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City of Tybee Island v. Godinho, 511 S.E.2d 517 (Ga. 1999).
 

Stacy Prewitt, 2L

Kristen M. Fletcher, J.D., LL.M.
 

In February, the Georgia Supreme Court ruled that the City of Tybee Island, a municipality that maintained a sidewalk for public access to the beach, was protected from liability under the state's Recreational Property Act (RPA). The RPA shields property owners from tort liability for injuries occurring on their property which they allow the public to use for recreational purposes without charge. The Georgia ruling highlights the RPA's goals of protecting landowners while encouraging use of public areas. Beachgoers in Mississippi and Alabama should be aware that these states have similar statutes.
 

Not Just Another Day at the Beach

This case arose from Jairza Godinho's visit to beach at Tybee Island where she fell and broke her wrist as a result of broken pavement on a city sidewalk. The sidewalk ran between a public parking lot and the beach. When Godinho sued, the City contended that because she was using the sidewalk for a recreational purpose, the RPA insulated the City from liability.

The RPA states that recreational purposes include activities ranging from hunting and fishing, to swimming and boating, to pleasure driving and "viewing or enjoying historical, archeological, scenic, or scientific sites."1 The trial court agreed that Godinho was using the sidewalk for a recreational purpose and that the city was shielded from liability but the Georgia Court of Appeals reversed, finding that the RPA did not apply in this case. First, it held that the RPA could not shield the City from liability because the State, rather than the City, owned the adjacent beach. Thus, the City was not the landowner meant to be protected by the statute. Second, the court concluded that the City had an underlying commercial purpose in providing the sidewalk and, thus, could not claim RPA protection. It found that "the City attracts the public to the beaches, not for the sheer recreational pleasure of the people, but because the public spends money in the City's businesses."2 The City appealed.

On appeal, the Supreme Court of Georgia first addressed the holding that the RPA was inapplicable because the State owned the adjacent beach. This rationale defeated the very purpose of the RPA because frequently, the recreational activities under the RPA involved a person using one person's land to enjoy property owned by a second person. The court dispensed with this issue concluding that "the plain language of the RPA extends protection to property owners who provide access to their property so that people may access or enjoy property that is actually owned by someone else."3

The Court also rejected the notion that the City's financial gain should remove RPA protection. Recognizing that "there is some evidence in the record from which it can be inferred that the City might receive an indirect financial benefit from the sidewalk," the primary purpose was to give the public a place of recreation rather than to make a profit from the use of the sidewalk.4 Finally, the Supreme Court found that applying the RPA to a municipal sidewalk does not conflict with a Georgia law holding a city liable for certain defects in its streets and sidewalks. Rather, the court held that when the sidewalk is used for a "recreational purpose," the RPA governs. Unfortunately, the court did not specify when an activity on a sidewalk may be non-recreational given the broad definitions in the RPA.
 

RPAs & the Gulf Coast

Like Georgia, Mississippi and Alabama have recreational use statutes providing that landowners owe recreational visitors only a duty of care to keep property safe and a duty to give a warning of a dangerous condition as long as the landowner receives no payment.5 Both Mississippi and Alabama require that landowners give public notice that the land is available for use and generally provide protection as long as the landowner does not act willfully or maliciously.6 Therefore, like beachgoers at Tybee Island, Georgia, visitors to beaches in Mississippi and Alabama should also beware that while they may have access to public beaches, a recreational property act may shield landowners from liability on these lands.
 

ENDNOTES

1. Ga. Code Ann. § 51-3-20 (1999).

2. Godinho v. City of Tybee Island, 499 S.E.2d 389, 391 (Ga.Ct.App. 1998).

3. City of Tybee Island v. Godinho, 511 S.E.2d 517, 518 (Ga. 1999).

4. Id. at 519.

5. Ala. Code §§ 35-15-1 to -28 (1998) and Miss. Code Ann. §§ 89-2-1 to -7 and 89-2-21 to -27 (1998).

6. Ala. Code § 35-15-28 (1998) and Miss. Code Ann. § 89-2-7 (1998).
 
 

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