SECOND DIVISION

MILLER, P. J.,

MERCIER and COOMER, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

April 24, 2020

In the Court of Appeals of Georgia

A20A0412. MACON-BIBB COUNTY v. KALASKI.

COOMER, Judge.

In thisinterlocutory appeal, Macon-Bibb County appealsfrom the trial court’s

denial of its motion for summary judgment. Macon-Bibb County contends that

sovereign immunity barred Ezell Kalaski’s

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premises liability lawsuit against it, and

that the trial court therefore erred in denying its motion for summary judgment. We

agree and reverse.

“On appeal from the denial or grant of summary judgment, the appellate court

conducts a de novo review of the evidence to determine whether there is a genuine

issue of material fact and whether the undisputed facts, viewed in the light most

favorable to the nonmoving party, warrant judgment as a matter of law.” Watts v. City

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 Appellee’s name also appears in the record as “Kalaski Ezell.”
of Dillard, 294 Ga. App. 861, 861 (670 SE2d 442) (2008) (citation and punctuation

omitted).

So viewed, the evidence shows that Kalaski was fishing from a dock on Lake

Tobesofkee within Arrowhead Park, which is owned and operated by Macon-Bibb

County.When stepping backwards, Kalaski partially fell through the dock, sustaining

injuries. The parties dispute whether Kalaski paid in order to enter the park and fish;

Kalaski claims he did, while the County claims he did not. 

Kalaski filed this premises liability action against Macon-Bibb County,

alleging under OCGA § 51-3-1 that he was an invitee at the park and the County

failed to exercise ordinary care in keeping the premises safe. In answering Kalaski’s

complaint, the County asserted that it was entitled to sovereign immunity, , and that

it was entitled to the privileges, immunities, and protections of the Recreational

Properties Act (“RPA”), OCGA § 51-3-20 et seq.

OCGA § 51-3-22 of the RPA provides:

Except as specifically recognized by or provided in Code Section 51-3-

25, an owner of land owes no duty to keep the premises safe for entry or

use by others for recreational purposes or to give any warning of a

dangerous condition, use, structure, or activity on the premises to

persons entering for recreational purposes.

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Similarly, OCGA § 51-3-23 provides:

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. 

Kalaski filed amotion for summary judgment.Kalaski argued that Macon-Bibb

County was not exempt from premises liability under the RPA because he paid a fee

to the County prior to his admission to the park. Specifically, he relied on former

OCGA § 51-3-25, which provided:

Nothing in this article limits in any way any liability which otherwise

exists:

(1) For willful or maliciousfailure to guard or warn against a dangerous

condition, use, structure, or activity; or (2) For injury suffered in any

case when the owner of land charges the person or persons who enter or

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go on the land for the recreational use thereof, except that, in the case of

land leased to the state or a subdivision thereof, any consideration

received by the owner for the lease shall not be deemed a charge within

the meaning of this Code section.

The County filed a cross-motion for summary judgment, arguing that it was

totally immune from suit under sovereign immunity. The County asserted that

sovereign immunity can only be waived pursuant to a legislative act specifically

providing thatsovereign immunity is waived and describesthe extent of such waiver,

and here there were no statutes that waived the County’s sovereign immunity with

respect to the injuries alleged by Kalaski. The County asserted that the RPA did not

waive its sovereign immunity, and that the RPA only limits landowner liability and

does not affirmatively establish any duties. Regarding Kalaski’s motion for partial

summary judgment, the County argued that in light of conflicting evidence as to

whether Kalaski paid a fee prior to his admission to the park, there were genuine

issues of material fact regarding whether the RPA applied to exempt the County from

any liability. 

Kalaski responded that the County was not entitled to sovereign immunity

because the RPA constituted a waiver of sovereign immunity. Specifically, Kalaski

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asserted that while counties are generally immune from suit under the RPA, in

enacting OCGA § 51-3-25 the legislature waived sovereign immunity and provided

an exception for when the land owner charges an invitee a fee to use the land, and

here the County charged him a fee. 

