Georgia Supreme Court Clarifies Fact Analysis to be Applied Under Recreational Property Act
Stofer’s family sued after she suffered fatal injuries while attending a free concert which Mercer University hosted at a public park. Mercer University v. Stofer, S18G1022 (6/24/2019). The Recreational Property Act (“the Act”) shields from liability a property owner “who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes[.]” OCGA § 51-3-23. The parties had differed on whether the immunity under the Act applied due to factors such as commercial benefit and marketing reasons for the event, as opposed to a truly “recreational purpose.” The trial court concluded, and the Court of Appeals agreed, that the defendant was not entitled to summary judgment on its claim of immunity under the Act, given evidence that Mercer hosted the concert because it might (at least indirectly) benefit financially from the event.
The Georgia Supreme Court reversed, holding that the courts below had perhaps been “led astray” by earlier decisions the supreme court had issued with respect to the Act. The Court set out to clarify the test to be applied:
whether immunity is available under this provision requires a determination of the true scope and nature of the landowner’s invitation to use its property, and this determination properly 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.
The Court went on to scold the bench and bar for focusing on distinctions between the meaning of terms such “invitation” to use and “permission” to use property when those distinctions have no impact on the legal analysis. Similarly:
The bench and bar should remain attentive to such distinctions when they matter.
The Court then turned its attention to the errant reasoning applied by the Court of Appeals of Georgia:
First, the Court of Appeals relied on evidence about Mercer’s subjective motivations in hosting the under the Act concert that may have had nothing to do with the nature of the activity for which people were invited to use the property or the nature of the property in question. Second, at least some of the evidence cited by the Court of Appeals appears to be that of a merely speculative, indirect benefit that Mercer might receive as a result of the concert in question. Clarifying today that such considerations are generally improper, we vacate the Court of Appeals’s decision and remand the case with direction that the court revisit its analysis consistent with the standard that we clarify here.
Its corrective objective apparently accomplished, the Court listed the test/tests to be (and to some extent not to be) applied:
A. Prior case law with regard to recreational use can be distilled to two areas of focus in determining the scope and nature of a landowner’s invitation to use property: the nature of the activity that constitutes the use of the property that people have been invited to engage in, and the nature of the property that people have been invited to use;
B. It is improper to consider a landowner’s subjective motivations in determining whether the landowner is entitled to immunity under the Act;
C. Parties can no longer rely on language in previous opinions to the extent that they require a court to take into consideration the possibility that a landowner may obtain an indirect financial benefit by virtue of opening up its land in determining whether the Act affords immunity;
However, just when one might read the reasoning of the case to herald an overall strengthening of the immunities under the Act and greater access to summary judgment/dismissal, the Court made clear:
D. Whether a defendant is entitled to immunity under the Act will sometimes present a question of fact for a jury, especially in mixed-use cases.
Any concerns that – despite the Court’s warning about semantical distinctions – “sometimes” will mean “rarely” are essentially laid to rest by the Court’s opinion addressing Mercer’s argument as to this point:
Mercer complains that the protections of the Act “are significantly degraded if nearly every defendant is forced to undergo a trial before its immunity can be determined.” But this Court’s case law — which we largely reaffirm today while seeking to clarify its application — does not always require a trial in order for a defendant to avail itself of immunity under the Act.
With that, the Court remanded the case to the Court of Appeals to consider the proper evidence with respect to commercial activity occurring in the context of the free concert accompanied by a less than clear admonition with respect to what evidence would be improper or proper for that analysis. In short, while some of the evidence which has previously provided a limitation to immunity under the Act is now clearly improper, what evidence will create fact issues with regard to the immunity is not entirely clear.