Release signed previously for different event by same defendant used to defeat claim at new event in Georgia

Georgia Recreational Use Statute also stops claims for slip and fall by spectator at event.

Shields v. RDM, LLC, 355 Ga. App. 409, 844 S.E.2d 297 (Ga. App. 2020)

State: Georgia: Court of Appeals of Georgia

Plaintiff: Kimberly and James Shields

Defendant: RDM, LLC d/b/a Georgia All Stars

Plaintiff Claims: negligence and loss of consortium, and seeking attorney fees, litigation costs, and damages

Defendant Defenses: Release and Recreational Use Statute

Holding: For the Defendant

Year: 2020

Summary

A mother watching her daughter perform in a gym tripped and fell breaking here leg stepping off mats. The gym raised the defenses of release, which the mother had signed at a previous event and the Georgia Recreational Use statute to successfully stop the claims of the mother.

Facts

…the record shows that Georgia All Stars offers tumbling instruction and provides competitive all-star cheerleading team programs in its Roswell, Georgia gym.3 On the day in question, November 19, 2015, Georgia All Stars hosted an exhibition of participants’ routines for parents to view in the practice area of the gym. And for this exhibition, the concrete gymnasium floor was covered with purple practice mats, and at least two vendors were there to promote their goods or services.

The Shieldses’ daughter was a participant in Special Twist, which is a “special needs all star cheer and dance team.” Special Twist is not part of the Georgia All Stars facility or teams, but is instead an independent 501 (3) (c) organization that, under previous ownership, had been permitted to practice in the Georgia All Stars facility with volunteer coaches and leadership. Georgia All Stars then adopted and continued the agreement, and Special Twist is charged nothing to use the facilities. Special Twist members were invited to participate in the exhibition on the night in question.

That evening, Special Twist performed an hour later than scheduled, and due to the number of people in attendance and the resulting crowd in the gym, spectators whose children had yet to perform were asked to wait outside. So, when Kimberly was eventually permitted inside the gym to watch Special Twist, she and “about a hundred [other] people” were “crammed into a corner” and stood to watch the performance.

When Special Twist finished performing, the coach took the members to watch other teams perform from the sidelines; but Kimberly and her daughter could not stay for the entire program due to another obligation they had early the next morning. As a result, Kimberly went to look for her daughter, who at the time was less than five feet tall. And as she was walking toward her daughter’s team, while attempting to look over other people and navigating through the crowd, Kimberly suddenly fell from the mats at a distance of what she described as two feet onto the concrete floor.

The area where Kimberly fell had not been marked off physically with rope, tape, or cones. And after she fell, a Georgia All Stars employee came over to assist Kimberly and called for an ambulance because she was unable to get up on her own. Then, at the hospital, Kimberly was diagnosed with four breaks between her leg and ankle that required surgery and many months of recovery.

Kimberly was familiar with the layout of the gym and the use of the purple mats because she watched her daughter perform or practice there on at least ten other occasions. But on the night in question, she noticed the mats were stacked in ways she had never seen before, and so she was not expecting the drop off where she fell. Nevertheless, it is undisputed that Georgia All Stars had parents sign releases containing warnings about potential hazards in the gym, and verbal warnings were given at the evening’s exhibition.

Prior to her daughter’s participation in a daily, one-week-long camp at the Georgia All Stars gym, Kimberly signed a medical-release form on July 30, 2015.5 In doing so, Kimberly understood that the medical release applied to her and her daughter, and that the document applied to her and her daughter’s participation in events at the gym.

The mother and her husband sued the gym for negligence and loss of consortium.

Analysis: making sense of the law based on these facts.

The court started out by reviewing the requirements for a contract to be effective under Georgia law.

The first step is to decide whether the language of the contract is clear and unambiguous. If so, the contract is enforced according to its plain terms, and the contract alone is looked to for meaning. Second, if the language of the contract is ambiguous in some respect, the rules of contract construction must be applied by the court to resolve the ambiguity. And finally, if ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.10

The court then looked at the four issues under Georgia’s law for a release to be valid.

Suffice it to say, the cardinal rule of contract construction is to “ascertain the intention of the parties, as set out in the language of the contract.” Additionally, it is the “paramount public policy of this state that courts will not lightly interfere with the freedom of parties to contract.” And a contracting party may “waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or affect the public interest.” Finally, exculpatory clauses in Georgia are “valid and binding, and are not void as against public policy when a business relieves itself from its own negligence.”

In this case the court found the release was valid. The plaintiff then argued the release was only valid for the camp the defendant’s daughter had participated in where the release was signed. However, the court noted there was nothing in the release that limited its application to a specific event or a date certain.

In this case, although Kimberly argues that the medical-release form was only applicable to her daughter’s participation in a temporary camp program, nothing in the language of the release limits it to any specific program, event, or time period. Indeed, the plain language of the release states that it is applicable to “the activities that I or my child engage in while on the premises or under the auspices of GA,” “all of the risks, known and unknown, connected with GA related activities,” and “participation in GA-related activities.”

Always remember, there is no reason to limit the time frame of your release, doing so simply puts an end to your defenses when there is no t need to do so.

Find the release valid for a different time and location then the plaintiff argued the court then looked at whether the Georgia Recreational Use Act, OCGA § 51-3-20 et seq applied.

Recreational Use Statutes were created by legislatures to encourage land owners to open their land to other for recreational purposes. In general, the use must be free, or with no benefit to the land owner and for recreational purposes. Under Georgia’s law that meant:

(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.” In other words, “the first asks whether the activity in which the public was invited to engage was of a kind that qualifies as recreational under the Act, and the second asks whether at the relevant time the property was of a sort that is used primarily for recreational purposes or primarily for commercial activity.”

Here, watching a child’s gymnastic routine was considered recreational by the court. There was also no fee charged by the defendant for the children to use the facility or for the parent to watch the child perform.

The plaintiffs argued that since there were vendors at the event, the defendant received a benefit for the use of the facility. The court looked at Georgia Supreme Court decisions over the type of charge and determined:

“[i]t is not the law—and we have never said that it was—that inviting people to use recreational property for recreational activities could still fail to qualify for immunity under the Act solely because the landowner had some sort of subjective profit motive in doing so.” Instead, the relevant question is whether “the landowner actually invited people onto the property (directly or indirectly) to do something ‘recreational,’ or whether people have instead been allowed onto the property to engage in commercial activity.” And in this case, the evidence shows that “both the nature of the activity and the nature of the property at the time of the [gymnastics exhibition] were purely recreational.”

Although the defendant may or may not have made some type of money from the vendors. There was no payment by the defendant to the facility to be there. There was no requirement that a purchase had to be made from a vendor or the vendors received any benefit from the exhibition. In fact, the court summed up its analysis of the facts in the case as:

To put it plainly, this case is the poster child for immunity under the RPA, and the trial court did not err in concluding that the Shieldses’ claims were barred under the statute.

The court stated both defenses would have stopped the claims of the plaintiffs. In fact, the court used an analysis I have never seen to describe the situation.

