Remarks and Recreation: Recent Changes in the Recreational Property Act and the State of the Law Going Forward

• Publication year: 2020

Remarks and Recreation: Recent Changes in the Recreational Property Act and the State of the Law Going Forward

M. Blake Walker

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Remarks and Recreation: Recent Changes in the Recreational Property Act and the State of the Law Going Forward^*

I. Introduction

In 1965, the Georgia General Assembly passed the Recreational Property Act (RPA or the Act),¹ which generally grants landowners protection from liability when they open up their property for recreational purposes.² Almost all states have enacted recreational use statutes, and it has been said that these statutes "codify tort principles that are universally recognized in common-law jurisdictions with regard to duties owed by owners and occupiers of property to those who come upon such property merely as licensees to use it for outdoor recreational purposes."³ The Georgia version declares, "The purpose of this [law] is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners' liability toward persons entering thereon for recreational purposes."⁴ until recently, the wording of the law has remained largely unaltered since its adoption in 1965. In fact, one of the only changes to the language of the law since 1965 was made in 2014, when the Georgia General Assembly extended the scope of recreational activities to include "aviation activities."⁵

Generally, the RPA allows owners of land to "owe[] no duty of care to keep the premises safe for entry or use by others for recreational

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purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes."⁶ Furthermore, when such a recreational property is open to the public for recreational use, the owner does not "[c]onfer upon such person the legal status of an invitee or licensee to whom a duty of care is owed."⁷ This is in contrast to the general premises liability law in Georgia, which states that whenever "an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe."⁸

On its face, the language and purpose of the RPA are simple. However, because of the simplicity in the language of the statute, Georgia appellate courts have disagreed about how, when, and to whom the RPA should be applied. The Georgia Supreme Court recently defined the test in determining when the RPA applies:

[T]he true scope and nature of the landowner's invitation to use its property, and this determination is informed by two related considerations: (1) the nature of the activity that constitutes the use of the property in which people have been invited to engage, and (2) the nature of the property that people have been invited to use.⁹

In other words, the two-part test's first question asks whether the activity in which the public was invited to engage was of a kind that qualifies as recreational under the Act, and the second asks whether, at the relevant time, the property was of a sort that is used for recreational purposes.

This two-part test will be discussed further in this Comment, including how the law has recently been applied in Georgia, and what criteria courts do and do not consider when deciding whether the law applies. As this Comment will explain, recent changes on this front indicate that property owners will more easily be able to utilize the protection of the Act.

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Another change involving the RPA was sparked when a recent case resulted in an unpopular outcome concerning the injury of a six-year-old girl attending a youth football game.¹⁰ Because of the Georgia Supreme Court's statutory interpretation of the Act, the little girl was barred from recovering for her injuries.¹¹ The court's opinion could not be used for precedent long, however, because the Georgia General Assembly acted remarkably quickly to amend the RPA—altering the language of the law more than any other amendment has since the Act's adoption in 1965.¹²

This Comment will explain how the new amendment to the RPA, contrary to the new test for determining the applicability of the RPA, will limit property owners' use of the RPA's protection, and could even result in many recreational activities being excluded from protection under the Act.

II. Developments in the Law

A. Background Cases

In order to understand the recent developments in the Recreational Property Act, a short background of cases is necessary to understand where the law stood before and why the recent changes are important.

In Cedeno v. Lockwood,¹³ a case decided in 1983, the Georgia Supreme Court laid down a relatively simple formula for determining whether the RPA applies.¹⁴ This case arose when Cedeno, a sightseer, fell and injured herself while walking on a stairway next to Underground Atlanta. Cedeno was taking photographs of the tourist destination, and was, at least arguably, in the area for recreational purposes. The defendant-landowner argued that because the area was open to the public for recreational purposes, the RPA should protect him from liability.¹⁵ The court, however, pointed out that "[t]he property owners . . . and their tenants make their property available to the public for entertainment purposes and anticipate the visitors will purchase the food, merchandise, or services available. They are in the

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business of entertainment or recreation."¹⁶ In holding that the RPA did not protect the landowner in this case, the court laid down a simple rule: "If the public is invited to further the business interests of the owner—e.g., for sales of food, merchandise, services, etc.—then the RPA will not shield the owner from liability even though the public receives some recreation as a side benefit."¹⁷ After Cedeno, the RPA was understood to protect property owners if their property's purpose was primarily recreational and the public was invited to it for a recreational purpose, as opposed to furthering the landowner's financial interest.

More than fifteen years later, another incident arising from downtown Atlanta caused a reconsideration of the RPA analysis. In the Georgia Supreme Court decision Atlanta Committee for the Olympic Games, Inc. v. Hawthorne,¹⁸ and a previous opinion from a prior appeal in the same case, Anderson v. Atlanta Committee for the Olympic Games,¹⁹ the state high court addressed the Recreational Property Act in consolidated cases arising out of the 1996 bombing in Centennial Olympic Park in Atlanta.²⁰ Based on those two cases, the Georgia Supreme Court created a balancing test for determining the status of any given property in mixed-use situations where there are both recreational and commercial interests.²¹ In Anderson, the court stated that its new test "requires that all social and economic aspects of the activity be examined. Relevant considerations on this question include, without limitation, the intrinsic nature of the activity, the type of service or commodity offered to the public, and the activity's purpose and consequence."²² In the subsequent appeal (Hawthorne), the court explained that this test could require juries to delve into questions about a property owner's subjective intentions: "[M]ixed uses of the property may nevertheless raise a jury question about the owner's purpose for 'directly or indirectly inviting or permitting without charge any person to use the property.'"²³ The Georgia Supreme Court also determined it was relevant for a jury, in deciding whether a given activity was recreational, to consider if the landowner was subjectively

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hoping to "derive, directly or indirectly, a financial benefit for pecuniary gain from business interests thereon."²⁴ By mandating an examination of a landowner's purpose in opening his land to the public, and by allowing an inquiry as to the landowner's subjective motivations, the Georgia Supreme Court complicated the RPA analysis and made it much more difficult for property owners to avail themselves of the protection under the Act. Today, however, the standard laid out in the Atlanta bombing cases is no longer good law.

Very soon thereafter in 2001, the United States Court of Appeals for the Eleventh Circuit used the Georgia Supreme Court's test to determine recreational use in Hendrickson v. Georgia Power Co.,²⁵ but the court did not find dispositive the indirect pecuniary benefits or subjective intentions of the defendant-landowner.²⁶ In that case, the defendant, a power company, owned and operated a lake as well as a public area alongside the lake. The lake supplied the power company with the necessary "water for cooling and steam generation."²⁷ The power company opened the area to the public free of charge for recreational use, including, "boating, fishing, sailing, swimming, picnicking, camping, hunting, hiking, and scenic viewing of the lake and surrounding area."²⁸ The plaintiff's son was shot and killed while visiting the area, and the trial court granted the power company's motion for summary judgment based, in part, on the protection under the RPA.²⁹ The Eleventh Circuit acknowledged that the operation of the lake furthered business interests of the power company (not only through power generation but also through public good will).³⁰ However, the court held that the plaintiff's son was not on the property to further any of those commercial interests.³¹ Had this case been binding precedent on Georgia state courts, it could have limited the application of the Atlanta bombing cases so that indirect and subjective benefits to a landowner would only be considered if the damages occurred in connection to a commercial activity.

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B. The Stofer Case: Clarifying the Standard

1. Facts

In July 2014, two sisters, Sally Stofer and Carol Denton, were attending a free concert at...