2020 Georgia Code
Title 51 - Torts
Chapter 3 - Liability of Owners and Occupiers of Land
Article 2 - Owners of Property Used for Recreational Purposes
§ 51-3-23. Effect of Invitation or Permission to Use Land for Recreation

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.

(Ga. L. 1965, p. 476, § 4.)

- 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).

JUDICIAL DECISIONS

Section not applicable to invitation to use residential swimming pool.

- Georgia Recreational Property Act, adopted to promote the public use of land and facilities, was not meant to apply to the friendly neighbor who permits friends and neighbors to use one's swimming pool without charge. Herring v. Hauck, 118 Ga. App. 623, 165 S.E.2d 198 (1968).

- 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).

- 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).

- 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).

- The owner or occupier of premises coming within the terms of the Georgia Recreational Property Act 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, § 4 (see now O.C.G.A. § 51-3-23), the injured party coming within the provisions of Ga. L. 1965, p. 476, § 4 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).

- 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, O.C.G.A. § 51-3-20 et seq., 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).

- State park's collection of a $1.00 parking fee upon all motor vehicles did not constitute a charge imposing liability for personal injuries sustained by a park visitor under the Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq. Majeske v. Jekyll Island State Park Auth., 209 Ga. App. 118, 433 S.E.2d 304 (1993).

- Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq., applied to a negligence action against the boys and girls club because the nominal voluntary fee some members paid did not constitute a "charge" to the public as contemplated by the Act. Gayle v. Frank Callen Boys & Girls Club, Inc., 322 Ga. App. 412, 745 S.E.2d 695 (2013).

Attractive nuisance theory was inapplicable since the injured child was not a trespasser but rather a person permitted on the property but to whom only a limited duty of care was owed. Edmondson v. Brooks County Bd. of Educ., 205 Ga. App. 662, 423 S.E.2d 413 (1992).

- 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).

- The Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq., provided immunity to the defendant power company as the owner of recreational property in an action arising from the murder of a teenage boy on a 65 acre tract made available at no charge to the public for boating, fishing, sailing, swimming, picnicking, camping, hunting, hiking, and scenic viewing of a lake and surrounding area since: (1) the boy was not on the property to further any commercial interests of the power company; (2) there was no mixture of commercial and recreational activities taking place on the property; (3) there was no admission fee to get onto the property, no parking fees, and no costs for the use of any of the facilities once a visitor entered the property; and (4) there were no vendors on the property from whom visitors could buy anything. Hendrickson v. Georgia Power Co., 240 F.3d 966 (11th Cir. 2001).

- Evidence did not show that the Georgia Department of Natural Resources violated the Georgia Recreational Property Act (RPA), O.C.G.A. § 51-3-20 et seq., because it willfully and maliciously failed to warn people of the danger posed by a debris pile that was located near a public restroom on state land, and the trial court's judgment finding that the RPA applied to an action which a spouse filed against the Department seeking damages for injuries sustained when the injured spouse tripped on the debris pile, and dismissing the action, was upheld. Lee v. Dep't of Natural Res. of Ga., 263 Ga. App. 491, 588 S.E.2d 260 (2003).

- Recreational Property Act (RPA), O.C.G.A. § 51-3-20 et seq., applies to rest areas maintained by the Georgia Department of Transportation (DOT), and the DOT was entitled to summary judgment as a matter of law with regard to a visitor's premises liability and negligence suit against the DOT resulting from the visitor's trip and fall while attempting to place garbage in a trash can at a rest area, because the DOT was immune from liability as a result of the application of the RPA and the visitor failed to show that the DOT was wilful or wanton in its placement of its trash can or that it charged money for the use of their rest areas. Ga. DOT v. Thompson, 270 Ga. App. 265, 606 S.E.2d 323 (2004).

- 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).

- 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).

- 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).

- 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 the complaint to remove references to "recreational." City of Chickamauga v. Hentz, 300 Ga. App. 249, 684 S.E.2d 372 (2009).

- Pedestrian's complaint for injuries suffered while walking on a city-owned recreational walkway were barred by the Recreational Property Act (RPA), O.C.G.A. § 51-3-20 et seq. The pedestrian could not circumvent the judicial admissions in the pedestrian's first complaint by amending the complaint to remove references to "recreational." City of Chickamauga v. Hentz, 300 Ga. App. 249, 684 S.E.2d 372 (2009).

- Trial court erred in granting summary judgment to cemetery owner and maintenance company in a visitor's personal injury action because the evidence presented a factual dispute as to whether the owner's purpose of the property was commercial or recreational; the owner pointed to evidence reflecting that the cemetery did not limit access, was open to the public, and was available to the public for recreational purposes such as picnics, jogging, or walking pets, while the evidence also reflected that the owner operated the cemetery as part of the owner's for-profit business and sold grave sites and interment rights for burial in accordance with a commercial enterprise. Martin v. Dempsey Funeral Servs. of Ga., Inc., 319 Ga. App. 343, 735 S.E.2d 59 (2012).

- When the plaintiff's decedent incurred a fatal injury while attending a free, outdoor concert in a public park hosted by the defendant, the Georgia Supreme Court held that since it clarified the standard under the Recreational Property Act, O.C.G.A. § 51-3-20 et seq., a lower appellate court had to determine whether the defendant was entitled to summary judgment on the basis of immunity since the evidence was cited that the court improperly considered the indirect benefit that the defendant might have received as a result of the concert. Mercer Univ. v. Stofer, 306 Ga. 191, 830 S.E.2d 169 (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); Epps v. Chattahoochee Brick Co., 140 Ga. App. 426, 231 S.E.2d 443 (1976); 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); Georgia Marble Co. v. Warren, 183 Ga. App. 866, 360 S.E.2d 286 (1987); Nye v. Union Camp Corp., 677 F. Supp. 1220 (S.D. Ga. 1987); Cooley v. City of Carrollton, 249 Ga. App. 387, 547 S.E.2d 689 (2001); 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); Norton v. Cobb, 284 Ga. App. 303, 643 S.E.2d 803 (2007); Word of Faith Ministries, Inc. v. Hurt, 323 Ga. App. 296, 746 S.E.2d 777 (2013); Chatham Area Transit Auth. v. Brantley, 353 Ga. App. 197, 834 S.E.2d 593 (2019).

RESEARCH REFERENCES

ALR.

- Liability of owner of private residential swimming pool for injury or death occasioned thereby, 64 A.L.R.5th 1.