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

Posted by Jonathan A. Barash

Georgia courts have developed a four-part test to determine whether an owner of recreational property has acted “willfully or maliciously” in causing injuries to people using the property: First, the owner must have had knowledge that the property was being used for recreational purposes. Second, the owner must have had knowledge that a condition existed on the property involving unreasonable risk of death or serious bodily harm. Third, the condition must not have been apparent to those using the property. Finally, the owner must have chosen not to guard or warn, in disregard of the possible consequences. Significantly, in order to be found liable under this “willful or malicious” standard, the property owner must have “actual knowledge” of the hazard, rather than the much easier to prove “constructive knowledge” standard that exists in the usual premises liability situation. Further, under the Recreational Property Act, no affirmative duty to inspect the premises is imposed on the property owner.

This law strikes a balance by providing an incentive for property owners to make their land available to the public for recreational purposes, while still providing some remedy to injured parties for egregious conduct.