City of Atlanta v. Mapel, 45047

• Decision Date: 12 March 1970
• Docket Number: Nos. 1,No. 45047,3,2,45047,s. 1
• Citation: 174 S.E.2d 599,121 Ga.App. 567
• Parties: CITY OF ATLANTA v. Theodore J. MAPEL
• Court: Georgia Court of Appeals

Page 599

174 S.E.2d 599

121 Ga.App. 567

CITY OF ATLANTA v. Theodore J. MAPEL.

No. 45047.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

March 12, 1970.

Rehearing Denied April 1, 1970.

Syllabus by the Court

Under the law of Georgia, damages resulting from tortious performance of governmental functions by a municipality must be borne solely by the injured individual. The branch of government that has the power to change this law and which likewise must assume responsibility for its continued existence is the General Assembly of Georgia.

In a tort action, the defendant city appeals from the denial of its motion for summary judgment on the ground of governmental immunity.

Plaintiff's complaint alleged the following: His twelve year old son was one of a group of young boys which regularly congregated at Bobby Jones Golf Course in Atlanta to serve as caddies. They were also allowed and encouraged to search for lost golf balls which they sold to the course pros for resale in the clubhouse. Plaintiff's son was engaged in such a search when he was struck in the head by a golf ball in play. He suffered severe and permanent brain injury. Plaintiff made demand upon the City pursuant to Code Ann. § 69-308. The claim was refused. Plaintiff also alleged, and contends here, that in the operation of this golf course, the city is engaged in a proprietary function as it receives substantial revenue from green fees comparable to private golf courses.

Counsel for both parties stipulated on oral argument that there was no genuine issue on any material fact and the only question was one of law-whether the city has governmental immunity from tort liability in the operation of this golf course.

Henry L. Bowden, Thomas F. Choyce, Atlanta, for appellant.

Albert M. Horn, Atlanta, for appellee.

HALL, Presiding Judge.

'The American rules governing the tort liability of municipal corporations make a curious patchwork of immunity and responsibility. The dominent motif is a supposed distinction between governmental and proprietary functions * * * No satisfactory test has been devised for distinguishing between (these) functions. * * * Little wonder that courts and commentators have despaired of finding a rational and consistent key to the distinction.' 2 Harper & James, The Law of Torts 1619-1623, § 29.6.

Probably as both cause and effect of this pattern, there has been a definite trend away from the absolute defense of governmental immunity in most jurisdictions. See Alstyne, Governmental Tort Liability: A Decade of Change, 1966 U.Ill.L.Forum 919. In a few states it has been legislatively abolished, but more often the response to a conscience-shocking case has been a judicial hairline distinction-another piece on the patchwork.

Until very recently, Georgia courts have refused to participate in the quilting bee. With a few classical exceptions (e.g., streets and utilities) we have found virtually every municipal activity to be governmental and therefore protected from tort liability. Perhaps an indication of a new attitude is the result reached in Town of Fort Oglethorpe v. Phillips, 224 Ga. 834, 165 S.E.2d 141, where the Supreme Court declared that the maintenance of a traffic signal was governmental, but held that the plaintiff had cause of action in nuisance. 'This expansion of municipal liability has received mixed reaction * * *. Nevertheless, the Supreme Court's decision did produce the effect of making a new inroad on the doctrine of municipal immunity. Although, any inroad is welcomed, it is questionable whether Phillips will prove to be a benefit or a burden.' Comment, 5 Georgia S.B.J. 474, 489 (1969).

Elsewhere in the country, when golf courses have been specifically considered, the 'general rule' is to find them proprietary. 18 McQuillin, Law of Municipal Corps. § 53.115. However, the cases are few, no two have the same rationale, and none has a statutory and case law background duplicating Georgia's. While we have had no golf course cases, we do have an established line holding parks and recreational facilities to be governmental. Cornelisen v. City of Atlanta, 146 Ga. 416, 91 S.E. 415; City of Warrenton v. Smith, 149 Ga. 567, 101 S.E. 681; Autrey v. City Council of Augusta, 33 Ga.App. 757, 127 S.E. 796; Stubbs v. City of Macon, 78 Ga.App. 237, 50 S.E.2d 866.

Faced with similar precedent, a California court found this ingenious answer: 'The underlying purpose behind the playing of a game of golf, however, is undoubtedly pleasure or amusement. True, it provides some exercise and gets the player out into the fresh air and sunshine, but a walk in the park would serve the same purpose. Golf is a game of skill and rivalry, with a decided social aspect, and it is doubtful that most people who play consider health benefits to be the primary objective. Some even ride between shots in small vehicles designed for this purpose, and have caddies to carry their clubs and equipment, which indicates that exercise is for them not the foremost consideration. A golf course does not serve the public generally but only those who play the game. It is designed for a single purpose, while a public park is devoted to no specific use and serves many purposes for the public in general. Many private golf courses are maintained, some for profit, and others as an adjunct to private clubs or associations. It is true that a public golf course undoubtedly makes the sport available to a segment of our population to which private courses would not be accessible, but this alone does not constitute it a governmental function. It is actually in competition with other courses, and in its clubhouse commercial enterprises usually are carried on where commercial rates are charged for commodities and services. We are satisfied, therefore, that the primary purpose served by the operation of a public golf course is pleasure or amusement, and that in the present case the City of San Mateo was acting in its proprietary capacity and therefore owed its invitees the duty of exercising ordinary care for their safety.' Plaza v. City of San Mateo, 123 Cal.App.2d 103, 111, 266 P.2d 523, 528-529. It should be noted that this court only had to deal with prior holdings that parks are governmental because they promote the public health.

Georgia has a 'consistent key.' Laid down in 1916 and scrupulously followed since, is this test: 'Where a city maintains a park primarily for the use of the public, intended as a place of resort for pleasure and promotion of health of the public at large, its operation is in virtue of the governmental powers of the municipality, and no municipal...