It’s Not All Too Commercial: The Recreational Property Act (RPA) as Defined by Mercer University v. Stofer et al.
Landowners, businesses, and start-ups struck a victory for those looking to wear that “big weekend” grin on Friday afternoons in Mercer Univ. v. Stofer (Ga., 2019).
Stofer involved the tragic and fatal fall while she attended a division of Mercer University that promoted itself at Washington Park in Macon, Georgia, in July 2014. These very sympathetic facts took five years of civil litigation to reach the pinnacle attention of the Supreme Court of Georgia, which finally resolved lower courts’ confusion on just how intensive a fact-query they should conduct when a landowner (which will usually mean a business venture of some sort with the clout to organize, as the Coleman Legal Group does, 200-400 vendor tents, protected by security detail with safety and cautionary measures already taken care of) invites families and friends to a weekend get-together in a lovely local park to partake in the great variety of artists and artisans across the globe.
The high Court interpreted the applicable statute in question, the Recreational Property Act (RPA), which shields from liability a landowner “who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes[.]” OCGA § 51-3-23. Indicating that a fact-intensive investigation into the subjective motivations of landowners to invite persons onto their land goes beyond the scope of lower court inquiry, the Court held that an RPA defense involves two identifications: (1) What was the nature of the activity (recreational or not), for which invitees came onto the landowner’s land to participate in? and (2) What was the substantive purpose of the property invitees entered upon?
Put differently, the RPA lists types of activities that constitute “recreational activities” and the first question goes directly to that issue: was the act in question recreational in nature? And, if recreational, was the land used, at the applicable time, used for primarily for recreation or commercial gain?
The Court admonished the appellate court’s “subjective” and “speculative” evaluation into facts of why Mercer University chose such an event and what sort of indirect commercial benefit the University could have gleaned from hosting the event.
From the standpoint of a university as a functioning business entity, yes, of course, bringing families, couples, graduates, plus ones, potential applicants, and students to the University for a concert series staged on or around university grounds is a great way of advertising how great the ambiance of a particular school is, with future applicants and foundation donors just happening to be in the crowd. Naturally, there is a commercial side to any such event (apart from a flash mob) involving a stage, permits, private and public property, sophisticated sound and electrical equipment, and, the most precious and lucrative allurement: musical talent from long hours of practice and management in the hopes of going from guitar zero to hero.
Because there will always be some indirect financial benefit to be gained from a social gathering, as the one in Washington Park, and since the Court has excised “subjective motivations” from the inquiry, the RPA shield has been strengthened to allow for greater flow of commerce, as recreation inherently involves a level of commercialism. For example: for purposes of recreation, nostalgia, and to hearken its residents back to an era of vintage cinema, a city decides to play a classic movie that was staged on the very location of one of its iconic scenes, such as a famous bridge, by projecting the film onto a side of that wall, large enough to be seen by 200 movie-goers. This can only be well-executed at night, which, for purposes of this hypothetical situation, is quite dangerous: it’s difficult to see and that bridge is present most likely for a good purpose: for people to be able to cross a large body of steep terrain or an unnavigable body of land or water. Although there are precautionary measures set out in place, they prove to be of no use in dissuading a couple from sneaking closer to the edge of the steep terrain to gain a better view of the film. Little do they know that the ground they are moving towards is unstable, with thinning grass to hold back the loose soil, the couple falls and suffer severe injuries.
The lawyers representing the plaintiffs that fell will undoubtedly assert that the cost they paid to see the film is indicative of purely a commercial purpose; after all, it’s cinema and has “Hollywood” spelled all over it. That business with linking the bridge with the film wasn’t for historical purposes at all; rather, the bridge itself was always a commercial lure to the film no matter what the event or the age because the film’s commercialism is inseparable from the famous meaning and retention of the bridge.
In response, the landowners likely would have indicated in its permit to use this part of the bridge to host the film the very historical and recreational purpose originally intended. The prices for admission would also be in question, whether they were meant to fund a relatively noncommercial purpose, such as the maintenance of the bridge, or if the lowest overhead for admission was used just to cover the costs involved in staging such an event. The hypothetical also states that we are dealing with a fixed number of predicted movie-goers and no more, which can be generalized as contrary to a commercial venture. By contrast, is it common to hear of a “customer cap” in stores that naturally want to bring in as many consumers as possible? The same cannot be said here, where a limit has been placed.
A possible response to this last argument is that it was intended by the city that such a big event with limited invitations would cause other areas of commercialism to take form, such as scalpers, who, for the sake of argument, are city officials who have bought or given the tickets and sell them at twice their face value.
Even then, where was the money going? Was it an artificial plan to generate revenue for personal gain (which is to say, graft)? Or was it simply the natural laws of supply and demand taking effect, meaning that there was nothing anyone could do about it and the movie-goers had a demand equal to 1, which is an economic way of saying that a person who decides to be a moviegoer pays the price of one ticket, no matter the price of that ticket. It is no different than a driver who fills up his or her tank of gasoline once per week, no matter what the price of gas. The demand is not infinite because the driver and the movie-goer purchase a finite number of gas and of tickets, not an unlimited amount. This is the point where the facts of the case matter and where the Stofer Court wrote, at length, to describe the fact-driven nature of the RPA defense will depend on a case by case basis.
Not all that glitters is gold. Just because money is involved, that, alone, will not defeat an RPA defense. As a testament to the doctrine of comparative advantage, everything will have a cost. The best way to control the outcome of such a case, as hypothetically described above, is through sound organizational and contractual planning that a lawyer skilled in business organization, contract drafting, negotiation, and civil litigation can provide.