The MAYOR AND ALDERMEN OF THE CITY OF GARDEN CITY v. HARRIS Et Al.

FOURTH DIVISION
ELLINGTON, P. J.,
BRANCH and MERCIER, 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
November 15, 2016
In the Court of Appeals of Georgia
A16A0945. THE MAYOR AND ALDERMEN OF THE CITY OF
GARDEN CITY v. HARRIS et al.
ELLINGTON, Presiding Judge.
Willie and Kristy Harris, individually and on behalf of their minor daughter,
Riley Harris, sued The Mayor and Aldermen of the City of Garden City, Georgia (the
“City”) seeking to recover damages arising from injuries Riley suffered when, while
attending a youth football game at a stadium owned and operated by the City, she fell
through the bleachers. The City moved for summary judgment on the grounds, inter
alia, that it was immune from liability under the Recreational Property Act, OCGA
§ 51-3-20 et seq. (the “RPA”), because the stadium was available to the public for
recreational purposes. The trial court denied the City’s motion, finding that, because
the stadium was not open to the general public at no charge, the RPA did not protect
the City from liability. This Court granted the City’s application for leave to file an
interlocutory appeal. For the reasons set forth below, we agree with the trial court and
affirm.
On appeal from the grant of summary judgment, we construe the
evidence most favorably towards the nonmoving party, who is given the
benefit of all reasonable doubts and possible inferences. The party
opposing summary judgment is not required to produce evidence
demanding judgment for it, but is only required to present evidence that
raises a genuine issue of material fact. Our review of the grant or denial
of a motion for summary judgment is de novo.
(Citation and punctuation omitted.) Nguyen v. Southwestern Emergency Physicians,
P.C., 298 Ga. 75, 82 (3) (779 SE2d 334) (2015).
So viewed, the record shows that on November 10, 2012, the Harris family,
including Willie and Kristy Harris and their daughter, Riley, attended a youth football
game at the Garden City Stadium, a facility owned and maintained by the City. The
only entrance to the stadium, which was surrounded by a gate on which was placed
a “no trespassing sign,” was through a gate adjacent to the ticket booth. Spectators
over the age of six were charged an admission fee in the amount of $2 for an adult
and $1 for a student. The Harrises paid the fee for themselves and one of their older
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children. As Riley and her sister were then six years old, they were admitted without
charge.
During the game, Riley and her siblings left their seats on the upper section of
the stadium’s bleachers to visit the concession stand. Riley bought a pickle and
walked back toward her seat. As she was walking across the bleachers, she slipped
and fell between the bench seats and to ground below, suffering injury.
The Harrises, individually and on behalf of Riley, filed this personal injury
action against the City asserting claims for premises liability, negligence, and
negligence per se. The City moved for summary judgment on the ground that, among
other things, it was shielded from liability by the RPA. The trial court denied the
City’s motion, but certified its order for immediate review.
The City contends that the trial court erred in ruling that the RPA did not bar
the Harrises’s claims. “The purpose of [the RPA] 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. Under the RPA, except as provided in OCGA § 51-3-
25, “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,
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use, structure, or activity on the premises to persons entering for recreational
purposes.” OCGA § 51-3-22. Further, except as provided in OCGA § 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.
OCGA § 51-3-23. As relevant here, the charge exception to the RPA, OCGA § 51-3-
25 (2), provides that “[n]othing in this article limits in any way any liability which
otherwise exists . . . [f]or 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[.]”
Generally, “whether the RPA applies to limit the liability of the owner of a
certain property at a certain time is a question of law for the trial court.” (Punctuation
and footnote omitted.) Ga. Dept. of Transp. v. Thompson, 270 Ga. App. 265, 267 (1)
(606 SE2d 323) (2004). Here, the parties agree that the spectators at the football
game, including the Harris family, were using the stadium for a recreational purpose
within the meaning of the RPA. See Spivey v. City of Baxley, 210 Ga. App. 772, 774-
775 (437 SE2d 623) (1993) (The RPA applied to spectators at an athletic event when
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no admission charge was imposed.). At issue is whether the charge exception to the
RPA, OCGA § 51-3-25 (2), nevertheless precluded application of the RPA under the
facts of this case. The City contends that the charge exception applies only to a guest
who is charged to enter the property and that, as it is undisputed that Riley was not
assessed a fee to enter the stadium, the charge exception does not bar the City’s
immunity under the RPA. The City further contends that its collection of nominal fees
from the other entrants was not a disqualifying charge for purposes of the RPA.
We first address whether the fee imposed by the City to access the stadium was
a charge for purposes of the RPA. Under the RPA, a “charge” is defined as “the
admission price or fee asked in return for invitation or permission to enter or go upon
the land.” OCGA § 51-3-21 (1). Although the amount was nominal, the City
nevertheless required members of the public to pay to enter the stadium, and so the
fee imposed falls squarely within the statutory definition of a “charge.” The City
argues that its collection of “incidental revenue from the recreational area” does not
deprive it of the protection of the RPA. While we have found that some fees paid by
users of recreational property do not constitute a “charge” under the RPA, in those
cases the payment of the fee was not, as here, a requirement for entry onto the facility
where the injury occurred. See, e.g., South Gwinnett Athletic Assn. v. Nash, 220 Ga.
