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HOGUE v. STONE MOUNTAIN MEMORIAL ASSOCIATION.
73866.
BANKE, Presiding Judge.
Action for damages. DeKalb Superior Court. Before Judge Tillman.
Bonnie Hogue sued the Stone Mountain Memorial Association to recover for personal injuries she allegedly sustained when she "stepped off an abrupt, unseen ledge" while walking to a "laser show" on the grounds of Stone Mountain Park. She appeals the grant of Stone Mountain's motion for summary judgment, contending that the trial court erred in concluding as a matter of law that her claim was barred by the Recreational Property Act, OCGA 51-3-20 et seq. For purposes of this appeal, Mrs. Hogue Concedes that her claim is predicated entirely on simple negligence and that, as a consequence, if the trial court was correct in concluding that the Recreational Property Act was applicable, it was also correct in granting Stone Mountain's motion for summary judgment.
In essence, the Recreational Property Act specifies that "an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes" may not be held liable for personal injuries resulting from unsafe or defective conditions existing on the premises, unless such injuries resulted from "willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity. . . ." OCGA 51-3-23; 51-3-25 (1). See also OCGA 51-3-22. " '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, nature study, water skiing, winter sports, and viewing or enjoying historical, archeological, scenic, or scientific sites." OCGA 51-3-21(4).
In reliance on Stone Mountain Memorial Assn. v. Herrington, 225 Ga. 746, 747 (171 SE2d 521) (1969), and Brannon v. Stone Mountain Memorial Assn., 165 Ga. App. 120 (299 SE2d 176) (1983), the trial court determined that a fee which the appellant and her husband had been required to pay upon their initial arrival at the park was not an admission fee or a charge for the recreational use of the park property itself but rather a fee for the privilege of bringing their motor vehicle into the park. The appellant contends that Herrington and Brannon are distinguishable from the present case in that, at the time the trial court ruled on the summary judgment motion in the present case, Stone Mountain had not yet submitted any evidence warranting such a characterization of the fee in question. Additionally, the appellant contends that, regardless of whether an entry fee was or was not charged, a jury would be entitled to find the Recreational Property Act inapplicable based on the "business interests" test set forth in Cedeno v. Lockwood, Inc., 250 Ga. 799 (301 SE2d 265) (1983).
1. We must disagree with the appellant's contention that there was no evidence of record at the time the trial court ruled on Stone Mountain's motion for summary judgment to warrant a finding that the initial $4.00 fee paid by the appellant and her husband constituted a motor vehicle fee rather than a fee for the recreational use of the park itself. It is apparent from the deposition testimony of the appellant and her husband that in return for this fee they received a vehicle sticker permitting them to leave and re-enter the park without additional charge. It is further apparent from their testimony that, whereas they had been accompanied only by their younger daughter at the time they paid the fee, various additional family members were subsequently permitted entry into the park as occupants of the vehicle during the course of the weekend, without additional charge.
In the absence of contrary evidence, such testimony leads inescapably to the conclusion that, as was the case in Herrington and Brannon, supra, what was purchased by the initial $4.00 fee was a permit for the use of a vehicle in the park. It follows 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. The additional fees paid by the appellant and her husband for purchases of such items as a camping permit, food, souvenirs, and tickets to park rides and attractions similarly cannot be considered charges for the recreational use of the parkland itself, it appearing that such general activities as swimming and sightseeing were available to and engaged in by the family without charge.
2. The appellant further contends that even if she was not charged an admission fee the Recreational Property Act may nevertheless be considered inapplicable pursuant to the "business interests" test set forth in Cedeno v. Lockwood, Inc., supra. In that case, the Supreme Court held that an area of buildings, streets, sidewalks, and alleyways located in the City of Atlanta and known as "Underground Atlanta" could not be considered recreational property within the contemplation of the Act because it was made available to the public not for recreational use but as a commercial attraction to promote the sale of food, merchandise, and services by the various business establishments located there. Stone Mountain Park, on the other hand, is operated by a non-profit, public entity created by statute (OCGA 12-3-191 et seq.) for the limited purpose of acquiring and administering Stone Mountain and the property adjacent thereto "as a Confederate memorial and public recreational area. . . ." OCGA 12-3-191 (6). We must accordingly deem the park premises to be a public recreation area, notwithstanding the fact that substantial revenues may be derived from the sale of special permits, concessions, and tickets to rides and other attractions located on the premises. Since the appellant's 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, rides, or attractions for which a fee was charged, we hold that the trial court was Correct in concluding as a matter of law that the provisions of the Recreational Property Act operated to prevent her from recovering from the Stone Mountain Memorial Association based on allegations of simple negligence.
BENHAM, Judge, dissenting.
I dissent from the opinion of the majority, which holds the Recreational Property Act ("RPA") (OCGA 51-3-20 et seq.) applicable to the facts of this case. I focus on the "business interest" exception to the applicability of the RPA, as enunciated in Cedeno v. Lockwood, 250 Ga. 799 (2) (301 SE2d 265) (1983). In that case, the Supreme Court held that if the public were invited upon land in furtherance of the owner's business purposes, the RPA "will not shield the owner from liability even though the public receives some recreation as a side benefit." Id. at 802.
Michael J. Bowers, Attorney General, Daniel M. Formby, J. Robert Coleman, Senior Assistant Attorneys General, Angeline Mathis, for appellee.
William H. Smith, Jr., for appellant.
DECIDED MAY 29, 1987 -- REHEARING DENIED JUNE 19, 1987 -- CERT. APPLIED FOR.
Thursday May 21 13:50 EDT


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