If the medical-release form is the belt of Georgia All Stars’s defense to this lawsuit, the protections afforded to property owners by the Recreational Property Act are its suspenders.

So Now What?

Too many times I see releases that have an ending date or a date when the release is no longer valid. Just the opposite needs to be made clear. That the release is valid for longer than one year. Many times, showing valid releases signed each year by the plaintiff is proof that the plaintiff knew and understood what they were signing, the risks and each release was another bar to the plaintiffs’ claims.

Do not limit the value of your release by putting a date on the release ending its effectiveness.

What do you think? Leave a comment.

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here.

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Shields v. RDM, LLC, 355 Ga.App. 409, 844 S.E.2d 297 (Ga. App. 2020)

Shields v. RDM, LLC, 355 Ga.App. 409, 844 S.E.2d 297 (Ga. App. 2020)

355 Ga.App. 409
844 S.E.2d 297

SHIELDS et al.
v.
RDM, LLC .

A20A0465

Court of Appeals of Georgia.

June 5, 2020

Costyn Law, Joseph M. Costyn, Zachary B. Johnson, for appellants.

Freeman Mathis & Gary, Wayne S. Melnick, Jason A. Kamp, for appellee.

Dillard, Presiding Judge.

Kimberly and James Shields appeal from the trial court’s grant of summary judgment to RDM, LLC d/b/a Georgia All Stars on claims based on personal injuries Kimberly sustained during an event at Georgia All Stars’s facility. Specifically, the Shieldses argue that the trial court erred in granting summary judgment to Georgia All Stars and, in doing so, finding that their claims were barred by the terms of a medical release form signed by Kimberly and the Georgia Recreational Property Act (”RPA”).1 For the reasons set forth infra , we affirm.

Viewed de novo in the light most favorable to the Shieldses (i.e. , the nonmoving parties),2 the record shows that Georgia All Stars offers tumbling instruction and provides competitive all-star cheerleading team programs in its Roswell, Georgia gym.3 On the day in question, November 19, 2015, Georgia All Stars hosted an exhibition of participants’ routines for parents to view in the practice area of the gym. And for this exhibition, the concrete gymnasium floor was covered with purple practice mats, and at least two vendors were there to promote their goods or services.

The Shieldses’ daughter was a participant in Special Twist, which is a “special needs all star cheer and dance team.” Special Twist is not part of the Georgia All Stars facility or teams, but is instead an independent 501 (3) (c) organization that, under previous ownership, had been permitted to practice in the Georgia All Stars facility with volunteer coaches and leadership. Georgia All Stars then adopted and continued the agreement, and Special Twist is charged nothing to use the facilities. Special Twist members were invited to participate in the exhibition on the night in question.

That evening, Special Twist performed an hour later than scheduled, and due to the number of people in attendance and the resulting crowd in the gym, spectators whose children had yet to perform were asked to wait outside. So, when Kimberly was eventually permitted inside the gym to watch Special Twist, she and “about a hundred [other] people” were “crammed into a corner” and stood to watch the performance.

When Special Twist finished performing, the coach took the members to watch other teams perform from the sidelines; but Kimberly and her daughter could not stay for the entire program due to another obligation they had early the next morning. As a result, Kimberly went to look for her daughter, who at the time was less than five feet tall. And as she was walking toward her daughter’s team, while attempting to look over other people and navigating through the crowd, Kimberly suddenly fell from the mats at a distance of what she described as two feet onto the concrete floor.

The area where Kimberly fell had not been marked off physically with rope, tape, or cones. And after she fell, a Georgia All Stars employee came over to assist Kimberly and called for an ambulance because she was unable to get up on her own. Then, at the hospital, Kimberly was diagnosed with four breaks between her leg and ankle that required surgery and many months of recovery.

Kimberly was familiar with the layout of the gym and the use of the purple mats because she watched her daughter perform or practice there on at least ten other occasions. But on the night in question, she noticed the mats were stacked in ways she had never seen before, and so she was not expecting the drop off where she fell. Nevertheless, it is undisputed that Georgia All Stars had parents sign releases containing warnings about potential hazards in the gym, and verbal warnings were given at the evening’s exhibition.

The Shieldses later filed suit against Georgia All Stars on October 4, 2017, asserting claims of simple negligence and loss of consortium, and seeking attorney fees, litigation costs, and damages. Georgia All Stars answered and filed a counterclaim against the Shieldses for breach of contract based on a medical release Kimberly signed some months prior to the incident in question. Georgia All Stars later moved for summary judgment on the Shieldses’ claims, contending that (1) Kimberly contractually released it, barring her claims of negligence, and (2) the claims were also barred by the Recreational Property Act.4 As a result, Georgia All Stars likewise argued that the Shieldses’ derivative claims should be dismissed. The trial court agreed that the Shieldses’ claims were barred by the medical release and the Recreational Property Act, granting summary judgment in favor of Georgia All Stars. This appeal follows.

1. For starters, the Shieldses argue that the trial court erred by concluding their claims were barred by a medical-release form Kimberly signed months prior to the night of the exhibition. We disagree.

Prior to her daughter’s participation in a daily, one-week-long camp at the Georgia All Stars gym, Kimberly signed a medical-release form on July 30, 2015.5 In doing so, Kimberly understood that the medical release applied to her and her daughter, and that the document applied to her and her daughter’s participation in events at the gym.

The medical release provides, in relevant part:

In consideration of the services of Georgia All-Star Cheerleading, Inc., its owners, agents, officers, employees, and all other persons or entities acting in any capacity on their behalf (hereinafter collectively referred to as ”GA”), I hereby agree to release, discharge, and hold harmless GA on behalf of myself, my children, my parents, my heirs, assigns, personal representative and estates as follows:

1. I understand and acknowledge that the activities that I or my child engage in while on the premises or under the auspices of GA pose known and unknown risks which could result in injury, paralysis, death, emotional distress, or damage to me, my child, to property, or to third parties. The following describes some, but not all of those risks:

Cheerleading and gymnastics, including performances of stunts and use of trampolines, entail certain risks that simply cannot be eliminated without jeopardizing the essential qualities of the activity. Without a certain degree of risk, cheerleading students would not improve their skills and the enjoyment of the sport would be diminished. Cheerleading and gymnastics expose participants to the usual risk of cuts and bruises, and other more serious risks as well. Participants often fall, sprain or break wrists and ankles, and can suffer more serious injuries. Traveling to and from shows, meets and exhibitions, raises the possibilities of any manner of transportation accidents. In any event, if you or your child is injured, medical assistance may be required which you must pay for yourself.

2. I expressly agree and promise to accept and assume all of the risks, known and unknown, connected with GA related activities, including, but not limited to performance of stunts and the use of trampolines. …

3. I hereby voluntarily release, forever discharge, and agree to hold harmless and indemnify GA from any and all liability, claims, demands, actions or rights of action, which are related to, arise out of, or are in any way connected with my child’s participation in GA-related activities.

