A civil case against the City of Savannah stemming from the fall of a woman on a city sidewalk is headed back to a lower court for review.
Background
In 2019, Gloria McLamb and her family were visiting the City of Savannah. The family took a trolley tour around the city to sightsee. The McLambs visited historic sites and then walked back to their hotel through Savannah’s National Historic Landmark District. While walking, Gloria McLamb tripped over a raised paver, one she says she did not see before tripping and falling. She incurred a closed fracture of her left humerus and a wrist fracture.
McLamb sued the City of Savannah, specifically the Mayor and Aldermen of the City of Savannah, alleging negligence on the part of the city. According to the complaint, the change in elevation was in excess of 1/4 of an inch. McLamb sued for damages to be determined by a jury as well as medical expenses.
The City, however, sought summary judgment, arguing that McLamb could not sue because of the Georgia Recreational Property Act, a statute under Georgia law enacted to encourage property owners to make property ‘public for recreational purposes.’ In doing so, the liability of the owners is limited.
Specifically, a property owner who allows people to use property for recreational purposes without charging them does not owe the same duty to keep the premises safe or warn visitors about dangerous conditions that might otherwise exist under premises liability law.
The statute identifies a number of recreational activities, including hunting, fishing, swimming, boating, camping, hiking, nature study and “viewing or enjoying historical, archeological, scenic, or scientific sites.”
The last category is the subsection under which the City of Savannah has alleged it is not liable in McLamb’s case because she was sightseeing in Savannah’s historic district when she fell.
Trial Court Sides with McLamb, but Court of Appeals Sides with City
The trial court denied the City of Savannah’s Motion for Summary Judgment, contending that there were factual questions about whether the sidewalk where McLamb fell should qualify as recreational property.
The trial court also concluded that applying the Recreational Property Act to McLamb’s claims would violate the Georgia Constitution’s equal protection provision because it could result in different treatment for Savannah tourists and local residents using the same sidewalks.
The City of Savannah appealed the decision to the Court of Appeals.
The Georgia Court of Appeals then reversed the trial court and concluded that the City was entitled to immunity under the Recreational Property Act. Citing a 2019 decision by the state’s high court in Mercer University v. Stofer, the courts considered
- the nature of the activity the public was invited to engage in and
- the nature of the property the public was invited to use.
The Court of Appeals then said it relied on McLamb’s own testimony, which included statements that she had chosen to walk instead of taking the trolley because she enjoyed sightseeing and wanted to see parks, historic buildings, and large trees. For that reason, the appeals court said the scenario met the standard for recreational activity, specifically because McLamb was looking at a tree when she fell.
The appellate court also found the property itself recreational because the sidewalk was city-owned, located within Savannah’s National Historic Landmark District and available for sightseeing without a fee.
McLamb appealed her decision to the Supreme Court of Georgia.
SCOGA Ruling Says Give It Another Look
The recent ruling from the Supreme Court of Georgia does not conclude that the City of Savannah is immune from the lawsuit, but rather that the Court of Appeals needs to reconsider how it applied the legal standard it used.
This week, the Georgia Supreme Court ruled that the Court of Appeals placed too much emphasis on what the woman was doing at the moment she fell when determining whether the City was protected from liability under Georgia’s Recreational Property Act.
The difference in what should have been considered, according to the Supreme Court, is between what an individual plaintiff happened to be doing when injured and what the property owner generally invited the public to do on the property.
The Recreational Property Act focuses on the nature and scope of the landowner’s invitation, the ruling says. SCOGA said the Court of Appeals should have primarily examined what Savannah generally invited members of the public to do on that particular sidewalk and whether that activity should be classified as recreational under the Act.
The decision was unanimous.
SCOGA Fails to Answer All Questions – Recreational vs. Commercial Property
Additional questions remain with regard to government-owned property and the Recreational Property Act.
Georgia courts have frequently distinguished between property opened for “recreational” purposes and property opened for “commercial” purposes. McLamb argued that distinction is less useful when dealing with government property because governments make property available to the public for many reasons and sometimes those reasons aren’t recreational or commercial.
The Supreme Court opted not to rule on the framework of government property for recreational vs. commercial purposes.
In fact, the ruling suggested that some justices were skeptical that the Recreational Property Act was supposed to apply to government property at all, but ultimately relied on precedent dating back to 1969 that held that the Act applies to government landowners – a precedent McLamb did not ask the Court to overturn.
Finally, the Supreme Court declined to consider a city’s duty to maintain streets and sidewalks.
The Georgia Trial Lawyers Association had filed an amicus curiae brief in the case and argued that the Recreational Property Act should not eliminate a municipality’s separate statutory duty to keep streets and sidewalks safe for travel.
The high court said addressing that issue at the present time was unnecessary to resolve the narrower question before the Court.
Now…
The case now heads back to the Court of Appeals for reconsideration.
Gloria McLamb is represented by Eugene C. Brooks IV and James Bradley Stevens. The Mayor and Aldermen of the City of Savannah are represented by Robert Lovett, Benjamin Perkins, and William Phillips.
