THIRD DIVISION
ELLINGTON, P. J.,
ANDREWS and RICKMAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 14, 2018
In the Court of Appeals of Georgia
A17A1944. HANDBERRY v. STUCKEY TIMBERLAND, INC.
ELLINGTON, Presiding Judge.
Marie Handberry, as surviving spouse and executor of the estate of William
Donald Handberry, Sr., (“the decedent”) contends that the Superior Court of Dodge
County erred in dismissing part of her wrongful death complaint against Stuckey
Timberland, Inc. (“Stuckey”). Because the trial court properly granted Stuckey’s
partial motion to dismiss for failure to state a claim given the applicability of the
Recreational Property Act, OCGA § 51-3-20 et seq., (“the RPA”) and OCGA § 27-3-
1 (e), which extends the protections of the RPA to owners who allow entry onto their
land for hunting, we affirm.
On appeal of a trial court’s ruling on a motion to dismiss, our review is de
novo. Penny v. McBride, 282 Ga. App. 590 (639 SE2d 561) (2006). “However, we
construe the pleadings in the light most favorable to the plaintiff with any doubts
resolved in the plaintiff’s favor.” (Citation and punctuation omitted). Ga. Dept. of
Community Health v. Data Inquiry, 313 Ga. App. 683 (722 SE2d 403) (2012). Our
role is “to determine whether the allegations of the complaint, when construed in the
light most favorable to the plaintiff, and with all doubts resolved in the plaintiff’s
favor, disclose with certainty that the plaintiff would not be entitled to relief under
any state of provable facts.” (Citation, punctuation and footnote omitted.) Penny v.
McBride, 282 Ga. App. at 590. See also Southwest Health & Wellness v. Work, 282
Ga. App. 619, 623 (2) (639 SE2d 570) (2006) (on appeal of a motion for judgment
on the pleadings, “the issue is whether the undisputed facts appearing from the
pleadings entitle the movant to judgment as a matter of law”) (citation and
punctuation omitted). Additionally, when ruling on a motion to dismiss for failure to
state a claim or a motion for judgment on the pleadings, the courts may consider
written instruments attached to and incorporated into the complaint and answer.1 See
OCGA § 9-11-10 (c) (“A copy of any written instrument which is an exhibit to a
pleading is a part thereof for all purposes.”); Trop, Inc. v. City of Brookhaven, 296
1
In granting the motion to dismiss, the superior court considered the terms of the
hunting lease, which was attached to and incorporated into Stuckey’s answer.
2
Ga. 85, 89 (2) (764 SE2d 398) (2014); Shelnutt v. Mayor and Aldermen of the City
of Savannah, 333 Ga. App. 446 (776 SE2d 650) (2015).
Handberry alleged that Stuckey owns and manages real estate in middle
Georgia, including 488.92 acres in Jefferson County. In June 2015, Stuckey leased
the Jefferson County property to Robbie Brett “only for fishing and hunting
purposes.” The lease expressly contemplated that Brett’s “agents, servants,
employees, and guests” would be permitted access to the property. It further provided
that no guest of Brett’s “shall at any time exercise any . . . right or privilege [under
this agreement] except and in accordance with this agreement” and only after signing
a release and indemnity agreement in favor of Stuckey.
After entering into the lease, Brett formed a hunting club with several friends,
including the decedent, who paid a portion of the cost of Brett’s lease so that he could
share in the right to enter the property and hunt. On July 25, 2015, the decedent
entered onto the property to look “at the property in preparation for hunting there at
a later time.” He rode a four-wheel vehicle over an abandoned well concealed by tall
grass, and the vehicle flipped over. He was ejected from the vehicle and trapped
inside the well, where he died.