In considering the trial court’s grant of summary judgment in favor of Georgia All Stars, we note that summary adjudication is only proper when “there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.”6 And we review a grant or denial of summary judgment de novo , viewing all evidence in the light most favorable to the nonmoving party.7 Furthermore, 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.”8

Here, the trial court’s grant of summary judgment in favor of Georgia All Stars was based, in part, on the medical release signed by Kimberly. The construction of this contract is, of course, “a question of law for the court”9 that involves three steps:

The first step is to decide whether the language of the contract is clear and unambiguous. If so, the contract is enforced according to its plain terms, and the contract alone is looked to for meaning. Second, if the language of the contract is ambiguous in some respect, the rules of contract construction must be applied by the court to resolve the ambiguity. And finally, if ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.10

Suffice it to say, the cardinal rule of contract construction is to “ascertain the intention of the parties, as set out in the language of the contract.”11 Additionally, it is the “paramount public policy of this state that courts will not lightly interfere with the freedom of parties to contract.”12 And a contracting party may “waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or affect the public interest.”13 Finally, exculpatory clauses in Georgia are “valid and binding, and are not void as against public policy when a business relieves itself from its own negligence.”14

In this case, although Kimberly argues that the medical-release form was only applicable to her daughter’s participation in a temporary camp program, nothing in the language of the release limits it to any specific program, event, or time period. Indeed, the plain language of the release states that it is applicable to “the activities that I or my child engage in while on the premises or under the auspices of GA,” “all of the risks, known and unknown, connected with GA related activities,” and “participation in GA-related activities.” Accordingly, the trial court properly granted summary judgment to Georgia All Stars on the ground that the medical-release form signed by Kimberly barred the claim for negligence related to her fall inside the gym during her daughter’s participation in an exhibition.15 Likewise, the trial court also properly granted summary judgment on the derivative claims for loss of consortium and damages.16

2. If the medical-release form is the belt of Georgia All Stars’s defense to this lawsuit, the protections afforded to property owners by the Recreational Property Act are its suspenders. Indeed, the trial court correctly determined that the Shieldses’ claims are also foreclosed by the RPA,17 whose codified purpose is “to encourage both public and private landowners to make their property available to the public for recreational purposes by limiting the owners’ liability.”18

To that end, the RPA provides, inter alia , that

[e]xcept 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 … [a]ssume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.19

The RPA defines “charge” to mean “the admission price or fee asked in return for invitation or permission to enter or go upon the land.”20 So, in order to determine whether immunity is available to a property owner under the RPA, a court must make a determination “of the true scope and nature of the landowner’s invitation to use its property.”21 And in making this determination, the analysis is “properly 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.”22 In other words, “the first asks whether the activity in which the public was invited to engage was of a kind that qualifies as recreational under the Act, and the second asks whether at the relevant time the property was of a sort that is used primarily for recreational purposes or primarily for commercial activity.”23

Here, the Shieldses do not dispute that the activity in question—attending a free exhibition of cheerleading participants’ routines—was “recreational” within the meaning of the RPA. Instead, they maintain that “a material question of fact exists [as] to the purpose behind [Georgia All Stars’s] allowance of [their] daughter’s use of its facility, which relates directly to whether the operation of [the] gym constitutes a commercial or recreational venture.” This argument is a nonstarter.

There is no evidence or suggestion that Georgia All Stars charged an admission price or fee to attend the exhibition in question. To the contrary, the evidence shows that Georgia All Stars did not charge the members of Special Twist anything to use the facilities for practice at any time.24 And the presence of vendors at the exhibition does not change our conclusion. Indeed, as our Supreme Court recently explained in Mercer University v. Stofer ,25 “[i]t is not the law—and we have never said that it was—that inviting people to use recreational property for recreational activities could still fail to qualify for immunity under the Act solely because the landowner had some sort of subjective profit motive in doing so.”26 Instead, the relevant question is whether “the landowner actually invited people onto the property (directly or indirectly) to do something ‘recreational,’ or whether people have instead been allowed onto the property to engage in commercial activity.”27 And in this case, the evidence shows that “both the nature of the activity and the nature of the property at the time of the [gymnastics exhibition] were purely recreational.”28 There is no evidence that any attendees were required to make purchases from the vendors, that the exhibition was held for the benefit of the vendors, or that Georgia All Stars in any way profited from vendor sales.29 To put it plainly, this case is the poster child for immunity under the RPA, and the trial court did not err in concluding that the Shieldses’ claims were barred under the statute.

For all these reasons, we affirm the trial court’s grant of summary judgment to Georgia All Stars.

Judgment affirmed.

Rickman and Brown, JJ., concur.

——–

Notes:

1
See OCGA § 51-3-20 et seq.

2
See, e.g. , Gayle v. Frank Callen Boys and Girls Club, Inc. , 322 Ga. App. 412, 412, 745 S.E.2d 695 (2013) (“A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” (punctuation omitted)).

3 Georgia All Stars rents the gymnasium space and is an “owner” within the meaning of the Recreational Property Act. See OCGA § 51-3-21 (3) (defining “Owner” as the “possessor of a fee interest, a tenant, a lessee, an occupant, or a person in control of the premises”).

4
See OCGA § 51-3-20 et seq.

5 Although the deposition transcripts in the appellate record indicate that various exhibits were identified and used during the depositions, including the relevant medical-release form, no exhibits were included with these depositions. Nevertheless, Kimberly read the relevant language contained in the medical-release form into the record during her deposition testimony, and Georgia All Stars included a scanned photograph of what it purports to be the medical-release form with the same language in one of its pleadings below. And because it is undisputed that the form exists and was signed by Kimberly, we will consider the language as reflected by what is in the record before us.

6
Sadlowski v. Beacon Mgmt. Servs., Inc. , 348 Ga. App. 585, 587-88, 824 S.E.2d 42 (2019) (punctuation omitted); accord
Navy Fed. Credit Union v. McCrea , 337 Ga. App. 103, 105, 786 S.E.2d 707 (2016).

7
Sadlowski , 348 Ga. App. at 588, 824 S.E.2d 42 ; McCrea , 337 Ga. App. at 105, 786 S.E.2d 707.

8
Montgomery Cty. v. Hamilton , 337 Ga. App. 500, 502-03, 788 S.E.2d 89 (2016) (punctuation omitted); accord
Sadlowski , 348 Ga. App. at 588, 824 S.E.2d 42.

9
Bd. of Cm’rs of Crisp Cty. v. City Cm’rs of the City of Cordele , 315 Ga. App. 696, 699, 727 S.E.2d 524 (2012) ; accord
Shelnutt v. Mayor of Savannah , 349 Ga. App. 499, 505 (3), 826 S.E.2d 379 (2019).

10
Bd. of Cm’rs of Crisp Cty. , 315 Ga. App. at 699, 727 S.E.2d 524 (punctuation and footnotes omitted); accord
Y.C. Dev. Inc. v. Norton , 344 Ga. App. 69, 73 (1), 806 S.E.2d 662 (2017).

11
Stanley v. Gov’t Emps. Ins. Co. , 344 Ga. App. 342, 344 (1), 810 S.E.2d 179 (2018) (punctuation omitted); see also
Yash Sols., LLC v. New York Glob. Consultants Corp. , 352 Ga. App. 127, 140 (2) (b), 834 S.E.2d 126 (2019) (same).

