Gayle v. Boys, A13A0084.

• Decision Date: 26 June 2013
• Docket Number: No. A13A0084.,A13A0084.
• Parties: GAYLE, et al. v. FRANK CALLEN BOYS AND GIRLS CLUB, INC.
• Court: Georgia Court of Appeals

322 Ga.App. 412

745 S.E.2d 695

GAYLE, et al.

v.FRANK CALLEN BOYS AND GIRLS CLUB, INC.

No. A13A0084.

Court of Appeals of Georgia.

June 26, 2013.

William Louis Norse Jr., Savannah, Dwight T. Feemster, for Gayle et al.

Ryburn Clay Ratterree, Quentin Lamont Marlin, Savannah, for Frank Callen Boys and Girls Club, Inc.

MILLER, Judge.

Jabari and Ulysia Gayle sued the Frank Callen Boys and Girls Club, Inc. (the “Club”) and the Housing Authority of Savannah to recover for personal injuries Jabari sustained during a basketball game at the Club. The trial court granted summary judgment in favor of the Club,¹ finding that the Recreational Property Act, OCGA § 51–3–20 et seq. (“RPA”), precluded the Gayles' claims. On appeal, the Gayles contend that the trial court erred in granting summary judgment to the Club. For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citations omitted.) Carroll v. City of Carrollton, 280 Ga.App. 172, 172–173, 633 S.E.2d 591 (2006).

So viewed, the record evidence reflects that the Club is a non-profit organization that was founded to provide a safe environment for young people in athletic, learning and recreational activities. The Housing Authority of Savannah, Georgia owns the property where the Club is located; however, the Club is the sole occupant of the property and is in control of the premises.

Recreational activities at the Club include basketball, as well as organized league and non-league sport activities. The Club has a voluntary $2 nominal annual membership fee for minor children who submit applications to join the facility. The purpose of the membership applications and annual fee is to provide a record of children at the facility, defray some of the operating costs for recreational activities and foster a stronger connection between children and the Club. Many members of the Club never pay the fee, and no child is ever turned away from the facility or membership for failing to pay the fee. Additionally, members of the public can enter the facility as spectators to recreational sport activities occurring at the Club.

In 2006, Jabari joined the Club for free and started going there every afternoon after school. In February 2007, then 17–year–old Jabari was playing a pick-up game of basketball in the Club's gymnasium. Jabari was running down the court on a “fast break.” Jabari could not slow down. He came into contact with the wire mesh and glass window of an office door which was located behind one of the basketball goals. Consequently, his left hand went through the window, cutting his wrist and tendons. Jabari was treated at the emergency room that night and underwent surgery the next day.

The Gayles subsequently filed this action against the Club and the Housing Authority of Savannah, alleging that the defendants were negligent in maintaining the premises. The Gayles also alleged that the defendants' maintenance of a wire glass door in close proximity to the basketball court, along with their failure to warn or guard against this alleged hazard, constituted a willful and malicious failure to guard or warn against a dangerous condition or activity. The Club moved for summary judgment, contending that it was immune from liability under the RPA. The trial court subsequently granted the Club's motion for summary judgment on that ground.

In their sole enumeration of error, the Gayles contend that the trial court erred in granting summary judgment to the Club based on their claims that the Club was negligent in failing to keep its premises safe.² We disagree.

(a) The RPA pertinently provides that:

an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes does not thereby: (1) Extend any assurance that the premises are safe for any purpose; (2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed; or (3) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.

OCGA § 51–3–23. “The purpose of the RPA is to encourage property owners to make their property available to the public for recreational purposes by limiting the owners' liability.” (Punctuation and footnote omitted.) Cooley v. City of Carrollton, 249 Ga.App. 387, 388, 547 S.E.2d 689 (2001); see also Edmondson v. Brooks County Bd. of Ed., 205 Ga.App. 662, 423 S.E.2d 413 (1992). The RPA applies where the property is open to the public for recreational purposes and the owner does not charge an admission fee. See Edmondson, supra, 205 Ga.App. at 662, 423 S.E.2d 413.

The RPA provides the following definitions for determining applicability:

(1) “Charge” means the admission price or fee asked in return for invitation or permission to enter or go upon the land. (2) “Land” means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty. (3) “Owner” means the possessor of a fee interest, a tenant, a lessee, an occupant, or a person in control of the premises. (4) “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.

(Emphasis supplied.) OCGA § 51–3–21. Moreover, the issue of whether the RPA applies is a question of law for the trial court. See Atlanta Committee for the Olympic Games v. Hawthorne, 278 Ga. 116, 117(1), 598 S.E.2d 471 (2004).

Here, the record evidence supports the trial court's findings that the Club was the sole occupant in control of the property, and the premises ³ was open to the public free of charge. Although the Club has a suggested $2 annual membership fee, children are not required to pay a fee to use the facility, and any member of the public can enter the facility to watch recreational activities without paying a fee.⁴ Moreover, the purpose of the voluntary $2 membership fee was to provide a record of children at the facility, defray some of the operating costs for recreational activities and get kids invested in the program. Accordingly, the voluntary fee is not an admission fee required for permission to enter onto the premises, and does not constitute a “charge” to the public as contemplated in the RPA. See, e.g., S. Gwinnett Athletic Assn. v. Nash, 220 Ga.App. 116, 117–118(1), 469 S.E.2d 276 (1996) (little league registration fee which was needed to defray league operating costs was not an admission fee required for permission to entered onto land, so it was not a charge to public as contemplated by the RPA); Spivey v. City of Baxley, 210 Ga.App. 772, 437 S.E.2d 623 (1993) (fee required for participation in softball league was not a charge imposed to obtain permission to enter premises).

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