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App. 116, 117-118 (1) (469 SE2d 276) (1996) (The RPA provided immunity from
liability for injuries suffered by a person who entered a ballpark free of charge as a
spectator. The charge exception did not apply as a result of the little league
registration fee imposed by the defendant where the fee was used to provide teams
the necessities of playing in the league, including uniforms and umpires, and so did
not constitute an “admission price or fee” for entry onto the land.); Quick v. Stone
Mountain Mem. Assn., 204 Ga. App. 598, 599 (420 SE2d 36) (1992) (RPA provided
immunity for appellant’s claims as her “alleged injuries resulted from her 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.”) (citation and
punctuation omitted); Hogue v. Stone Mountain Mem. Assn., 183 Ga. App. 378, 380
(1) (358 SE2d 852) (1987) (A fee for a permit to use a vehicle in the park was not an
admission price for entry onto land and, therefore, not a charge for the recreational
use of the park.). The City also argues that the fees it collected from use of the
stadium were used to defray the maintenance cost of the facility, and that it was not
in the business of recreation or entertainment. The charge exception, however,
specifically contemplates that it applies when the owner charges for “the recreational
use” of the land, without reference to whether the owner was in the business of
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recreation or was otherwise seeking to profit from the fee. OCGA § 51-3-25.
Accordingly, we find the City’s reliance on authorities distinguishing between the
commercial and recreational use of property, and which do not rely on the application
of the charge exception to the RPA, to be unpersuasive. See, e.g., Cedeno v.
Lockwood, Inc., 250 Ga. 799, 801-802 (2) (301 SE2d 265) (1983), disapproved in
part on other grounds, Atlanta Comm. for the Olympic Games, Inc. v. Hawthorne, 278
Ga. 116, 118 (1) n. 3 (598 SE2d 471) (2004) (“[T]he fact that no fee is charged does
not assure applicability of the [RPA],” such that, if the public is invited onto the
property to further the business interests of the owner, such as the sale of food,
merchandise, or services, the side benefit to the public in the form of recreation does
not shield the owner from liability.). Rather, we conclude that the admission fee
charged by the City for entrance into the stadium was a charge within the meaning of
the RPA.
The City further contends that, because Riley entered the stadium without
payment of an admission fee, it did not owe her a duty of care that is due an invitee
or licensee. The City points out that, under the RPA, “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 . . . [c]onfer upon such person the legal
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status of an invitee or licensee to whom a duty of care is owed.” (Emphasis supplied.)
OCGA § 51-3-23 (2). It follows, the City argues, the RPA was satisfied and
immunized the City against the Harrises’ claims.1
Notwithstanding the City’s suggested construction of OCGA § 51-3-23 (2), an
owner is not entitled under the RPA to immunity from liability “[f]or injury suffered
1
Even if OCGA § 51-3-23 was not subject to OCGA § 51-3-25, we would find
the City’s reading of OCGA § 51-3-23 to be unpersuasive. The City argues that the
Legislature, by use of the words “any person” in the opening paragraph of OCGA §
51-3-23, and “such person” and “such persons,” in Subsections (2) and (3),
respectively, tied the reduction in liability afforded to the landowner to the individual
person permitted onto the premises without charge. However, the statute provides
benefits to the landowner not only under Subsection (2) and (3), but under Subsection
(1), so that “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[.]”
OCGA § 51-3-23 (1). Thus, Subsection (1) provides a broad reduction in liability that
is not limited to any specific person. If “any person,” for purposes of OCGA § 51-3-
23, refers to an individual person, then by offering free admission to a subset of
persons invited on the property the landowner would be entitled to the protections of
OCGA § 51-3-23 (1) regardless of whether the injured party paid or did not pay for
admission. The City’s suggested interpretation of OCGA § 51-3-23 runs afoul of the
rules of construction which require us to avoid creating a contradiction or absurdity
when construing a statute. See, e.g., Judicial Council of Ga. v. Brown and Gallo,
LLC, 288 Ga. 294, 297 (702 SE2d 894) (2010) (“[T]he golden rule of statutory
construction requires us to follow the literal language of the statute unless it produces
contradiction, absurdity, or such an inconvenience as to insure that the legislature
meant something else.”) (citation and punctuation omitted).
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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[.]” (Emphasis supplied.) OCGA § 51-3-25
(2). Thus, “[a]s a prerequisite to immunity under the RPA, the owner cannot charge
a fee for admission to the property.” (Emphasis supplied.) Cedeno v. Lockwood, Inc.,
250 Ga. at 801 (2) (citing OCGA § 51-3-25). In other words, “the RPA applies where
the property is open to the public for recreational purposes and the owner does not
charge an admission fee.” (Citation omitted.) Gayle v. Frank Callen Boys & Girls
Club, 322 Ga. App. 412, 414 (745 SE2d 695) (2013). See Martin v. Dempsey Funeral
Svcs.. of Ga., Inc., 319 Ga. App. 343, 345 (1) (735 SE2d 59) (2012) (“By its plain
terms, the RPA requires that the property be used for recreational purposes without
charge.”) (citation omitted); Edmondson v. Brooks County Bd. of Educ., 205 Ga. App.
662 (423 SE2d 413) (1992) (“The [RPA] applies if the landowner does not charge a
fee for admission and if the property is open to the public for recreational purposes”)
(citation omitted).
Here, notwithstanding that the City chose not to charge very young children,
including Riley, to enter the facility, the stadium was not open to the public without
charge. Accordingly, we conclude that the trial court correctly denied the City’s
motion for summary judgment.
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Judgment affirmed. Branch and Mercier, JJ., concur.
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