12
2010-1 SFG Venture LLC v. Lee Bank & Trust Co. , 332 Ga. App. 894, 897 (1) (a), 775 S.E.2d 243 (2015) (punctuation omitted); accord
Neighborhood Assistance Corp. v. Dixon , 265 Ga. App. 255, 256 (1), 593 S.E.2d 717 (2004) ; My Fair Lady of Ga. v. Harris , 185 Ga. App. 459, 460, 364 S.E.2d 580 (1987).

13
2010-1 SFG Venture LLC , 332 Ga. App. at 897 (1) (a), 775 S.E.2d 243 (punctuation omitted); accord
Dixon , 265 Ga. App. at 256 (1), 593 S.E.2d 717 ; Harris , 185 Ga. App. at 460, 364 S.E.2d 580.

14
2010-1 SFG Venture LLC , 332 Ga. App. at 897 (1) (a), 775 S.E.2d 243 (punctuation omitted); accord
Dixon , 265 Ga. App. at 256 (1), 593 S.E.2d 717 ; Harris , 185 Ga. App. at 460, 364 S.E.2d 580.

15
See
Lovelace v. Figure Salon, Inc. , 179 Ga. App. 51, 53 (1), 345 S.E.2d 139 (1986) (holding that trial court properly granted summary judgment on plaintiff’s claims for personal injury due to alleged negligence when plaintiff signed a release in which she assumed the risk of injury and the defendant disclaimed any liability, and in which the plaintiff agreed not to file suit against the defendant for any injuries she might incur). Cf.
Harris , 185 Ga. App. at 461, 364 S.E.2d 580 (“Under this factual predicate, where a cause of action is based on the alleged negligence of the club, and there being a valid contractual waiver and release for any action arising out of [the plaintiff’s] use of the facilities, which sounded in negligence, the trial court erred in denying [the defendant’s] motion for summary judgment.”).

16
See
Lovelace , 179 Ga. App. at 53 (3), 345 S.E.2d 139 (“The right of the husband to recover for loss of consortium being dependent upon the right of the wife to recover, the court did not err in granting summary judgment to defendant as to the husband’s cause of action.”).

17
See OCGA § 51-3-20 et seq.

18
S. Gwinnett Athletic Ass’n Inc. v. Nash , 220 Ga. App. 116, 117 (1), 469 S.E.2d 276 (1996) ; accord
Gwinnett Cty., Ga. v. Ashby , 354 Ga.App. ––––, ––––, 842 S.E.2d 70, 73 (2020) ; see OCGA § 51-3-20 (“The purpose of this article 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.”).

19 OCGA § 51-3-23 (3) (emphasis supplied).

20 OCGA § 51-3-21 (1).

21
Mercer Univ. v. Stofer , 306 Ga. 191, 191, 830 S.E.2d 169 (2019).

22
Id. at 191, 830 S.E.2d 169.

23
Id. at 196 (2), 830 S.E.2d 169.

24
See
Nash , 220 Ga. App. at 117-18 (1), 469 S.E.2d 276 (“In the current case, the Association charges a little league registration fee, although this fee is waived as to any child in need of free service. The fee covers expenses such as uniforms for the children, umpires, lights, water and sanitation. Because the fee is needed to defray the costs of operating the league, and is not an admission price required for permission to enter onto the land, it is not a charge to the public as contemplated by the Act.”).

25 306 Ga. 191, 830 S.E.2d 169 (2019).

26
Id. at 200 (3), 830 S.E.2d 169 ; accord
Mercer Univ. v. Stofer , 354 Ga. App. 458, 461, 841 S.E.2d 224, 226 (1) (2020) (“Importantly, a landowner’s subjective profit motivations are irrelevant to the analysis.”).

27
Stofer , 306 Ga. at 196 (2), 830 S.E.2d 169.

28
Stofer , 354 Ga. App. at 461, 841 S.E.2d 224, 227-28 (1).

29
See id. at 462, 841 S.E.2d 224, 228 (1) (“To the extent that the concert series may have increased Mercer [University]’s name recognition and good will in the community, potential student interest in attending the university, or the likelihood that it would receive future grant funding, such speculative considerations and subjective motivations are not relevant to our analysis. Notably, there is no evidence that Mercer made a profit from the vendors, the sponsors, or … branded give-aways, nor is there evidence that it received a direct financial benefit from the concert series whatsoever. The fact that there might have been an indirect commercial benefit is not sufficient to create a factual question.” (citation omitted)).


Non-governmental park not liable under Georgia Recreational Use Statute because cyclists failed to negotiate a barricade. The dangerous condition was open, obvious and visible to all including the deceased.

Because cyclists failed to look up and did not see the barricades in time, does not change the fact the barricades were visible for hundreds of feet.

Stone Mountain Memorial Association v. Amestoy, 337 Ga. App. 467; 788 S.E.2d 110; 2016 Ga. App. LEXIS 358

State: Georgia; Court of Appeals of Georgia

Plaintiff: Nancy Amestoy

Defendant: Stone Mountain Memorial Association

Plaintiff Claims: (1) was liable for Martin’s death due to its failure to warn of the allegedly dangerous condition of the barricades, (2) had actual knowledge that the barricades posed a risk of serious bodily injury or death, and (3) willfully failed to warn of the alleged danger (despite knowing of the risk posed by the barricades).

Defendant Defenses: Georgia Recreational Use Statute

Holding: For the Defendant at trial Court, Plaintiff on appeal 

Year: 2016

Summary

The Georgia Recreational Use Statute extends immunity to non-governmental landowners. Here a cyclist died after failing to look up and see barricades blocking a road. Because the barricades were open and obvious, the Recreational Use Statute protected the landowner from suit. 

Facts 

The deceased was on a bike ride. The road he was riding had been closed for a foot race. The closure was  accomplished by two saw horse barricades. The deceased in attempting to negotiate between them fell suffering head injuries, while wearing a helmet, and died.

…between 7:30 and 7:45 a.m. on the day in question, officers with SMMA’s public-safety department engaged in temporary traffic-control efforts on portions of Stone Mountain Park’s Robert E. Lee Boulevard in anticipation of a 5k walk/run event that was scheduled to begin at 8:00 a.m. These temporary traffic-control efforts consisted of two saw-horse style barricades placed  side-by-side across the road’s southbound lanes, spanning approximately ten-feet wide with an approximately one-and-a-half foot gap between them. Both barricades bore orange and white stripes and “do not enter” signs.

It appeared to witnesses that the deceased did not look up until the last minute to see the barricades. 

…Martin Amestoy was observed riding his bicycle toward the barricades at what a witness believed was a “safe, normal speed”; however, Amestoy’s head was down. Amestoy then traveled between the barricades, striking the inside corner of the lefthand barricade with his handlebar, and was thrown forward off of his bike.3 Although he was wearing a helmet, Amestoy suffered severe head trauma and died later that day. 

