M. Blake Walker

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In 1965, the Georgia General Assembly passed the Recreational Property Act (RPA or the Act), which generally grants landowners protection from liability when they open up their property for recreational purposes. Almost all states have enacted recreational use statutes, and it has been said that these statutes “codify tort principles that are universally recognized in common-law jurisdictions with regard to duties owed by owners and occupiers of property to those who come upon such property merely as licensees to use it for outdoor recreational purposes.” The Georgia version declares, “The purpose of this [law] is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners’ liability toward persons entering thereon for recreational purposes.” Until recently, the wording of the law has remained largely unaltered since its adoption in 1965. In fact, one of the only changes to the language of the law since 1965 was made in 2014, when the Georgia General Assembly extended the scope of recreational activities to include “aviation activities.

Generally, the RPA allows owners of land to “owe[] 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.” Furthermore, when such a recreational property is open to the public for recreational use, the owner does not “[c]onfer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.” This is in contrast to the general premises liability law in Georgia, which states that whenever “an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”

On its face, the language and purpose of the RPA are simple. However, because of the simplicity in the language of the statute, Georgia appellate courts have disagreed about how, when, and to whom the RPA should be applied. The Georgia Supreme Court recently defined the test in determining when the RPA applies:

[T]he true scope and nature of the landowner’s invitation to use its property, and this determination 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.

In other words, the two-part test’s first question asks whether the activity in which the public was invited to engage was of a kind that qualifies as recreational under the Act, and the second asks whether, at the relevant time, the property was of a sort that is used for recreational purposes.

This two-part test will be discussed further in this Comment, including how the law has recently been applied in Georgia, and what criteria courts do and do not consider when deciding whether the law applies. As this Comment will explain, recent changes on this front indicate that property owners will more easily be able to utilize the protection of the Act.

Another change involving the RPA was sparked when a recent case resulted in an unpopular outcome concerning the injury of a six-year-old girl attending a youth football game. Because of the Georgia Supreme Court’s statutory interpretation of the Act, the little girl was barred from recovering for her injuries. The court’s opinion could not be used for precedent long, however, because the Georgia General Assembly acted remarkably quickly to amend the RPA— altering the language of the law more than any other amendment has since the Act’s adoption in 1965.

This Comment will explain how the new amendment to the RPA, contrary to the new test for determining the applicability of the RPA, will limit property owners’ use of the RPA’s protection, and could even result in many recreational activities being excluded from protection under the Act.