Macon-Bibb Cnty. v. Kalaski

355 Ga.App. 24

842 S.E.2d 331

MACON-BIBB COUNTY

v.KALASKI.

A20A0412

Court of Appeals of Georgia.

April 24, 2020

James Bates Brannan Groover, Duke R. Groover, Lauren N. Schultz, Christopher R. Conley, for appellant.

Dozier Law Firm, J. David Dozier, for appellee.

Coomer, Judge.

In this interlocutory appeal, Macon-Bibb County appeals from the trial court's denial of its motion for summary judgment. Macon-Bibb County contends that sovereign immunity barred Ezell Kalaski's¹ premises liability lawsuit against it, and that the trial court therefore erred in denying its motion for summary judgment. We agree and reverse.

"On appeal from the denial or grant of summary judgment, the appellate court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." Watts v. City of Dillard , 294 Ga. App. 861, 861, 670 S.E.2d 442 (2008) (citation and punctuation omitted).

So viewed, the evidence shows that Kalaski was fishing from a dock on Lake Tobesofkee within Arrowhead Park, which is owned and operated by Macon-Bibb County. When stepping backward, Kalaski partially fell through the dock, sustaining injuries. The parties dispute whether Kalaski paid in order to enter the park and fish; Kalaski claims he did, while the County claims he did not.

Kalaski filed this premises liability action against Macon-Bibb County, alleging under OCGA § 51-3-1 that he was an invitee at the park and the County failed to exercise ordinary care in keeping the premises safe. In answering Kalaski's complaint, the County asserted that it was entitled to sovereign immunity, and that it was entitled to the privileges, immunities, and protections of the Recreational Properties Act ("RPA"), OCGA § 51-3-20 et seq.

OCGA § 51-3-22 of the RPA provides:

Except as specifically recognized by or provided in Code Section 51-3-25, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.

Similarly, OCGA § 51-3-23 provides:

Except as specifically recognized by or provided in Code Section 51-3-25, 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.

Kalaski filed a motion for summary judgment. Kalaski argued that Macon-Bibb County was not exempt from premises liability under the RPA because he paid a fee to the County prior to his admission to the park. Specifically, he relied on former OCGA § 51-3-25, which provided:

Nothing in this article limits in any way any liability which otherwise exists:

(1) For willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity; or

(2) For injury suffered in any case when the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that, in the case of land leased to the state or a subdivision thereof, any consideration received by the owner for the lease shall not be deemed a charge within the meaning of this Code section.

The County filed a cross-motion for summary judgment, arguing that it was totally immune from suit under sovereign immunity. The County asserted that sovereign immunity can only be waived pursuant to a legislative act specifically providing that sovereign immunity is waived and describes the extent of such waiver, and here there were no statutes that waived the County's sovereign immunity with respect to the injuries alleged by Kalaski. The County asserted that the RPA did not waive its sovereign immunity, and that the RPA only limits landowner liability and does not affirmatively establish any duties. Regarding Kalaski's motion for partial summary judgment, the County argued that in light of conflicting evidence as to whether Kalaski paid a fee prior to his admission to the park, there were genuine issues of material fact regarding whether the RPA applied to exempt the County from any liability.

Kalaski responded that the County was not entitled to sovereign immunity because the RPA constituted a waiver of sovereign immunity. Specifically, Kalaski asserted that while counties are generally immune from suit under the RPA, in enacting OCGA § 51-3-25 the legislature waived sovereign immunity and provided an exception for when the landowner charges an invitee a fee to use the land, and here the County charged him a fee.

Following a hearing, the trial court issued an order denying each party's motion for summary judgment. The trial court simply concluded that "genuine issues of material fact still remain with regard to [Kalaski's] admittance to the subject recreational facility." After the trial court granted a certificate of immediate review, Macon-Bibb County filed an application for interlocutory review, which we granted. This appeal followed.

On appeal, Macon-Bibb County argues that it is entitled to sovereign immunity because the RPA and its exceptions, including the charge exception of OCGA § 51-3-25 (2), do not constitute a waiver of sovereign immunity. The County asserts that the RPA simply provides that landowners generally owe no duty under traditional premises liability to users of property made available to the public for recreational purposes; this bar to suit applies to all landowners, public and private, and the bar and its exceptions have nothing to do with the sovereign immunity granted to the State, its departments, and its agencies; and the exceptions to the RPA only allow a plaintiff to circumvent the RPA. The County contends that there is no language in the RPA expressly waiving sovereign immunity or describing the extent of any such waiver, which is required in order to find a waiver of sovereign immunity. We agree.

"[S]overeign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is...