Following a hearing, the trial court issued an order denying each party’smotion

for summary judgment. The trial court simply concluded that “genuine issues of

material fact still remain with regard to [Kalaski’s] admittance to the subject

recreational facility.” After the trial court granted a certificate of immediate review,

Macon-Bibb County filed an application for interlocutory review, which we granted.

This appeal followed. 

On appeal, Macon-BibbCounty arguesthat it is entitled to sovereign immunity

because the RPA and its exceptions, including the charge exception of OCGA § 51-3-

25 (2), do not constitute a waiver of sovereign immunity. The County asserts that the

RPA simply provides that land owners generally owe no duty under traditional

premises liability to users of property made available to the public for recreational

purposes; this bar to suit appliesto all landowners, public and private, and the bar and

its exceptions have nothing to do with the sovereign immunity granted to the State,

its departments, and its agencies; and the exceptionsto the RPA only allow a plaintiff

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to circumvent the RPA. The County contends that there is no language in the RPA

expressly waiving sovereign immunity or describing the extent of any such waiver,

which is required in order to find a waiver of sovereign immunity. We agree.

“[S]overeign immunity extends to the state and all of its departments and

agencies. The sovereign immunity of the state and its departments and agencies can

only be waived by an Act of the General Assembly which specifically provides that

sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const. of

1983, Art. I, Sec. II, Para. IX (e); see also Ga. Const. of 1983, Art. IX, Sec. II, Para.

IX (“The General Assemblymay waive the immunity of counties, municipalities, and

school districts by law.”). “Implied waivers of governmental immunity should not be

favored.” Norton v. Cobb County, 284 Ga. App. 303, 306 (1) (643 SE2d 803) (2007)

(citation and punctuation omitted). “A waiver of sovereign immunity must be

established by the party seeking to benefit from the waiver.” Marshall v. McIntosh

County, 327 Ga. App. 416, 417 (1) (759 SE2d 269) (2014) (citation and punctuation

omitted). 

In Norton, the trial court found that the RPA waived the government’s

sovereign immunity, apparently based on the willful or malicious exception of OCGA

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§ 51-3-25 (1). 284 Ga. App. at 304-306 (1). This Court held that the trial court erred

in finding an implied waiver of sovereign immunity in the RPA, explaining that in

contrast to a statute which waived sovereign immunity by expressly providing that

a taxpayer whose claim for refund is denied by the county “shall have the right to

bring an action for a refund in the superior court,” the RPA, “by its terms, limits

liabilities of entities, private or public, which allow their property to be used without

charge for recreational purposes.” Id. at 306 (1). We concluded that “the trial court

erred in finding that the RPA waived the sovereign immunity of Cobb County, and

Cobb County was entitled to summary judgment on this ground.” Id. While in Norton

we specifically analyzed the willful or malicious exception of OCGA § 51-3-25 (1)

instead of the charge exception of OCGA § 51-3-25 (2), neither exception contains

any language expressly waiving sovereign immunity, and our analysis in Norton is

equally applicable to the charge exception.

The RPA – including the charge exception of OCGA § 51-3-25 (2) – does not

waive Macon-Bibb County’ssovereign immunity, because it lacksspecific language

providing for a waiver of sovereign immunity and the extent of such waiver. See

Currid v. DeKalb State Court Probation Dept., 285 Ga. 184, 187 (674 SE2d 894)

(2009); see also Ga. Const. of 1983, Art. I, Sec. II, Para. IX (e). The RPA simply acts

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as a limitation of liability for land owners who allow others to use their land for

recreational purposes, and the charge exception simply provides that this limitation

of liability does not apply when the land owner charges a fee. Indeed, OCGA § 51-3-

25 (2) provides that when the charge exception applies, the RPA will not “limit[] in

any way any liability which otherwise exists.” In light of Macon-Bibb County’s

entitlement to sovereign immunity, there is no basis on which liability might

otherwise exist for the County. Thus, Macon-Bibb County is entitled to sovereign

immunity, and the trial court erred in denying Macon-Bibb’s cross motion for

summary judgment. 

Judgment reversed. Miller, P. J., and Mercier, J., concur.

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