3
Handberry sued Stuckey, alleging that it had both actual and constructive
knowledge of the well, that it had a duty to warn against dangerous conditions on the
property, that it was required to inspect the property, that its conduct was willful and
malicious as well as negligent, and that it’s actions had proximately caused her
husband’s death. In the factual averments of the complaint, Handberry alleged that
the decedent was “not hunting” at the time of the incident, but that he was scouting
hunting locations. Stuckey filed a partial motion to dismiss, partial motion for
judgment on the pleadings, and motion to strike, asking the court to dismiss claims
based on ordinary negligence and to strike any references to constructive knowledge
and a duty to inspect. Stuckey argued that either: (1) the decedent was on the property
for hunting purposes, in which case the RPA precluded liability for claims of
negligence against Stuckey; or (2) the decedent was not on the property for hunting
purposes, in which case he was trespassing, and Stuckey could only be liable for
causing willful and wanton injury, which requires actual knowledge of the peril. The
trial court agreed, granting the partial motion to dismiss and motion to strike “[a]ll
allegations of negligence and constructive knowledge[.]” The trial court did not
4
dismiss those claims based upon actual knowledge of the peril and willful or
malicious conduct. It is from this order that Handberry appeals.2
The stated purpose of the RPA “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.” OCGA
§ 51-3-20.
In order to achieve this purpose, the RPA specifies that an owner of land
who either directly or indirectly invites or permits without charge any
person to use the property for recreational purposes may not be held
liable for personal injuries resulting from unsafe or defective conditions
existing on the premises, unless such injuries resulted from willful or
malicious failure to guard or warn against a dangerous condition, use,
structure, or activity.
(Citations and punctuation omitted.) South Gwinnett Athletic Assn. v. Nash, 220 Ga.
App. 116, 117 (1) (469 SE2d 276) (1996). See OCGA §§ 51-3-23; 51-3-25 (1). The
protections of the RPA also extend to “[a]ny owner of land, lessee of land, or lessee
of the game or fishing rights to land who gives permission to another person to hunt,
fish, or take wildlife upon the land with or without charge[.]” OCGA § 27-3-1 (e). In
2
This Court granted Handberry’s application for an interlocutory appeal to consider
the application of the RPA under the circumstances of this case.
5
order to establish an exception to this limitation of liability based on a willful or
malicious failure to guard or warn against a dangerous condition, a plaintiff must
show that the owner had actual knowledge of the dangerous condition. Collins v. City
of Summerville, 284 Ga. App. 54, 56 (643 SE2d 305) (2007). “Constructive
knowledge is not sufficient, and no duty to inspect is imposed on the property
owner.” (Footnote omitted.) Id. Whether the RPA applies to the facts of a case is a
question of law for the court. Gayle v. Frank Callen Boys & Girls Club, Inc., 322 Ga.
App. 412, 414 (745 SE2d 695) (2013).
As the trial court correctly determined, the decedent’s visit to the property to
scout it for future hunting fell within the legal definition of hunting. See OCGA § 27-
1-2 (39) (“‘Hunting’ means pursuing, shooting, killing, taking, or capturing wildlife
or feral hogs. This term also includes acts such as placing, setting, drawing, or using
any device used to take wildlife or feral hogs, whether any such act results in taking
or not, and includes every act of assistance to any person in taking or attempting to
take such wildlife or feral hogs.”) (emphasis supplied). The decedent’s act of scouting
hunting locations was an act of assistance to himself and the members of the hunting
club in the taking of wildlife; therefore, the court correctly concluded that the RPA
precluded liability unless the decedent’s death was proximately caused by Stuckey’s
6
willful or malicious failure to guard or to warn against a known dangerous condition.
See Collins v. City of Summerville, 284 Ga. App. at 56. In the alternative, the trial
court also concluded that, if the decedent was not on the property for the permitted
hunting purposes, he was a trespasser to whom Stuckey owed only a duty “to refrain
from causing a willful and wanton injury” pursuant to OCGA § 51-3-3 (b) (“A lawful
possessor of land owes no duty of care to a trespasser except to refrain from causing
a willful or wanton injury.”). We agree.
Handberry argues that the decedent was on the property with Brett’s
permission, not Stuckey’s. He contends, therefore, that because Stuckey did not
directly give the decedent its permission to be on the land, it is not protected by the
RPA. He argues that the RPA, as applied to those who enter onto property to hunt or
fish pursuant to OCGA § 27-3-1 (e), extends only to an owner or lessee “who gives
permission to another person to hunt.” (Emphasis supplied.) OCGA § 27-3-1 (e).
