By Doyice Cotten
Last week’s post, Waiver Protects Cheerleader Organization from Liability for Negligence in Georgia, examined the effect of a waiver on the liability of Georgia All Stars (GA). The court also said that GA was protected by the Georgia Recreational Property Act (OCGA § 51-3-20 et seq.). In this post, we will examine the latter source of liability protection for some recreation providers. To review, Kimberly Shields sued RDM, LLC d/b/a Georgia All Stars for negligence when Kimberly tripped and fell from mats on the floor at an exhibition of participants’ routines for parents to view in the practice area of the gym. The trial court ruled that the claim was barred both by the waiver which the Shields had signed months earlier and by the Georgia Recreational Property Act (RPA),which is addressed here. This appeal followed the trial court grant of summary judgment in favor of GA (Shields v. RDM, LLC d/b/a Georgia All Stars, 2020).
This statute applies only to qualifying recreation providers in Georgia. All states have a recreation user statute – beware, however, that there are significant differences among the statutes.
The Georgia statute, OCGA § 51-3-20 et seq,, in summary, reads
[e]xcept 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 … [a]ssume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.19
Georgians who are interested in more detail may read a brief summary of the Georgia Supreme Court explanation of the statute at Haddenfirm.com. The article is titled “Georgia Supreme Court Clarifies Immunity Rules Under Georgia Recreational Property Act.”
In discussing the statute, the Shields court said that “charge” means “the admission price or fee asked in return for invitation or permission to enter or go upon the land.” It stated that to determine whether immunity is available to a property owner under the RPA, it is necessary for the court to learn the true scope and nature of the landowner’s invitation to use the property. Two considerations are necessary: (1) the nature of the activity involved and (2) the nature of the property to be used. So first, is the activity recreational in nature and second, is the property the sort that is used primarily for recreational purposes.
The Shields did not question that the meeting was recreational in nature; they maintained, however, that
a material question of fact exists as to the purpose behind [Georgia All Stars’s] allowance of [their] daughter’s use of the facility, which relates directly to whether the operation of … the gym constitutes a commercial or recreational venture.
The Shields suggested that the activity was commercial in that the GA hoped to benefit from be exhibition because they might attract future clients. The court said that this argument is a nonstarter. The court stated that
- There is evidence that no fee was charged.
- Further, evidence showed they did not charge the group of which Shields’ daughter was a member.
- The presence of vendors at the exhibition does not make it a commercial activity.
- And the court quoted the Georgia Supreme Court which stated in a law review that “[i]t is not the law—and we have never said that it was—that inviting people to use recreational property for recreational activities could still fail to qualify for immunity under the Act solely because the landowner had some sort of subjective profit motive in doing so.”
- There is no evidence that any attendees were required to make purchases from the vendors, that the exhibition was held for the benefit of the vendors, or that Georgia All Stars in any way profited from vendor sales.
The court concluded that both the nature of the activity and the nature of the property were completely recreational. It ruled that the RPA and the waiver protected the Georgia All Stars – the trial court did not err in granting summary judgment.
Photo Credit: Thanks to Michael Neel via Flickr.