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PREMISES LIABILITY AND GEORGIA’S RECREATIONAL PROPERTY ACT – Part 1 of a 2-Part Series

Posted by Jonathan A. Barash

With the increase in premises liability litigation over the past 50 years, it is understandable that property owners would be cautious about letting others enter their lands for recreational purposes. In an effort to encourage property owners in Georgia to make their land and water areas available to the public for recreational purposes, Georgia, in 1965, enacted the Recreational Property Act which limits the liability of owners and occupiers of such property for injuries suffered by persons using the property. O.C.G.A. § 51-3-20 et seq.

Pursuant to the Recreational Property Act, “recreational purposes” include, but are not limited to, any of the following: “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.” O.C.G.A. § 51-3-21. The Act applies to both public and private lands.

Under ordinary premises liability law, property owners (and occupiers) in Georgia are required to exercise “ordinary care” in keeping their premises and approaches safe for “invitees” (someone who was expressly or impliedly invited onto the property). O.C.G.A. § 51-3-1. Failing to do so can subject a property owner to liability for damages for someone injured on their property. A common example of an invitee is a store customer or business guest.

Someone who is not an invitee, but is permitted to come onto the property for his or her own interests, such as a social guest or salesperson, is considered a licensee. Although property owners generally only owe licensees the duty not to wantonly and recklessly expose them to hidden perils, once the owner is aware of the licensee’s presence (or even can anticipate such presence), the owner must exercise ordinary care to protect that individual from dangerous activities being conducted on the premises or from hidden, non-static perils.

The Recreational Property Act does away with such classifications and provides that an owner of land who invites or permits persons to use their property for recreational purposes free of charge, owes no duty of care to keep the premises safe for entry or use by others or to give warning of a dangerous condition, use, structure, or activity on the premises. O.C.G.A. 51-3-22; 51-3-23. Instead, liability is limited to instances where someone is injured because of the property owner’s “willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.” O.C.G.A. §§ 51-3-23; 51-3-25. However even that exception is limited.

To be continued . . .