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Georgia legislature considers amendment to Recreational Property Act following recent Georgia Supreme Court decision

Posted by John Hadden | Mar 07, 2018 | 0 Comments

In January, the Georgia Supreme Court reversed the Georgia Court of Appeals in Garden City v. Harris, Case No. S17G0692 (January 29, 2018). The case involved application of the Georgia Recreational Property Act, located in the Official Code of Georgia, Annotated at OCGA § 51-3-20 et seq. The Act provides immunity, under most circumstances, for claims against property owners or occupiers who allow the public to use their property for recreational purposes without charging for entry or use. This law creates an important exception for premises liability personal injury claims, including slip-and-fall and trip-and-fall cases, that can preclude recovery.

In Garden City v. Harris, the Georgia Supreme Court ruled that the property owner's immunity must consider whether the specific person injured was charged an entry fee, rather than whether fees are charged for any person. A six-year-old girl was injured on allegedly defective bleachers while attending a sporting event at a facility owned by a city. Although the city charged for entry to the property for most visitors, it did not charge an entry fee for anyone six years old or younger. The injured child in this lawsuit was six years old, and therefore did not pay an entry fee, although her parents did. Because of this fact, the Georgia Supreme Court ruled that the child could not succeed in her personal injury claim against the property owner, the city.

Under this decision, victims of different ages could be treated differently under otherwise similar circumstances, presenting a fundamental unfairness. For example, if a six year old and seven year old were injured at the premises in the Harris case by the same defective bleacher, the seven year old victim would be able to pursue a claim against the property owner, while the six year old would not, merely because the seven year old was charged a fee. It should be noted that while the property owner in Harris was a governmental entity, the Recreational Property Act applies to both public and private property owners.

A bill currently pending before the Georgia General Assembly seeks to amend the Recreational Property Act to prevent this type of unfair outcome. House Bill 904 which has passed the Georgia House of Representatives and is being considered by the Georgia Senate, would modify the law to provide that the immunity provided by the Act does not apply to injuries caused to anyone at a time when the property owner or occupier charges any person to enter the property, regardless of whether every person is charged. Specifically, the current language of OCGA § 51-3-25(2) states, in part, that the immunity does not apply to the property owner

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 proposed amendment would replace this language to provide that the immunity does not apply

in any case on a date when the owner of land charges any person who enters or goes on the land for the recreational use thereof

Thus, the revised language would look at whether the owner charges the public generally, as opposed to the injured victim specifically. The amendment would be limited to this change, and would not affect the current immunity exception for willful or malicious injuries. It would also not affect the general requirements for making a premises liability claim, such as the requirement that the owner have knowledge of the defective condition, and that this knowledge be superior to the victim's knowledge. In other words, it would not change the substantive requirements for pursuing a Georgia personal injury claim arising from premises liability, and would only clarify the immunity available to a property owner under the Georgia Recreational Property Act.

Read more about premises liability personal injury claims here.

The bill must still pass the Georgia Senate, and be signed by the governor, before it become effective. If it does not pass this year, it could be reintroduced at the 2019 session of the Georgia General Assembly. The Senate could also modify the bill this session.

About the Author

John Hadden

John D. Hadden is the owner and founder of the Hadden Law Firm. An experienced trial and appellate lawyer, he is author of three respected treatises on Georgia litigation practice: Greens Georgia Law of Evidence, Georgia Law of Torts - Trial Preparation and Practice, and Georgia Magistrate Court...

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