This argument is without merit for the following reasons.
The plain language of the lease shows that Stuckey had, in fact, given
permission not just to Brett but to Brett’s guests to be on the leased property for
hunting purposes. Therefore, the decedent, as a member of the class of people
authorized to be on the property, had Stuckey’s express or direct permission to enter
7
upon the land for hunting purposes. Further, even though the lease does not
specifically name the decedent and grant permission to him individually, that does not
alter the application of the RPA to this case. OCGA § 27-3-1 (e) provides that
[a]ny owner of land, lessee of land, or lessee of the game or fishing
rights to land who gives permission to another person to hunt, fish, or
take wildlife upon the land with or without charge shall be entitled to
the same protection from civil liability provided by Article 2 of Chapter
3 of Title 51 for landowners who allow the public to use their land for
recreational purposes without charge.
Article 2 of Chapter 3 of title 51 includes OCGA § 51-3-23, which expressly provides
that an owner’s permission may be direct or indirect.3 Though Brett, as the lessee of
the land, was the one who personally invited the decedent to use the land, he was
doing so pursuant to a lease that authorized him to invite guests onto the property for
hunting purposes, thereby extending Stuckey’s grant of permission to use the property
for hunting purposes. Thus, even if Stuckey’s grant of permission to the decedent can
be construed to be indirect through Brett, the RPA nevertheless applies under these
circumstances. See OCGA § 51-3-23.
3
OCGA § 51-3-23 provides, in relevant part, that “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” incur certain enumerated liabilities.
8
We also note that, if the decedent had entered onto the property for a purpose
not contemplated under the lease agreement, his status with respect to Stuckey would
have been that of a trespasser.4 The plain language of the lease authorizes Brett and
his guests to enter onto the property, but “only for hunting and fishing purposes.”
Although Brett may have invited the decedent onto the property for what Handberry
argues does not qualify as hunting, Stuckey gave neither Brett nor the decedent
permission to use the property for anything other than hunting or fishing purposes,
and Brett can convey no greater right to use the property than he obtained under the
lease.5 Thus, if the decedent’s use of the property was for anything other than an
authorized purpose, it was wrongful, making him a trespasser. See Matlack v. Cobb
Elec. Membership Corp., 289 Ga. App. 632, 633-634 (658 SE2d 137) (2008) (a
trespasser is one who, even though peacefully or by mistake, wrongfully enters upon
property owned or occupied by another). And, generally, a landowner owes no duty
4
In a premises liability case, a person may have more than one status at the same
time in relation to different entities. See, e.g., Chambers v. Peacock Constr. Co., 115 Ga.
App. 670, 675-677 (4), (5) (155 SE2d 704) (1967) (plaintiff was invitee of general
contractor and licensee of subcontractor).
5
See Powell v. Norman Elec. Galaxy, 255 Ga. App. 407, 409 (1) (565 SE2d 591)
(2002) (Pursuant to OCGA § 44-7-11, a tenant “has no rights beyond the use of the land
actually conveyed or rented.”)
9
to a trespasser except to avoid “willfully or recklessly injur[ing] him.” Harrison v.
Plant Improvement Co., Inc., 273 Ga. App. 884, 886 (2) (616 SE2d 123) (2005)
(citing Trammell v. Baird, 262 Ga. 124 (413 SE2d 445) (1992)). Further, until the
landowner “knows of the peril to the trespasser, there can be no duty to warn the
trespasser.” (Citation and punctuation omitted.) Crosby v. Savannah Electric &c. Co.,
114 Ga. App. 193, 207 (150 SE2d 563) (1966). And the owner owes no duty to a
trespasser “to inspect the premises or to prepare a safe place for his reception.”
(Citations omitted.) Id. at 202.
Given the applicability of the RPA to this case, Handberry’s complaint
discloses with certainty that she would not be entitled to relief under any state of
provable facts for her claims of negligence based on constructive knowledge,
ordinary diligence, or a duty to inspect for and to warn of unknown perils. For these
reasons, Handberry has not shown legal error below and the judgment of the superior
court is, therefore, affirmed.
Judgment affirmed. Andrews and Rickman, JJ., concur.
10