The plaintiff, wife of the deceased, sued for:

(1) was liable for Martin’s death due to its failure to warn of the allegedly dangerous condition of the barricades, (2) had actual
knowledge that the barricades posed a risk of serious bodily injury or death, and (3) willfully failed to warn of the alleged danger (despite knowing of the risk posed by the barricades).

The defendant filed a motion for summary judgment stating it was not liable because of the Georgia Recreational Use Act. The plaintiff argued that the exception to the act applied, if the landowner of and did not warn of a dangerous condition. The Trial court agreed and the defendant immediately appealed that order. 

SMMA responded and filed a motion for summary judgment, contending that it was immune from suit under the RPA. The trial court ultimately denied SMMA’s motion when it concluded that genuine issues of material fact remained as to whether (1) the barricades were a dangerous condition and (2) SMMA had actual knowledge that this condition was dangerous.

Analysis: making sense of the law based on these facts.

The defendant appealed the decision based upon the facts that:

… (1) there was no evidence that it had actual knowledge of a dangerous condition, (2) the allegedly dangerous condition was
open and obvious as a matter of law, and (3) there was no evidence that it willfully failed to warn of the allegedly dangerous condition. Because the allegedly dangerous condition–i.e., the barricades blocking the southbound lanes of Robert E. Lee Boulevard–was open and obvious as a matter of law….

Under the Georgia Recreational Use Act, the landowner owes no duty of care to keep the premises safe for others entering the land for recreational purposes.

In enacting the RPA, the General Assembly sought to “encourage property owners to make their property available to the public for recreational purposes by limiting the owners’ liability.”8 In this regard, 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.”

There is a liability for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity. Under Georgia’s law:

…”willful failure” involves “a conscious, knowing, voluntary, intentional failure, rather than a mere inadvertent, accidental,  involuntary, inattentive, inert, or passive omission.” And malice requires either “an actual intent to cause the particular harm produced or the wanton and [willful] doing of the act with an awareness of the plain and strong likelihood that harm may result.”  Thus, in order for the “willful or malicious failure” exception to apply, Nancy Amestoy must show that the property owner  (SMMA) had actual knowledge that (1) the property was being used for recreational purposes; (2) a condition existed involving unreasonable risk of death or serious bodily harm; (3) the condition was not apparent to those using the property; and (4) having the foregoing knowledge, the property owner chose not to warn users in disregard of the possible con-sequences. Constructive knowledge is insufficient to meet this burden of proof, and the property owner has no duty to inspect the property. Importantly, the plaintiff must satisfy each prong of this four-part test to succeed against a recreational property owner under this exception.

The court held the plaintiff failed to produce any evidence to create a jury question on whether or not the condition was not apparent to those using the property, the third prong of the test.

The court cited witness statements and statements from the investigators that the barriers where visible at least for hundreds of feet. 

Considering the above testimony, Nancy Amestoy presented no evidence that SMMA had actual knowledge that the barricades were not apparent to park users when they were open and obvious, as overwhelmingly demonstrated by the foregoing testimony and photographic evidence.

The Appellate Court reversed the trial court and granted the defendant’s motion for summary judgment based on the Georgia Recreational Use Statute

So Now What? 

The first take away is the Georgia Recreational Use Statute protects parks owned non-governmental landowners from suit. The second is, even though the statute has an exception for “willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity,” the landowner must have actual knowledge, not just constructive knowledge of the dangerous condition.

Here because the barricades were visible for hundreds of feet, the barricades did not constitute a dangerous condition. 

If you are a cyclist, look up once in a while. 

What do you think? Leave a comment.

 Copyright 2017 Recreation Law (720) 334 8529

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Georgia Recreational Use Statute

 OFFICIAL CODE OF GEORGIA
ANNOTATED

 TITLE 51.  TORTS

 CHAPTER 3.  LIABILITY OF OWNERS AND OCCUPIERS OF LAND

 ARTICLE 2.  OWNERS OF PROPERTY USED FOR RECREATIONAL
PURPOSES

 § 51-3-20.  Purpose of article

§ 51-3-21.  Definitions

§ 51-3-22.  Duty of owner of land to those using same for recreation generally

§ 51-3-23.  Effect of invitation or permission to use land for recreation

§ 51-3-24.  Applicability of Code Sections 51-3-22 and 51-3-23 to owner of land leased to state or subdivision for recreation

§ 51-3-25.  Certain liability not limited

§ 51-3-26.  Construction of article

§ 51-3-20.  Purpose of article

The purpose of this article 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.

§ 51-3-21.  Definitions

As used in this article, the term:

(1) “Charge” means the admission price or fee asked in return for invitation or permission to enter or go upon the land.

(2) “Land” means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty. 

(3) “Owner” means the possessor of a fee interest, a tenant, a lessee, an occupant, or a person in control of the premises.

(4) “Recreational purpose” includes, but is not limited to, any of the following or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, aviation activities, nature study, water skiing, winter sports, and viewing or enjoying historical, archeological, scenic, or scientific sites. 

§ 51-3-22. Duty of owner of land to those using same for recreation generally 

Except as specifically recognized by or provided in Code Section 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, use, structure, or activity on the premises to persons entering for recreational purposes.

§ 51-3-23.  Effect of invitation or permission to use land for recreation 

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.

§ 51-3-24.  Applicability of Code Sections 51-3-22 and 51-3-23 to owner of land leased to state or subdivision for recreation 

Unless otherwise agreed in writing, Code Sections 51-3-22 and 51-3-23 shall be deemed applicable to the duties and liability of an owner of land leased to the state or any subdivision thereof for recreational purposes.

§ 51-3-25.  Certain liability not limited 

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

(1) For willful or malicious failure 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 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. 

§ 51-3-26.  Construction of article 

Nothing in this article shall be construed to: 

(1) Create a duty of care or ground of liability for injury to persons or property; or

(2) Relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this article to exercise care in his use of the land and in his activities thereon or from the legal consequences of failure to employ such
care.
 

 


Stone Mountain Memorial Association v. Amestoy, 337 Ga. App. 467; 788 S.E.2d 110; 2016 Ga. App. LEXIS 358

Stone Mountain Memorial Association v. Amestoy, 337 Ga. App. 467; 788 S.E.2d 110; 2016 Ga. App. LEXIS 358

Stone Mountain Memorial Association v. Amestoy.

A16A0056.

COURT OF APPEALS OF GEORGIA

337 Ga. App. 467; 788 S.E.2d 110; 2016 Ga. App. LEXIS 358

June 21, 2016, Decided

HEADNOTES Georgia Advance Headnotes

(1) Torts. Real Property Torts. General Premises Liability. The wife of a bicyclist who died of a head injury after striking a barricade that had been placed across the road in a public park to protect runners in a road race failed to produce sufficient evidence to create a jury question as to the park owner’s actual knowledge that the barricades were not apparent to those using the property as required to prove an exception to immunity under OCGA § 51-3-25 (1) of the Recreational Property Act; the road was straight and open and the barricades were highly visible.

COUNSEL: Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Kirsten S. Daughdril, Senior Assistant Attorneys General, Kristine K. Hayter, Assistant Attorney General, for appellant.

