GA Code § 51-3-25 (2021)
2021 Georgia Code|Title 51 - Torts|Chapter 3 - Liability of Owners and Occupiers of Land|Article 2 - Owners of Property Used for Recreational Purposes|§ 51-3-25. Certain Liability Not Limited

 Nothing in this article limits in any way any liability which otherwise exists:    For willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity; or   On a date when the owner of land charges any individual who lawfully enters such land for recreational use and any individual is injured in connection with the recreational use for which the charge was made, provided 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.    (Ga. L. 1965, p. 476, § 6; Ga. L. 2018, p. 1083, § 1/HB 904.)    The 2018 amendment,  effective July 1, 2018, substituted "On a date when the owner of land charges any individual who lawfully enters such land for recreational use and any individual is injured in connection with the recreational use for which the charge was made, provided that," for "For injury suffered 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, except that," at the beginning of paragraph (2).   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 2000, "thereof, any consideration" was substituted for "thereof any, consideration" in paragraph (2).   Law reviews.   - For annual survey on trial practice and procedure, see 70 Mercer L. Rev. 253 (2018).   JUDICIAL DECISIONS   Determining whether immunity is available under Recreational Property Act.    - Georgia Supreme Court held that whether immunity is available under the Recreational Property Act, O.C.G.A. § 51-3-20 et seq., requires determination of the true scope and nature of the landowner's invitation to use property, and that determination properly is informed by two related considerations: (1) the nature of the activity that constitutes use of the property in which the people have been invited to engage; and (2) the nature of the property that the people have been invited to use. Mercer Univ. v. Stofer, 306 Ga. 191, 830 S.E.2d 169 (2019).   Willful acts construed.    - Under Ga. L. 1965, p. 476, § 6 (see now O.C.G.A. § 51-3-25), the injured party coming within the provisions of that statute would be obligated to show a willful and malicious failure to guard or warn, that is, a failure to use even slight care; whereas a licensee under former Code 1933, § 105-402 (see now O.C.G.A. § 51-3-2) may recover by showing a lack of ordinary care, which under the circumstances may amount to willful and wanton negligence. Herring v. Hauck, 118 Ga. App. 623, 165 S.E.2d 198 (1968).    Under Ga. L. 1965, p. 476, § 6 (see now O.C.G.A. § 51-3-25), the owner's liability for willful and wanton acts are limited solely to the willful and malicious failure to guard or warn against a dangerous condition, use, structure, or activity. Perhaps as to willful and malicious acts described in the statute, the duty is substantially similar to that owed to a licensee under former Code 1933, § 105-402 (see now O.C.G.A. § 51-3-2), but to that extent only, as the owner, under that section has a broader duty which may involve acts other than failure to guard against or warn against the dangers stated under the Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq. Herring v. Hauck, 118 Ga. App. 623, 165 S.E.2d 198 (1968).    Although finding that official immunity shielded a county employee from liability for injuries suffered by a child when that child fell from a swing on county property that the employee previously inspected, and that sovereign immunity shielded the county, the trial court nonetheless erred in concluding that the Recreational Property Act, O.C.G.A. § 51-3-20 et seq., waived these immunities as: (1) implied waivers of governmental immunity were not to be favored; (2) the employee was entitled to official or qualified immunity, which could not be waived; and (3) even assuming a partial waiver of sovereign and official immunity through enactment of the Act, no evidence was presented that the employee acted willfully and the defect complained about by the child's parent was apparent to those using the property. Norton v. Cobb, 284 Ga. App. 303, 643 S.E.2d 803 (2007), cert. denied, 2007 Ga. LEXIS 634 (Ga. 2007).    Willful failure to guard or warn would require actual knowledge of owner that its property is being used for recreational purposes; that a condition exists involving an unreasonable risk of death or serious bodily harm; that the condition is not apparent to those using the property; and that having this knowledge, the owner chooses not to guard or warn in disregard of the possible consequences. This test excludes either constructive knowledge or a duty to inspect. McGruder v. Georgia Power Co., 126 Ga. App. 562, 191 S.E.2d 305 (1972), rev'd on other grounds, 229 Ga. 811, 194 S.E.2d 440 (1972); Spivey v. City of Baxley, 210 Ga. App. 772, 437 S.E.2d 623 (1993).    