Hogue v. Stone Mountain Memorial Ass'n

Benham, Judge,

dissenting.

I dissent from the opinion of the majority, which holds the Recreational Property Act (“RPA”) (OCGA § 51-3-20 et seq.) applicable to the facts of this case. I focus on the “business interest” exception to the applicability of the RPA, as enunciated in Cedeno v. Lockwood, 250 Ga. 799 (2) (301 SE2d 265) (1983). In that case, the Supreme Court held that if the public were invited upon land in furtherance of the owner’s business purposes, the RPA “will not shield the owner from liability even though the public receives some recreation as a side benefit.” Id. at 802.

I do not quarrel with the fact that appellee was created to administer Stone Mountain Park as a public recreation area. See OCGA § 12-3-191 (6). However, the association was empowered by the same legislation to operate the “project,” defined as the “accommodations, utilities, facilities, services, and equipment necessary or convenient, and all property . . . , including franchises and easements, in . . . operating Stone Mountain . . . and property adjacent thereto . . .” Thus, there is a business aspect within the operation of the recreation area, a fact the majority acknowledges with its reference to the “substantial revenues [that] may be derived from the sale of special permits, concessions, and tickets to rides and other attractions located on the premises.” Majority opinion at p. 380. I object to the majority’s failure to take into consideration the business aspect of the Stone Mountain Memorial Association. Appellant presented evidence that she and her family expended funds within the park to camp, to enjoy various amusement rides, to shop, to eat, and to enter various museums. It is my opinion that appellant’s testimony shows that, while there is a recreational benefit to be derived from a visit to Stone Mountain Park, the public is also invited to further the business interests of appellee through the sales of food, merchandise, and services. In light of the evidence of the furtherance of appellee’s business interests, I do not believe summary judgment in favor of appellee, based upon the applicability of the RPA, was warranted, and therefore must respectfully dissent.

*382Decided May 29, 1987 Rehearing denied June 19, 1987 William H. Smith, Jr., for appellant. Michael J. Bowers, Attorney General, Daniel M. Formby, J. Robert Coleman, Senior Assistant Attorneys General, Angeline Mathis, for appellee.