Childers, Schleuter & Smith, William A. Parker, Jr., for appellee.

JUDGES: [***1] DILLARD, Judge. Phipps, P. J., and Peterson, J., concur.

OPINION BY: DILLARD

OPINION

[*467] [**111] Dillard, Judge.

Stone Mountain Memorial Association (“SMMA”) appeals from the trial court’s denial of its motion for summary judgment in a premises-liability and wrongful-death action brought by Nancy Amestoy following her husband Martin’s tragic death in a bicycling accident at Stone Mountain Park. Specifically, SMMA contends that the trial court erred in denying its motion for summary judgment because it is immune from liability under the Recreational Property Act (“RPA”).1 Because we agree with SMMA that the RPA immunizes it from liability, we reverse.

1 See OCGA § 51-3-20 et seq.; see also OCGA § 51-3-20 [HN1] (“The purpose of this article 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.”).

Viewed in the light most favorable to Nancy Amestoy (i.e., the nonmoving party),2 the record reflects that between 7:30 and 7:45 a.m. on the day in question, officers with SMMA’s public-safety department engaged in temporary traffic-control efforts on portions of Stone Mountain Park’s Robert E. Lee Boulevard in anticipation of a 5k walk/run event that [***2] was scheduled to begin at 8:00 a.m. These temporary traffic-control efforts consisted of two saw-horse style barricades placed side-by-side across the road’s southbound lanes, spanning approximately ten-feet wide with an approximately one-and-a-half foot gap between them. Both barricades bore orange and white stripes and “do not enter” signs.

2 See, e.g., Holcomb v. Long, 329 Ga. App. 515, 517 (765 SE2d 687) (2014).

The SMMA major stationed at these barricades manned the post for a few minutes after they were erected, but he left suddenly when [*468] overcome by an urgent need to use the restroom. While the major was in the restroom, the SMMA captain–who was stationed at a separate traffic-control post–saw two bicyclists maneuver around the barricades at the major’s post. Then, six or seven minutes later, Martin Amestoy was observed riding his bicycle toward the barricades at what a witness believed was a “safe, normal speed”; however, Amestoy’s head was down. Amestoy then traveled between the barricades, striking the inside corner of the lefthand barricade with his handlebar, and was thrown forward off of his bike.3 Although he was wearing a helmet, Amestoy suffered severe head trauma and died later that day.

3 Nancy Amestoy alleges that her husband may [***3] have been attempting to avoid a collision with the barricades by trying to ride between them. Officers could not speak to Martin after the collision to ascertain his version of events because he was unconscious. But Nancy’s expert opined that “once [Martin] was aware of [the barricades,] his only path of travel was between the two barricades.”

Thereafter, Nancy Amestoy filed suit against SMMA in her capacity as surviving spouse and on behalf of Martin’s estate. In doing so, she asserted that SMMA (1) was liable for Martin’s death due to its failure to warn of the allegedly dangerous condition of the barricades, (2) had actual knowledge that the barricades posed a risk of serious bodily injury or death, and (3) willfully failed to warn of the alleged danger (despite knowing of the risk posed by the barricades). SMMA responded and filed a motion for summary judgment, contending that it was immune [**112] from suit under the RPA. The trial court ultimately denied SMMA’s motion when it concluded that genuine issues of material fact remained as to whether (1) the barricades were a dangerous condition and (2) SMMA had actual knowledge that this condition was dangerous. The trial court did, however, [***4] certify the denial of SMMA’s motion for immediate review, and this Court granted SMMA’s application for interlocutory appeal. This appeal follows.

At the outset, we note that [HN2] on appeal from the denial of a motion for summary judgment, we conduct a de novo review of the record.4 [HN3] To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmovant, entitle the moving party to judgment as a matter of law.5 A defendant may do this by showing the trial court that the record [*469] reveals no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case.6 Indeed, if there is no evidence sufficient to create a genuine issue of material fact as to “any essential element of the plaintiff’s claim, that claim tumbles like a house of cards.”7 With these guiding principles in mind, we turn now to SMMA’s arguments on appeal.

4 See Gayle v. Frank Callen Boys & Girls Club, 322 Ga. App. 412, 412 (745 SE2d 695) (2013) (“A de novo standard of review applies to an appeal from a grant [or denial] of summary judgment[.]” (punctuation omitted)).

5 See id. [HN4] (“Summary judgment is proper when there is no genuine issue of material [***5] fact and the movant is entitled to judgment as a matter of law.” (punctuation omitted)).

6 See Farris v. First Fin. Bank, 313 Ga. App. 460, 462 (722 SE2d 89) (2011) [HN5] (“This burden is met by a defendant when the court is shown that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case.” (punctuation omitted)).

7 La Quinta Inns, Inc. v. Leech, 289 Ga. App. 812, 812 (658 SE2d 637) (2008) (punctuation omitted).

SMMA argues that the trial court erred in denying its motion for summary judgment based upon immunity under the RPA because (1) there was no evidence that it had actual knowledge of a dangerous condition, (2) the allegedly dangerous condition was open and obvious as a matter of law, and (3) there was no evidence that it willfully failed to warn of the allegedly dangerous condition. Because the allegedly dangerous condition–i.e., the barricades blocking the southbound lanes of Robert E. Lee Boulevard–was open and obvious as a matter of law, SMMA was entitled to summary judgment.

[HN6] In enacting the RPA, the General Assembly sought to “encourage property owners to make their property available to the public for recreational purposes by limiting the owners’ liability.”8 In this regard, OCGA § 51-3-22 provides [***6] 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.”

8 Gayle, 322 Ga. App. at 413 (punctuation omitted). [HN7] The RPA applies when the property is “open to the public for recreational purposes and the owner does not charge an admission fee.” Id. at 414. It is undisputed between the parties that Stone Mountain Park is open to the public for recreational purposes and does not charge an admission fee. See OCGA § 51-3-21 (a) (” ‘Charge’ means the admission price or fee asked in return for invitation or permission to enter or go upon the land.”); see also Hogue v. Stone Mtn. Mem. Ass’n, 183 Ga. App. 378, 380 (1) (358 SE2d 852) (1987) (holding that initial motor-vehicle fee was “a permit for the use of a vehicle in the park” and that “the trial court was authorized to conclude as a matter of law that this fee did not constitute a charge for the recreational use of the parkland itself”).