Willful failure imports a conscious, knowing, voluntary, intentional failure, a purpose of willingness to make the omission, rather than a mere inadvertent, accidental, involuntary, inattentive, inert, or passive omission. McGruder v. Georgia Power Co., 126 Ga. App. 562, 191 S.E.2d 305 (1972), rev'd on other grounds, 229 Ga. 811, 194 S.E.2d 440 (1972).   Open and obvious danger.    - A lessee's failure to guard or warn against dangerous conditions at a recreation area is not willful if the danger is open and obvious. Georgia Marble Co. v. Warren, 183 Ga. App. 866, 360 S.E.2d 286 (1987); Edmondson v. Brooks County Bd. of Educ., 205 Ga. App. 662, 423 S.E.2d 413 (1992).    As a prerequisite to immunity under the Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq., the owner cannot charge a fee for admission to the property. However, the fact that no fee is charged does not assure applicability of this Act. Cedeno v. Lockwood, Inc., 250 Ga. 799, 301 S.E.2d 265 (1983).   Admission fees charged by campers.    - After the plaintiff sued the United States over injuries the plaintiff allegedly sustained when the plaintiff fell down stairs within a federally owned campground, the United States was insulated from liability under Georgia's Recreational Property Act, O.C.G.A. § 51-3-20, because O.C.G.A. § 51-3-25's exception to non-liability for landowners that charged admission fees did not apply since the fees the United States charged campers were not admission fees, which were prohibited by federal law, but were assessed to defray the costs of providing utilities. Swafford v. United States, 839 F.3d 1365 (11th Cir. 2016).   Owner not liable to persons admitted free, although others were charged.    - Under O.C.G.A. § 51-3-23 of the Recreational Property Act, O.C.G.A. § 51-3-20 et seq., a city operating a stadium was shielded from liability for injuries sustained by a six-year-old child who fell from the bleachers because children under six were not charged a fee to enter the stadium, although adults and older children were charged. Mayor & Aldermen of Garden City v. Harris, 302 Ga. 853, 809 S.E.2d 806 (2018).   Liability when fee not charged.    - In order to recover under the Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq., from the defendant-owner, which did not charge a fee, the plaintiffs must show a willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity. Georgia Marble Co. v. Warren, 183 Ga. App. 866, 360 S.E.2d 286 (1987).   Financial benefits from use of recreational facilities.    - Language of Atlanta Committee for the Olympic Games, Inc. v. Hawthorne, 278 Ga. 116 (2004) was held inconsistent with the weight of case law and the Georgia Supreme Court disapproved the language in Hawthorne or any other case that could be read to require consideration of evidence that the landowner was motivated by the possibility of obtaining indirect financial benefits from allowing the public to use the public's land in determining whether that invitation was for recreational purposes. Mercer Univ. v. Stofer, 306 Ga. 191, 830 S.E.2d 169 (2019).    Attractive nuisance theory was inapplicable when an injured child was not a trespasser but rather a person permitted on the property but to whom only a limited duty of care was owed. Edmondson v. Brooks County Bd. of Educ., 205 Ga. App. 662, 423 S.E.2d 413 (1992).   Fee for use of park.    - The trial court did not err in granting summary judgment to the defendant since the trial court was authorized to conclude as a matter of law that the $4.00 fee charged to each vehicle to enter the park did not constitute a charge for the recreational use of the park land itself and the plaintiff's alleged injuries resulted from the plaintiff's general recreational usage of the park premises, for which no fee was charged, rather than from the use of any of the facilities for which a fee was charged. Therefore, the provisions of the Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq., operate to prevent plaintiff from recovering from defendant based on allegations of simple negligence. Quick v. Stone Mt. Mem. Ass'n, 204 Ga. App. 598, 420 S.E.2d 36, cert. denied, 204 Ga. App. 922, 420 S.E.2d 36 (1992).   Tripping on debris on public land.    - Evidence did not show that the Georgia Department of Natural Resources violated the Georgia Recreational Property Act (RPA), O.C.G.A. § 51-3-20 et seq., because it willfully and maliciously failed to warn people of the danger posed by a debris pile that was located near a public restroom on state land, and the trial court's judgment finding that the RPA applied to an action which a spouse filed against the Department seeking damages for injuries sustained when the injured spouse tripped on the debris pile, and dismissing the action, was upheld. Lee v. Dep't of Natural Res. of Ga., 263 Ga. App. 491, 588 S.E.2d 260 (2003).   Injury to motorcycle driver.    - Trial court did not err in granting summary judgment to a city on allegations of negligence asserted against it by an injured motorcycle driver as the Recreational Property Act (Act), O.C.G.A. § 51-3-20 et seq., prevented the driver from recovering from the city based on allegations of simple negligence; moreover, the Act clearly applied because it was undisputed that the injuries occurred when the driver collided with the cable fence on the city's recreational property, and the city permitted the general public to use the park and open field where the accident occurred for recreational purposes without charge. Carroll v. City of Carrollton, 280 Ga. App. 172, 633 S.E.2d 591 (2006).   Injury from swing in park.    - A park user who fell from a swing did not show that a city had actual knowledge of a dangerous condition under O.C.G.A. § 51-3-25 as there was no evidence that any city employee had read instructions about the swing, newspaper articles did not convey such knowledge, and replacing equipment in 1999 was not probative of actual knowledge in 2003. Collins v. City of Summerville, 284 Ga. App. 54, 643 S.E.2d 305 (2007).    When a city park user fell from a swing, there was evidence that the city had actual knowledge of the condition of the ground under the swing and the user presented no evidence that the grass and soil beneath the swing was one involving unreasonable risk of death or serious bodily harm; moreover, the condition of the ground was readily apparent to any user of the swings. Collins v. City of Summerville, 284 Ga. App. 54, 643 S.E.2d 305 (2007).   Independent contractor's fall in hospital.    - A provider of janitorial services to a hospital as an independent contractor was not liable, pursuant to O.C.G.A. §§ 51-3-22 and51-3-25, in a slip and fall case involving a hospital employee because the employee was unable to argue that the employee entered the hospital for recreational purposes and, even if the hospital could be deemed a recreational area, the hospital as business owner and occupier could not delegate its duty to keep the premises in reasonably safe condition. Perkins v. Compass Group USA, Inc., 512 F. Supp. 2d 1296 (N.D. Ga. Mar. 7, 2007).   Drowning in state park.    - Trial court properly granted summary judgment to the Georgia Department of Natural Resources and a power company in a parent's wrongful death action after the parent's child drowned at a visit to a state park as the Recreational Property Act, O.C.G.A. § 51-3-20 et seq., absolved the entities from any liability since there was no evidence that the drowning resulted from a willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity. Ray v. Ga. Dep't of Natural Res., 296 Ga. App. 700, 675 S.E.2d 585 (2009).   Whether park officials knew of dangerous condition and whether failure to warn occurred.    - In an action brought after a cyclist was seriously injured in a biking accident in a national park, the district court erred in finding that the United States was immune from liability under Georgia's Recreational Property Act, O.C.G.A. § 51-3-20 et seq., because park officials knew the park was being used for recreational purposes, a reasonable jury could conclude that park officials knew the condition existed involving unreasonable risk of death or serious bodily harm, genuine issues of material fact remained as to whether park officials knew that dangerous condition created by root heave in pavement was not apparent to visitors, and genuine issues of material fact remained as to whether willful failure to warn occurred. Shaw v. United States, 725 Fed. Appx. 817 (11th Cir. 2018)(Unpublished).   Jury instruction on payment for access to land.    - Trial court erred in denying the county's motion for summary judgment on the plaintiff's premises liability lawsuit against the county because the Recreational Property Act (RPA), O.C.G.A. § 51-3-20 et seq., including the charge exception, did not waive the county's sovereign immunity because the charge lacked specific language providing for a waiver of sovereign immunity and the extent of such waiver as the RPA simply acted as a limitation of liability for land owners who allowed others to use their land for recreational purposes, and the charge exception simply provided that the limitation of liability did not apply when the land owner charged a fee. Macon-Bibb County v. Kalaski, 355 Ga. App. 24, 842 S.E.2d 331 (2020).    Cited in Stone Mt. Mem. Ass'n v. Herrington, 225 Ga. 746, 171 S.E.2d 521 (1969); Washington v. Trend Mills, Inc., 121 Ga. App. 659, 175 S.E.2d 111 (1970); Georgia Power Co. v. McGruder, 229 Ga. 811, 194 S.E.2d 440 (1972); Erickson v. Century Mgt. Co., 154 Ga. App. 508, 268 S.E.2d 779 (1980); North v. Toco Hills, Inc., 160 Ga. App. 116, 286 S.E.2d 346 (1981); Majeske v. Jekyll Island State Park Auth., 209 Ga. App. 118, 433 S.E.2d 304 (1993); Anderson v. Atlanta Comm. for the Olympic Games, Inc., 273 Ga. 113, 537 S.E.2d 345 (2000); Cooley v. City of Carrollton, 249 Ga. App. 387, 547 S.E.2d 689 (2001); Anderson v. Atlanta Comm. for the Olympic Games, Inc., 261 Ga. App. 895, 584 S.E.2d 16 (2003); Word of Faith Ministries, Inc. v. Hurt, 323 Ga. App. 296, 746 S.E.2d 777 (2013).   RESEARCH REFERENCES   ALR.   - Preemption of state statute, law, ordinance, or policy with respect to employment- and education-related issues involving aliens, 88 A.L.R.6th 627.