In a trip and fall action brought by a tourist against the City of Savannah, the City contended that, inter alia, the trial court erred by holding the Georgia Recreational Property Act (“the RPA”) was unconstitutional and that the law didn’t bar the plaintiff’s claims against the City.
Background
The plaintiff visited Savannah with her family in April 2019. During her stay, she and several members of her family took a trolley tour around Savannah to do some sightseeing. Following the trolley tour, she and her family visited the historic Davenport House and decided to walk back to their hotel. The plaintiff and her family’s route took them onto the sidewalk of Savannah’s National Historic Landmark District. While walking as a group, the plaintiff tripped on a raised paver in the sidewalk. In her deposition, the plaintiff said that she didn’t see the paver prior to her fall.
The City moved for summary judgment arguing that, inter alia, the Georgia Recreational Property Act barred the plaintiff’s claims against the City. O.C.G.A. § 51-3-23 states:
[A]n 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.
The trial court, however, found that questions of fact existed as to whether the sidewalk was recreational property and held that applying the RPA to the plaintiff’s claims would violate the Georgia Constitution’s equal protection clause, agreeing with the plaintiff’s argument that the application of the RPA would result in disparate treatment between Savannah tourists and local residents.
On appeal, the City contended that the trial court erred by holding that the RPA was unconstitutional and that the RPA did not bar the plaintiff’s claims against the City.
The Decision of the Court of Appeals
Presiding Judge Rickman explained that the purpose of the RPA is to encourage property owners to make their property available to the public for recreational purposes by limiting the owners’ liability. Under the RPA, “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.”
The RPA provides that recreational purposes include many activities such as “viewing or enjoying historical, archeological, scenic, or scientific sites.” In cases like this, where the property and activity thereon is of mixed use, in that commercial interests are mixed with recreational activities, the Georgia Supreme Court in 2000 adopted this balancing test to determine whether an activity is recreational:
The test requires that all social and economic aspects of the activity be examined. Relevant considerations on this question include, without limitation, the intrinsic nature of the activity, the type of service or commodity offered to the public, and the activity’s purpose and consequence. This test does not preclude consideration of the user’s subjective assessment of the activity, but . . . the user’s assessment is not the controlling factor.
As to the RPA’s constitutionality, the Supreme Court found that the RPA doesn’t unconstitutionally violate an individual’s rights to due process and equal protection. In that 2000 decision, the Supreme Court rejected due process and equal protection challenges to the RPA because it “reasonably promotes the legitimate governmental purpose of making recreational property more accessible to the public and the classification of the RPA draws between those persons injured while on recreational property and those persons injured on other premises is rationally related to this legitimate purpose.”
Turning to whether the City was entitled to immunity under the RPA, the Georgia Supreme Court has adopted the following two-part test. The true scope and nature of the landowner’s invitation to use its property must be determined, and this determination properly is informed by two related considerations:
- the nature of the activity that constitutes the use of the property in which people have been invited to engage, and
- the nature of the property that people have been invited to use.
In other words, the first part 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 part asks whether at the relevant time the property was of a sort that is used primarily for recreational purposes or primarily for commercial activity.
In that 2019 decision, the Supreme Court remanded a case back to the Court of Appeals to determine whether a landowner inviting the plaintiffs to a free, outdoor concert in a public park was generally “recreational” under the RPA. On remand, the Court of Appeals held that the defendant was entitled to the protections of the RPA, finding that the nature of the activity, attending a free concert in a public park, was recreational. Additionally, the Court found that the nature of the property at the time of the concert was likewise recreational, despite the availability of commercial activity during the event.
Here, the Court of Appeals found a factual dispute as to whether the sidewalk was offered for a recreational purpose, relying on evidence of nearby businesses in the historic district and the plaintiff’s denial that she was sightseeing at the time of her fall. The plaintiff, however, fell on a sidewalk in Savannah’s National Historic Landmark District while walking back to her hotel after taking a trolley tour.
Judge Rickman said it wasn’t important what the plaintiff denied, but what she admitted: that she chose to walk back to her hotel instead of riding the trolley because she enjoyed sightseeing and wanted to see the parks, old buildings, and big trees. In fact, the plaintiff said she was looking up a tree when she fell. This clearly and objectively reflects the purpose of her visit and the nature of her activities, the judge concluded. And the RPA specifically provides that recreational purposes include many activities such as “viewing or enjoying historical, archeological, scenic, or scientific sites.” As such, the record and the plaintiff’s own deposition testimony made it clear that she was engaging in activities that are expressly covered by statute. The nature of the activity was, objectively, recreational.
Next, looking at the nature of the property, 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.” Again, the evidence was undisputed that the sidewalk where the plaintiff fell was owned by the City and located in Savannah’s National Historic Landmark district, and that there’s no fee charged to engage in sightseeing. Although the City may gain indirect financial benefits from nearby businesses, Judge Rickman and the Court of Appeals panel concluded that the fact that there might have been an indirect commercial benefit isn’t sufficient to create a factual question as to the nature of the property.
The evidence showed that both the nature of the activity the plaintiff was engaged in, and the nature of the property that she was on, were recreational. Accordingly, the City was entitled to immunity under the RPA. The judgment was reversed. Mayor & Aldermen of Savannah v. McLamb, 2025 Ga. App. LEXIS 338 (Ga. App. August 15, 2025).
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