[HN8] Notwithstanding the RPA’s general provision for immunity from liability, there is an exception “[f]or willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.”9 But as we have previously held, [***7] “willful failure” involves “a conscious, knowing, voluntary, intentional failure, rather than a mere inadvertent, accidental, involuntary, inattentive, inert, or passive [*470] [**113] omission.”10 And malice requires either “an actual intent to cause the particular harm produced or the wanton and [willful] doing of the act with an awareness of the plain and strong likelihood that harm may result.”11 Thus, in order for the “willful or malicious failure” exception to apply, Nancy Amestoy must show that the property owner (SMMA) had actual knowledge that (1) the property was being used for recreational purposes;12 (2) a condition existed involving unreasonable risk of death or serious bodily harm; (3) the condition was not apparent to those using the property; and (4) having the foregoing knowledge, the property owner chose not to warn users in disregard of the possible consequences.13 Constructive knowledge is insufficient to meet this burden of proof, and the property owner has no duty to inspect the property.14 Importantly, the plaintiff must satisfy each prong of this four-part test to succeed against a recreational property owner under this exception.15

9 OCGA § 51-3-25 (1); see also Gayle, 322 Ga. App. at 415.

10 Collins v. City of Summerville, 284 Ga. App. 54, 56 (643 SE2d 305) (2007) (punctuation omitted); accord Cooley v. City of Carrollton, 249 Ga. App. 387, 388 (547 SE2d 689) (2001); Spivey v. City of Baxley, 210 Ga. App. 772, 773 (437 SE2d 623) (1993).

11 Collins, 284 Ga. App. at 56 (punctuation [***8] omitted); accord Gayle, 322 Ga. App. at 415.

12 The parties do not dispute that the first prong of this test is satisfied.

13 See Gayle, 322 Ga. App. at 415 (listing the four requirements); Collins, 284 Ga. App. at 56 (same); Spivey, 210 Ga. App. at 773 (same); Quick v. Stone Mtn. Mem. Ass’n, 204 Ga. App. 598, 599 (420 SE2d 36) (1992) (same); see also Edmondson v. Brooks Cty. Bd. of Educ., 205 Ga. App. 662, 663 (423 SE2d 413) (1992) (noting that, in the fourth prong, ” ‘[t]his knowledge’ refers to the three previously listed facts of which the owner must have actual knowledge in order to be liable for ‘choosing not to guard or warn’ ” (punctuation omitted)).

14 See Collins, 284 Ga. App. at 56 (“Constructive knowledge is not sufficient, and no duty to inspect is imposed on the property owner.”); Ga. Dep’t of Transp. v. Thompson, 270 Ga. App. 265, 269 (2) (a) (606 SE2d 323) (2004) (“This test excludes either constructive knowledge or a duty to inspect.” (punctuation omitted)).

15 See, e.g., Lee v. Dep’t of Nat’l Res., 263 Ga. App. 491, 493-94 (3) (588 SE2d 260) (2003) (holding that, despite uncontroverted satisfaction of first prong, failure to satisfy other prongs was fatal to claim); Edmondson, 205 Ga. App. at 663 (noting that, in holding that RPA immunized defendant from liability, the issue of liability under the RPA is “resolved by a four-part test” and the defendants “rel[ied] on the absence of the third prong of the test”).

At the outset, [HN9] we reject any suggestion that the four-part test does not require actual knowledge as to each prong. Although we have not always been precise in our recitation of the analytical framework,16 the notion that actual knowledge is not required by the foregoing [***9] four-part test is belied by the plain language of the test adopted by this Court in McGruder v. Georgia Power Co.,17 by our [*471] explanation and application of the test in subsequent cases,18 and even by other jurisdictions that have construed the test employed in Georgia.19 (1) And here, Nancy [**114] Amestoy failed to produce any evidence to create a jury question as to the third prong of the test–that is, that SMMA had actual knowledge that the barricades were not apparent to those using the property.20 As the trial court noted in its order, the road leading up to the barricades is straight and open. Indeed, witnesses observed two other cyclists negotiate their bicycles around the barricades only minutes before Martin Amestoy’s accident. Additionally, not only does the photographic evidence demonstrate that the barricades were highly visible, but testimony by numerous SMMA public-safety personnel established that they believed this to be the case.

16 See Gayle, 322 Ga. App. at 415; Collins, 284 Ga. App. at 56; Norton v. Cobb Cty., 284 Ga. App. 303, 307 (3) (643 SE2d 803) (2007) (physical precedent only).

17 126 Ga. App. 562, 563-64 (1) (191 SE2d 305) (1972) (“In the context of the whole statute, it would seem that a wilful failure to guard or warn would require actual knowledge of the owner that its property is being used for recreational purposes; that a condition exists involving [***10] 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.”), reversed on other grounds by 229 Ga. 811 (194 SE2d 440) (1972); see also Ga. Marble Co. v. Warren, 183 Ga. App. 866, 867 (1) (360 SE2d 286) (1987) (adopting the four-part test as previously set forth in McGruder v. Ga. Power Co., and noting that “[a]lthough the test was turned into dicta by the Supreme Court’s ruling that the RPA was not applicable in that case, it is sound”).

18 See Ray v. Ga. Dep’t of Nat’l Res., 296 Ga. App. 700, 702 (1) (675 SE2d 585) (2009); Lee, 263 Ga. App. at 493-94 (3); Thompson, 270 Ga. App. at 269 (2) (a); S. Gwinnett Athletic Ass’n v. Nash, 220 Ga. App. 116, 119 (1) (469 SE2d 276) (1996); Spivey, 210 Ga. App. at 773; Quick, 204 Ga. App. at 599; Edmondson, 205 Ga. App. at 663; Warren, 183 Ga. App. at 867 (1).

19 Hendrickson v. Ga. Power Co., 80 FSupp2d 1374, 1379 (III) (B) (M.D. Ga. 2000) (acknowledging that this Court uses a four-part test, and reciting test so as to make clear that defendant must have “actual knowledge” as to the first three prongs); Ex parte City of Geneva, 707 So2d 626, 629 n.2 (Ala. 1997) (construing Alabama’s recreational-use statute and observing that “the four-part ‘actual knowledge’ test of [Ala. Code] § 35-15-24 [(which applies ‘actual knowledge’ to the first three prongs of test)] appears likely to be a codification of the test employed by the state courts of Georgia when determining whether a noncommercial recreational landowner may be liable for ‘willful … failure to guard or warn against a dangerous condition, use, [***11] structure, or activity.’ “).

20 See Ray, 296 Ga. App. at 702 (2) (“The … third prong of this test was not met, because no evidence was presented that appellees had actual knowledge of a condition that was not apparent to persons using the property.”); Nash, 220 Ga. App. at 119 (1) (reversing denial of motion for summary judgment when, inter alia, “even assuming for the sake of argument that the unfinished bleachers presented a dangerous condition, there is no evidence that the [defendant] had any knowledge that this condition was not apparent to people using the property”); Edmondson, 205 Ga. App. at 663 (“[The third] prong requires plaintiffs to show that defendants actually knew that the dangerous condition of the merry-go-round was not apparent to those using the playground.”).

The testimony from SMMA personnel included that of a corporal who assisted in the investigation after the accident, and who testified that (1) the “barricades were plainly visible for quite a distance,” (2) the barricades were visible “for hundreds of feet,” (3) the sun was shining on the morning in question, and (4) there was “a great deal of visibility.” Likewise, an SMMA officer who performed an accident investigation, including taking various measurements to construct a to-scale diagram and [***12] conducting a “conspicuity test,” estimated that [*472] the barricades would have been visible from “a couple hundred yards” up Robert E. Lee Boulevard. More specifically, the major who was stationed at the barricades estimated that the distance at which they were visible would have been 200 to 250 feet, though he did acknowledge that on the morning in question, “[t]he way the sun was up, [a cyclist or motorist] would possibly [have] been looking into the sun.” Lastly, the SMMA captain calculated that the distance from the first line of sight to the barricades was one-tenth of a mile, or 528 feet, concluding that the barricades were “highly visible.” The captain also echoed other testimony that “[i]t was a clear day, the sun was out, [and] visibility was good.”

