In a 7-2 decision, the Georgia Supreme Court recently reversed the Georgia Court of Appeals and held that the owner of a recreational facility was immune from claims brought on behalf of a child injured at the facility, despite the fact that the facility charged admission to most attendees. The case is Garden City v. Harris, Case No. S17G0692 (January 29, 2018).
Under the Georgia Recreational Property Act (OCGA § 51-3-20 et seq.), a property owner (or tenant, lessee, or other person with control over the property) who opens his or her land to the public for recreational purposes is immune from injuries that occur on the property. This could include parks, recreation centers, and athletic facilities. The Act contains a non-exclusive list of potential uses that fall under its provisions, including "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."
The Georgia Recreational Property Act recognizes two exceptions to this broad immunity, however. First, the immunity does not apply if the owner willfully or maliciously fails to guard or warn against a dangerous condition, use, structure, or activity. Second, the immunity is inapplicable if the owner charges for the use of the facility or property.
A number of Georgia Supreme Court and Court of Appeals cases have addressed this second exception. Questions can arise when entry onto the property is free, but charges may be required for individual attractions or concessions. In these cases, the courts have found that the property owners remain immune at least for injuries resulting from areas of the property where no fee was required. Courts have also found that requiring a parking fee does not constitute a "charge" so as to eliminate the immunity. On the other hand, the Supreme Court has acknowledged that in some cases, a property owner who does not charge an entry fee but nevertheless maintains the property for financial gain may, under certain circumstances, not be entitled to Georgia Recreational Property Act immunity.
In Garden City v. Harris, the injury at issue occurred at a youth football stadium owned by the municipality of Garden City near Savannah. Adults were required to pay a $2 admission fee, but children six years old and younger were not required to pay. A six-year-old child, who did not pay for admission, was injured on the property, and her parents brought suit on her behalf. Garden City argued that because the injured child had not been charged a fee for entry, it was entitled to immunity.
In 2016, the Georgia Court of Appeals agreed, and ruled that because fees were charged for some attendees, though not the attendee who was injured, the property fell under the exception to the Act and that the Garden City could be liable. The Supreme Court subsequently reversed. It held that based on the plain statutory text of OCGA § 51-3-23, determination of the immunity must be made based on each individual's payment status, rather than whether any charge was involved at all. Therefore, the child injured on the property was unable to make a claim for her injuries.