Trotter v. Tucker Football League, Inc.

• Decision Date: 24 June 2022
• Docket Number: A22A0496
• Citation: 875 S.E.2d 474
• Parties: TROTTER v. TUCKER FOOTBALL LEAGUE, INC.
• Court: Georgia Court of Appeals

875 S.E.2d 474

TROTTER

v.TUCKER FOOTBALL LEAGUE, INC.

A22A0496

Court of Appeals of Georgia.

June 24, 2022

Reconsideration Denied July 12, 2022

Jonathan Mark Broderick, Atlanta, for Appellant.

Phillp Edward Friduss, for Appellee.

McFadden, Presiding Judge.

Yohan Trotter, a coach with the Tucker Football League, Inc., was injured in a fight following a youth football game at the league's field. Trotter sued the league for damages, arguing that the league was negligent in failing to take required safety measures at the field. The trial court granted summary judgment to the league on the ground that the league was immune from suit under the Recreational Property Act, OCGA § 51-3-20 et seq., and Trotter appeals. He argues that the Act's immunity does not apply here because the league wilfully failed to warn him of or guard against a dangerous condition at the field. But he has not pointed to evidence demonstrating all of the facts required to invoke that exception to the Act. So we affirm.

1. Facts and procedural history.

"[T]o prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law[.]" Cowart v. Widener , 287 Ga. 622, 623 (1) (a), 697 S.E.2d 779 (2010) (citations and punctuation omitted). See OCGA § 9-11-56 (c). A defendant, which does not bear the burden of proof at trial,

may do this by either presenting evidence negating an essential element of the plaintiff's claims or establishing from the record an absence of evidence to support such claims.... Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Cowart , 287 Ga. at 623 (1) (a), 697 S.E.2d 779 (citations and punctuation omitted). We review the trial court's ruling on summary judgment de novo, viewing "the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant." Id. at 624 (1) (a), 697 S.E.2d 779 (citation and punctuation omitted).

So viewed, the evidence shows that Trotter was a volunteer coach for the league, a nonprofit organization that operated a youth football and cheerleading program. On September 9, 2017, Trotter's under-12 team was playing a game at its home field. The league owned the property on which the field sat and it had not charged an admission fee for the game, which was open to the public. At the end of the game, an adult spectator approached Trotter on the field and, after the two exchanged words, the spectator physically assaulted Trotter. A child was also hit during the altercation.

The league was a member of the larger Youth Football Association (YFA) and was subject to that association's policies and procedures. One of those policies required that the league "provide a police presence on home game days to keep unruly spectators in line." But at the time of the incident the league did not regularly provide police presence (or other hired security) at its home games, including the game at which Trotter was assaulted. The league also did not comply with a YFA policy requiring a fence or safety barrier that separated the field from the spectator section and was at least 15 yards from the out-of-bounds lines on the field. Instead, the field had a fence that was less than this prescribed distance, although the league asserted that the YFA had permitted this deviation. In addition, spectators and league officials sometimes consumed alcohol at games, despite a YFA policy forbidding drinking at its events. Indeed, on the day of the incident, the league representative with oversight responsibility at the field — a member of the league's board — had consumed alcohol earlier in the day. In addition, on a handful of earlier occasions, physical altercations had broken out among adults at the field, and there was also one incident in which a spectator was believed to have a gun.

In his complaint, Trotter alleged that the league was negligent in failing to provide a safe environment at the field, including failing to provide police presence at the game and failing to have a fence or safety barrier that was at least 15 yards from the field. The league moved for summary judgment, arguing that it was immune from suit under the Recreational Property Act. Opposing the motion, Trotter argued among other things that the Act's immunity did not shield the league in this case because there was evidence showing that the league had wilfully failed to guard or warn against a dangerous condition. The trial court granted the league's motion and Trotter appeals.

2. Analysis.

"The Recreational Property Act shields from liability a property owner ‘who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes(.)’ OCGA § 51-3-23." Mercer Univ. v. Stofer , 306 Ga. 191, 830 S.E.2d 169 (2019). But "[n]othing in [the Act] limits in any way any liability which otherwise exists ... [f]or willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity[.]" OCGA § 51-3-25 (1).

" ‘[W]illful failure’ involves a conscious, knowing, voluntary, intentional failure, rather than a mere inadvertent, accidental, involuntary, inattentive, inert, or passive omission." Stone Mountain Mem. Assn. v. Amestoy , 337 Ga. App. 467, 469-470, 788 S.E.2d 110 (2016) (citations and punctuation omitted). A plaintiff such as Trotter who seeks to invoke OCGA § 51-3-25 (1) ’s wilful failure exception

must show that the property owner ... had actual knowledge that (1) the property was being used for recreational purposes; (2) a condition existed involving unreasonable risk of death or serious bodily harm; (3) the condition was not apparent to those using the property; and (4) having the foregoing knowledge, the property owner chose not to warn users in disregard of the possible consequences. Constructive knowledge is insufficient to meet this burden of proof[.] Importantly, the plaintiff must satisfy each prong of this four-part test to succeed against a recreational property owner under this exception.

Stone Mountain Mem. Assn. , 337 Ga. App. at 470, 788 S.E.2d 110 (citations omitted; emphasis in original). See also Ray v. Ga. Dept. of Natural Resources , 296 Ga. App. 700, 702 (2), 675 S.E.2d 585 (2009) (discussing the "four-part test to determine whether a property owner falls within [the wilful or malicious] exception" to the Recreational Property Act).

On appeal, the parties appear to agree that the league's field was used for recreational purposes, the first prong of the four-part test. See Shields v. RDM , 355 Ga. App. 409, 415-416 (2), 844 S.E.2d 297 (2020) (holding that a free exhibition of cheerleading routines was "recreational" within the meaning of the Act). Instead, this appeal turns on whether there exist genuine issues of material fact regarding the other prongs of the test. If there is not a genuine issue of material fact as to each of those prongs, then the league is entitled to summary judgment under the Act. See Lee v. Dept. of Natural Resources , 263 Ga. App. 491, 494 (3), 588 S.E.2d 260 (2003) (finding that the defendant's wilful failure to warn of a dangerous condition was not established as a matter of law, and so the defendant was entitled to summary judgment, where the plaintiff did not point to evidence creating a genuine issue of material fact as to one of the four prongs of the test establishing an exemption to immunity under the Recreational Property Act).

In his appellate briefs, Trotter characterizes the allegedly dangerous condition at the field in various ways: the presence of unruly spectators at the field; the lack of police presence at the field; and the consumption of alcohol by the board member responsible for overseeing the game. It is not apparent that Trotter intends to argue that each of these is a separate, dangerous condition. But even if we view them as such, we find no merit in Trotter's arguments because, as to each of these conditions, he has failed to point to evidence creating a genuine issue of material fact about at least one of the remaining prongs in the above-described test.

(a) Unruly spectators.

As to unruly spectators, Trotter "failed to produce any evidence to create a jury question as to the third prong of the test — that is, that [the league] had actual knowledge that [the allegedly dangerous condition caused by unruly spectators was] not apparent to those using the property." Stone...