Finally, Nancy Amestoy’s expert testified that from his position and speed on a bicycle, Martin Amestoy likely would have seen the gap between the barricades when he was approximately fifteen feet away, giving him about one-half of a second to react. But when questioned about the distance from which the barricades themselves would have been visible, the expert testified that he did not “have an answer for that” and that he did not “know how far [***13] back they would have been seen,” though he opined that it would not have been “very far.” He also testified that he had no way of knowing what Martin Amestoy was doing “10, 20, [or] 50 feet prior to the barricades.”

Considering the above testimony, Nancy Amestoy presented no evidence that SMMA had actual knowledge that the barricades were not apparent to park users when they were open and obvious,21 as overwhelmingly [**115] demonstrated by the foregoing testimony and photographic evidence.22 Indeed, as previously noted, there is no evidence [*473] that SMMA officials knew that the barricades were not apparent.23 Although Nancy Amestoy claims that SMMA stationed a major at the barricades to provide warnings to approaching motorists and bicyclists and that this officer had actual knowledge of the need to provide such warnings, there is no evidence to substantiate these assertions. Instead, the major testified that the objective of his post was to “turn the cars around, bicyclists around.” Additionally, the SMMA captain testified that the purpose of the major’s post was “to block the road, to keep cars from going down into that area where the people would be crossing” and “protect the walkers,”24 not to “protect [***14] bicyclists and cars.” And when further asked if there was “any interest in protecting the bicyclists or the vehicles from entering that area,” the captain responded that “[o]ur objective is to protect everybody in the park.” But this diplomatic answer is a far cry from testimony that would create a genuine issue of material fact as to whether SMMA officials had actual knowledge that the barricades themselves were not apparent–or open and obvious–to park users.

21 Cf. Turkett v. Cent. of Ga. Ry. Co., 117 Ga. App. 617, 617 (161 SE2d 362) (1968) (holding that court erred in dismissing petition alleging negligence when plaintiff collided with warning device placed in roadway by defendant while traveling in the dark, in the rain, and under circumstances of poor visibility; and obstruction was unlighted, obscured from plaintiff’s vision by its placement, and could not be seen until within 10 feet); Rogers v. Johnson, 94 Ga. App. 666, 666 (syllabus), 677 (1), 678 (3) (96 SE2d 285) (1956) (sustaining verdict for plaintiff when decedent was traveling roadway at night in car that collided with defendant’s vehicle, which was hauling house-trailer, nearly blocking the entire roadway after making a lefthand turn); Trammell v. Matthews, 84 Ga. App. 332, 338-39 (1) (66 SE2d 183) (1951) (holding that there was a question for the jury as to negligence when plaintiff alleged, inter alia, “that had the defendant placed proper warnings at the [***15] point where the detour went around the place where the bridge was out, the driver of the car … would not have passed the detour and gone through the partial road block and then into the place where the bridge was out,” and when it appeared from the plaintiff’s petition “that the way ahead of the driver of this car was not clear, that it was yet dark, and the road was not straight as one approached this partial road block from the [s]outh; that the detour was the same color as the paved road; [and] that the partial road block was not sufficient and adequate to prevent one from assuming that the road could be used”).

22 See Metro. Atlanta Rapid Transit Auth. v. Fife, 220 Ga. App. 298, 299, 300 (1) (469 SE2d 420) (1996) (noting that photographic evidence showed that allegedly dangerous condition of drainage culvert was “plainly visible to anyone standing at the curb,” and holding that condition was open and obvious); Warren, 183 Ga. App. at 868 (1) (“Photographs of the stream illustrate that even a first time visitor to the stream would perceive that the stream’s bed was or at least was likely to be rocky. … The rocky condition of the terrain in and about the stream was open and obvious.”); see also Engleson v. Little Falls Area Chamber of Commerce, No. Civ. 101-102, 2002 U.S. Dist. LEXIS 23093, 2002 WL 31689432, at *3 (3) (D. Minn. 2002) (noting, in case involving a plaintiff who tripped over an orange traffic cone, that “[t]he test for obviousness is an [***16] objective test that examines whether the danger was in fact visible, rather than whether the injured party actually saw the danger,” and concluding that not only were traffic cones obvious but that defendants “could not have anticipated harm from the cones because traffic cones are, themselves, warning markers”).

23 See Ray, 296 Ga. App. at 702 (1) (“The … third prong of this test was not met, because no evidence was presented that appellees had actual knowledge of a condition that was not apparent to persons using the property.”); Edmondson, 205 Ga. App. at 663 (“[The third] prong requires plaintiffs to show that defendants actually knew that the dangerous condition of the merry-go-round was not apparent to those using the playground.”).

24 (Emphasis supplied.)

Furthermore, even if we were to assume that Martin Amestoy could not see the barricades from his position and speed on his bicycle or due to the sun’s location at the exact moment of his accident on the morning in question, [HN10] whether a dangerous condition is open and obvious depends on the objective knowledge of a reasonable person, not on the plaintiff’s subjective knowledge.25

25 See Morris v. Clark Equip. Co., 904 FSupp. 1379, 1383 (II) (B) (M.D. Ga. 1995) (“In determining whether a danger was open and obvious to the injured party, the court should [***17] use an objective point of view, as opposed to subjective, since the user’s perceptions are irrelevant.”); see also Weatherby v. Honda Motor Co., 195 Ga. App. 169, 171 (393 SE2d 64) (1990) (“In determining, under the ‘open and obvious rule,’ whether the peril from which an injury results is latent or patent, the decision is made on the basis of an objective view … , and the subjective perceptions of the user or injured party are irrelevant.”), overruled on other grounds by Ogletree v. Navistar Intern. Transp. Corp., 269 Ga. 443, 443-44 (500 SE2d 570) (1998) (holding that “open and obvious danger” rule is not applicable in cases of alleged design defect). See generally 62A Am. Jur. 2d Premises Liability § 713 (2016) [HN11] (“Whether a condition is open and obvious, for premises liability purposes, depends on the objective knowledge of a reasonable person, not the plaintiff’s subjective knowledge. The test for what constitutes an ‘obvious’ danger is an objective test: the question is not whether the injured party actually saw the danger, but whether it was in fact visible.” (footnotes omitted)).

[*474] [**116] In light of the foregoing, we must reverse the trial court’s denial of SMMA’s motion for summary judgment.26

26 See Nash, 220 Ga. App. at 119 (1) (reversing denial of motion for summary judgment when, inter alia, “even assuming for the sake of argument that the unfinished bleachers presented a dangerous condition, there is no [***18] evidence that the [defendant] had any knowledge that this condition was not apparent to people using the property”).

Judgment reversed. Phipps, P. J., and Peterson, J., concur.