Georgia Supreme Court Holds That a Landowner’s Subjective Intent Should Not Be Considered Under the

Sally Stofer’s family sued after she suffered fatal injuries while attending a free concert which Mercer University (“Mercer”) hosted at a public park. Mercer University v. Stofer, 306 Ga. 191 (2019). Her family filed a wrongful death action against Mercer, asserting negligence claims. Mercer moved for summary judgment, arguing in part that it is immune from liability under the Recreation Property Act (“Act”) because it had invited Ms. Stofer and other members of the public to the park for recreational purposes. The plaintiffs did not dispute that Ms. Stofer was engaging in a “recreational” activity while attending the concert on the property. However, the plaintiffs opposed Mercer’s claim of immunity on the basis that there was at least a jury question as to the nature of Mercer’s “purpose” in hosting the concert, arguing that the purpose for which the owner invites the public onto its land “has to be purely recreational, purely noncommercial” without crossover to commercial endeavors.

The Georgia Supreme Court granted Mercer’s petition for certiorari, to determine the issue of whether immunity is available under the Act when the activity on the land is not “purely recreational, purely noncommercial.” The Court concluded that the Act requires a determination of the true scope and nature of the landowner’s invitation to use its property, and this determination properly is informed by two related considerations: (1) the nature of the activity that constitutes the use of the property in which people have been invited to engage, and (2) the nature of the property that people have been invited to use.

The court noted that whether a defendant is entitled to immunity under the Act will sometimes present a question of fact for a jury, especially in mixed-use cases. “[W]hether the [Act] applies to limit the liability of the owner of a certain property at a certain time is a question of law for the trial court[,]” but where there is a conflict in the evidence regarding whether people were invited to use property for recreational purposes, “it is for the fact finder to resolve the conflict[.]” The activity that people have been invited to engage in, and the nature of the property that people have been invited to use, are questions that our case law shows are often genuinely disputed. In the case of a genuine dispute of material fact, a jury must resolve the dispute.

With that, the Court remanded the case to the Court of Appeals to consider the proper evidence with respect to commercial activity occurring in the context of the free concert accompanied by a less than clear admonition with respect to what evidence would be improper or proper for that analysis. In short, while some of the evidence which has previously provided a limitation to immunity under the Act is now clearly improper, what evidence will create fact issues with regard to the immunity is not entirely clear.