Godinho v. City of Tybee Island , 231 Ga. App. 377 ( 1998 )

BIRDSONG, Presiding Judge,

dissenting.

Because I believe that the trial court correctly ruled that the sidewalk where appellant sustained her fall is subject to the Recreational Property Act, OCGA § 51-3-20 et seq., I must respectfully dissent.

The Recreational Property Act at OCGA § 51-3-22 provides that “an owner of land owes no duty of care 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.” Significantly, the stated exceptions to this provision which are set forth in OCGA § 51-3-25, pertain to wilful or malicious acts and omissions and to land for which the owner extracts a charge of money, “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.” OCGA § 51-3-21 (4) defines “recreational purpose” as including, “but not limited to, any of the following or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing or enjoying historical, archeological, scenic, or scientific sites.”

The Recreational Property Act specifically does not exempt state, city or other public property from its terms, and no power or logic allows us to do so. Moreover, the Act appears to be directed particularly to publicly owned property which is maintained for recreational use and is otherwise subject to the terms of the Act. This view is confirmed by OCGA § 51-3-25 (2), which exempts from the Act’s immunity an owner who exacts a “charge” for people entering his property for recreational purposes, except that where an owner leases property “to the state or a subdivision thereof.” In my opinion the Act’s terms include this sidewalk, which is provided without charge, for access to the beach for persons walking along the beach, an activity Godinho was engaged in when she fell. The Act exempts from the “duty of care” (OCGA § 51-3-22) an owner which gives the public a place for recreation except as provided in OCGA § 51-3-25. The mere fact that a property is so formed or made as to be chiefly a property used and maintained for recreational purposes, such as a beach or city park, does not put the owner of that property “in the business of entertainment or recreation [and] providing] scenic areas and comfortable facilities to attract the public to their businesses,” (Cedeno v. Lockwood, Inc., 250 Ga. 799, 802 (301 SE2d 265)), unless a charge is made. The City of Tybee Island places no charge on the public for using this sidewalk and is not in the business of providing entertainment and recreation.

Decided March 20, 1998 Barrow, Sims, Morrow, Lee & Gardner, Jordon D. Morrow, for appellant. Oliver, Maner & Gray, Patrick T. O’Connor, David S. Gruskin, for appellee.

The purpose of the Act 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.” OCGA § 51-3-20. Therefore, no reason exists to treat a municipality differently than a private owner. Ample and obvious reasons exist, however, to give an oceanside city such protection for its seaside sidewalks which are exposed to the harsh weather and tides. To exclude the City of Tybee Island from the immunity enjoyed by private owners for recreational property would place a prohibitive burden on the City and might require the City to abandon its sidewalks for recreational use or to charge a fee for their use.

Therefore, the City should be relieved of the “duty of care to keep the premises safe for entry or use by others for recreational purposes.” OCGA § 51-3-22.

Furthermore, the sidewalk gives access to and alongside the beach for recreational purposes within the meaning of the Act, and the fact that this sidewalk might also be used by persons to reach a private business or home does not place a duty of care on its owner to those who use it for recreational purposes as defined in the Recreational Property Act.

Accordingly, I must respectfully dissent.

I am authorized to state that Chief Judge Andrews joins in this dissent.