Recreational Property Act, O.C.G.A.51-3-20 et seq., applied to the Park and insulated the Committee from liability. Anderson v. Atlanta Comm. for the Olympic Games, Inc., 261 Ga. App. 895, 584 S.E.2d 16 (2003), aff'd, sub nom. Atlanta Comm. for the Olympic Games, Inc. v. Hawthorne, 278 Ga. 116, 598 S.E.2d 471 (2004).

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); Erickson v. Century Mgt. Co., 154 Ga. App. 508, 268 S.E.2d 779 (1980); North v. Toco Hills, Inc., 160 Ga. App. 116, 286 S.E.2d 346 (1981); Cedeno v. Lockwood, Inc., 250 Ga. 799, 301 S.E.2d 265 (1983); Anderson v. Atlanta Comm. for the Olympic Games, Inc., 273 Ga. 113, 537 S.E.2d 345 (2000); Norton v. Cobb, 284 Ga. App. 303, 643 S.E.2d 803 (2007); Chatham Area Transit Auth. v. Brantley, 353 Ga. App. 197, 834 S.E.2d 593 (2019).