Hogue v. Stone Mountain Memorial Ass'n, 73866

• Citation: 183 Ga.App. 378,358 S.E.2d 852
• Decision Date: 29 May 1987
• Docket Number: No. 73866,73866
• Parties: HOGUE v. STONE MOUNTAIN MEMORIAL ASSOCIATION.
• Court: United States Court of Appeals (Georgia)

Page 852

358 S.E.2d 852

183 Ga.App. 378

HOGUE v. STONE MOUNTAIN MEMORIAL ASSOCIATION.

No. 73866.

Court of Appeals of Georgia.

May 29, 1987.

Rehearing Denied June 19, 1987.

Certiorari Denied Sept. 8, 1987.

William H. Smith, Jr., Tucker, for appellant.

Michael J. Bowers, Atty. Gen., J. Robert Coleman, Daniel M. Formby, Angeline Mathis, Sr. Asst. Attys. Gen., for appellee.

BANKE, Presiding Judge.

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 S.E.2d 521 (1969), and Brannon v. Stone Mountain Memorial Assn., 165 Ga.App. 120, 299 S.E.2d 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 S.E.2d 265 (1983).

The appellant and her husband had driven to the park from their home in North Carolina in the company of their youngest daughter for the purpose of camping there with an older daughter and her family, who were en route to Texas from Florida. They paid an initial fee of $4.00 upon entering the park, in return for which they received a vehicle sticker which permitted them to exit and re-enter the park without additional charge during their stay there. They also paid a camping fee upon registering at the campground; and, during the course of their 2-day stay at the park, they purchased food, souvenirs, and tickets to such park attractions as the cable car ride, boat ride, and automobile museum. On the evening of what was to be the second and last night of their stay, the family left the park temporarily to dine at a nearby pizza restaurant. Upon their return, they set out on foot from a parking lot to attend the laser show. In the darkness, the appellant stepped off the edge of a concrete slab traversing her pathway and fell, severely fracturing her ankle. Held:

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...