Anderson v. ACOG

• Decision Date: 23 October 2000
• Docket Number: No. S00A1069., No. S00A0901, No. S00A0899
• Citation: 537 S.E.2d 345,273 Ga. 113
• Court: Georgia Supreme Court
• Parties: ANDERSON et al. v. ATLANTA COMMITTEE FOR the OLYMPIC GAMES, INC. et al. Anderson et al. v. AT & T Corporation et al. Hawthorne et al. v. Atlanta Committee for the Olympic Games, Inc. et al.

537 S.E.2d 345

273 Ga. 113

ANDERSON et al. v. ATLANTA COMMITTEE FOR the OLYMPIC GAMES, INC. et al.

Anderson et al. v. AT & T Corporation et al.

Hawthorne et al. v. Atlanta Committee for the Olympic Games, Inc. et al.

Nos. S00A0899, S00A0901, S00A1069.

Supreme Court of Georgia.

October 23, 2000.

Slappey & Sadd, James N. Sadd, Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., Cordele, Thornton & Elsner, Guerry R. Thornton, Jr., James W. Howard, Sharon E. Howard, Lanham & McGehee, Clark H. McGehee, Johnson & Ward, Carl T. Maxwell III, Madison B. McClellan, Stuart, FL, Tricia P. Hoffler, Norfolk, VA, Bauer & Deitch, Gilbert H. Deitch, Garland, Samuel & Loeb, Robin N. Loeb, Atlanta, Taylor, Harp & Callier, Jefferson C. Callier, Columbus, Clifford J. Steele, Atlanta, Willie E. Gary, for Anderson and Hawthorne et al.

King & Spalding, Horace H. Sibley, Dwight J. Davis, Atlanta, Hawkins & Parnell, T. Ryan Mock, Jr., Frederick A. Bading, Matthew F. Barr, Parker, Hudson, Ranier & Dobbs, G. Wayne Hillis, David G. Russell, Erika C. Birg, Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Mary K. Greene, Freeman, Mathis & Gary, Theodore Freeman, Philip W. Savrin, for Atlanta Committee for the Olympic Games and AT&T Corp. et al. HUNSTEIN, Justice.

This Court consolidated these three appeals because they all involve challenges to the constitutionality of the Recreational Property Act ("RPA"), OCGA § 51-3-20 et seq., and its application to two suits arising out of the bombing in Centennial Olympic Park during the 1996 Olympic Games. The plaintiffs seek damages for wrongful death and personal injuries from the Atlanta Committee for the Olympic Games, Inc. (ACOG), which is the lessee of the park property;¹ from ACOG's director of security, William Rathburn; from AT & T Corporation, a sublessee of property within the park; and from two security services, Borg-Warner Protective Services Corporation, hired by ACOG, and Anthony Davis, Inc. ("ADI"), hired by an agent of AT & T.

The Anderson plaintiffs appeal in Case No. S00A0899 from the grant of summary judgment in favor of ACOG and Rathburn and appeal in Case No. S00A0901 from the grant of summary judgment to AT & T and the two security services as well as from the grant of AT & T's motion to dismiss. In Case No. S00A1069, the Hawthorne plaintiffs appeal the grant of summary judgment to all the defendants in their wrongful death action.

1. We find no error in the trial court's ruling that Georgia's Recreational Property Act is constitutional.

(a) Appellants first argue that the RPA is unconstitutionally vague as applied to the facts in this case. See generally Hall v. State, 268 Ga. 89(1), 485 S.E.2d 755 (1997) (vagueness challenge to statutes not involving First Amendment freedoms must be examined in light of facts of case at hand). The RPA limits, with certain exceptions, the liability of an owner of land who has made property available without charge to the public for recreational purposes. OCGA §§ 51-3-22, 51-3-23. OCGA § 51-3-21(4) provides that "recreational purposes"

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.

A statute must be definite and certain to be valid, and when it is so vague and indefinite that persons of common intelligence must necessarily guess at its meaning and differ as to its application, it violates the first essential of due process of law. To withstand an attack of vagueness or indefiniteness, a civil statute must provide fair notice to those to whom the statute is directed and its provisions must enable them to determine the legislative intent. Jekyll Island-State Park Auth. v. Jekyll Island Citizens Assn, 266 Ga. 152(2), 464 S.E.2d 808 (1996).

