Georgia’s Recreational Properties Act (O.C.G.A. §51-3-20 et seq) limits landowners’ liability toward persons entering onto their property for recreational purposes. The act is intended to encourage landowners to open their properties for recreational use by the general public. Georgia Courts have held that the act applies to public school playgrounds which are accessible to the general public. Unfortunately, as a result of this statute, many cases involving playground injuries may not give rise to a viable claim for damages against the landowner, even where negligence is present.
In Edmondson v. Brooks County Board of Education, 205 Ga.App. 662,423 S.E.2d 413 (1992). the parents of a child injured on a merry-go-round sued the Board of Education. The complaint asserted that the Board, as owner, had superior knowledge of the dangerous nature of the equipment. The parents asserted the Board should have posted a warning. Because the playground was open to the general public outside of school hours free of charge, the Court of Appeals held that liability was barred under the Act. In reaching that conclusion, the Court noted that a limited exception exists in cases involving a willful or malicious failure to warn. However, in the absence of evidence of such a willful or malicious failure, the exception did not apply.
The “Willful or Malicious Failure” Exception
More recently, the Georgia Court of Appeals considered how and when the “willful or malicious failure” exception should be applied. In Stone Mountain Memorial Association v. Amestoy, 337 Ga. App. 467, 788 S.E.2d 110 (2016), a cyclist suffered a fatal head injury. The cyclist had been thrown from his bike when his handlebars struck a temporary sawhorse traffic barricade. The cyclist’s widow sued, claiming the barricades posed a risk of serious bodily injury or death. As a consequence, the widow asserted, the Stone Mountain Park Authority had a duty to warn bike riders of the hazard. In response, the Park Authority defended the case by claiming that liability was barred by the Recreational Property Act.
The Court of Appeals held that a “willful failure” for purposes of the exception requires evidence of “a conscious, knowing, voluntary, intentional failure, rather than a mere inadvertent, accidental, involuntary, inattentive, inert or passive omission.” Proving “malice” requires evidence of 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.” Because the evidence did not meet these requirements, recovery was barred under the Recreational Property Act.
It is critical that Georgia Parents understand that they are responsible for their children’s safety when using public playgrounds. The Recreational Properties Act will operate bar recovery in all but the most egregious cases of neglect. Consequently, Georgia parents must rely on their own judgement and diligence to root out hazards and protect their children.