The legislative intent of the RPA is "to encourage owners of land to make land and water areas available to the public for recreational purposes." OCGA § 51-3-20. See also City of Tybee Island v. Godinho, 270 Ga. 567, 511 S.E.2d 517 (1999). By its express language, the RPA is not limited to the activities delineated within OCGA § 51-3-21(4) but encompasses any recreational activity, i.e., any amusement, play or other form of relaxation which refreshes the mind or body. See Ballentine's Law Dictionary (3rd ed.), p. 1071. We hold that the RPA provides fair notice to persons of normal intelligence that a park created to celebrate the spirit of an historic athletic and cultural event and to provide a gathering place for visitors to relax and enjoy themselves constitutes property available to the public for recreational purposes so as to come within the Act's immunity provisions.

(b) We find no merit in appellants' argument that the RPA unconstitutionally violated their due process and equal protection rights. The RPA does not disadvantage a suspect class or interfere with the exercise of a fundamental right and thus it need only bear a reasonable relationship to a legitimate state purpose. City of Atlanta v. Watson, 267 Ga. 185(1), 475 S.E.2d 896 (1996). The RPA reasonably promotes the legitimate governmental purpose of making recreational property more accessible to the public and the classification 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. See generally Love v. Whirlpool Corp., 264 Ga. 701, 449 S.E.2d 602 (1994) (equal protection analysis); Dept. of Nat. Resources v. Union Timber Corp., 258 Ga. 873(4), 375 S.E.2d 856 (1989) (due process analysis).

(c) The RPA does not violate the provision in Article III, Section V, Paragraph III of the Georgia Constitution of 1983 prohibiting the passage of a law which refers to more than one subject matter. Wall v. Bd. of Elections of Chatham County, 242 Ga. 566(3), 250 S.E.2d 408 (1978).

2. The trial court granted summary judgment in favor of ACOG finding that no questions of fact remain that the RPA insulates ACOG from liability for appellants' injuries. In so holding, the trial court relied upon the holdings in Quick v. Stone Mountain Memorial Assn, 204 Ga.App. 598, 420 S.E.2d 36 (1992) and Hogue v. Stone Mountain Memorial Assn, 183 Ga.App. 378, 358 S.E.2d 852 (1987). In those cases, the Court of Appeals determined that Stone Mountain Park was a public recreation area notwithstanding the fact that the park derived substantial revenues from the sale of special permits, concessions, and tickets to ride and other attractions located on the premises, focusing on the fact that the plaintiffs' injuries in each case resulted from a "general recreational usage of the park premises, for which no fee was charged, rather than from the use of any of the facilities ... for which a fee was charged." Id. at 380-381, 358 S.E.2d 852.

We have recognized that in order for the RPA to apply, it is not necessary that the public be on property for "sheer recreational pleasure" and that the RPA may apply in situations where commercial interests are mixed with recreational activities. City of Tybee Island v. Godinho, supra, 270 Ga. at 567, 511 S.E.2d 517 (RPA shielded city from liability for injury on sidewalk to beach). In Godinho, we noted that the primary purpose of the sidewalk property was recreational and the City was not in the business of entertainment or recreation. Id. at 568-569, 511 S.E.2d 517. Compare Cedeno v. Lockwood, 250 Ga. 799(2), 301 S.E.2d 265 (1983). We held in Cedeno that

[t]he important criterion is the purpose for which the public is permitted on the property. If the public is invited to further the business interests of the owner—e.g., for sales of food, merchandise, services, etc.— then the RPA will not shield the owner from liability even though the public receives some recreation as a side benefit.

Id. at 802, 301 S.E.2d 265. This Court has also recognized that property which has been made available to the public "for advertising purposes and to promote the sale of the [property owner's] products" does not necessarily take the property out of the RPA. Bourn v. Herring, 225 Ga. 67(1), 166 S.E.2d 89 (1969).

Appellants argue that at the time of their injuries, ACOG's purpose in making Centennial Olympic Park available to the public was to further a commercial enterprise and thus this case is more similar to Cedeno, involving Underground Atlanta, than Quick and Hogue, involving Stone Mountain Park. Our cases contain little guidance to the courts in determining the applicability of the RPA in mixed-use cases under facts like those present in this case. Although the cases refer to the business interests of the property owner, an owner's profit motive does not necessarily create a reasonable inference that the event is commercial rather than recreational in nature. Rather, it is the purpose for which the owner earned the profits. For example, profits earned that are used to pay for property maintenance or public services are "not profits in the ordinary commercial sense of the word." Fischer v. Doylestown Fire Dept., 199 Wis.2d 83, 543 N.W.2d 575, 578 (App.1995) (fire department hosted community picnic where profits paid for park and fire equipment).

Based on our review of Georgia case law and foreign jurisdictions which have addressed this issue, we find persuasive the test promulgated by the Wisconsin Court of Appeals in Silingo v. Village of Mukwonago, 156 Wis.2d 536, 458 N.W.2d 379 (App.1990). That court proposed a 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

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