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Sovereign Immunity in Premises Liability Lawsuit in Georgia

Special issues may arise if you try to recover damages in an Atlanta premises liability lawsuit after being injured on government property because the government is ordinarily shielded from liability under the doctrine of sovereign immunity. This holds true unless the government has specifically waived its immunity for certain circumstances. In a recent case, a Georgia appellate court considered whether sovereign immunity barred the plaintiff’s premises liability suit against the county.

The case arose when the plaintiff was fishing in a county park. When he stepped backwards, he fell through the dock. He was hurt. The parties disagreed about whether the plaintiff had paid to go into the park and fish. He claimed he did, and the County claimed he didn’t. He brought a premises liability lawsuit against the county asserting under OCGA § 15-3-1 that he was an invitee at the park and the county had failed to use ordinary care in keeping the property safe.

The County answered the complaint by alleging it was entitled to sovereign immunity, along with the protection of the Recreational Properties Act. Under OCGA § 51-3-22, a landowner doesn’t owe a duty to keep the property safe for recreational purposes, or to warn about dangerous conditions to those entering for recreational purposes, except as specifically set forth in OCGA §15-3-25. Under OCGA § 51-3-23, a landowner who directly or indirectly invites or lets someone use the property for recreational reasons doesn’t give assurances the property is safe for any purpose. Permitting a visitor’s use also doesn’t confer the legal status of a licensee or invitee to whom a duty of care is owed.

The injured plaintiff moved for summary judgment, arguing that the county wasn’t exempt under the Recreational Properties Act because he’d paid a fee to the County before being admitted to the park. Under former OCGA § 51-3-25, there’s no limitation on liability that otherwise exists, if a property owner charges someone to go onto the land for recreational use, with an exception for consideration received by the owner for a lease.

The county’s cross-motion for summary judgment argued it had sovereign immunity. That sovereign immunity could only be waived according to a specific waiver by legislative act. The plaintiff argued that though counties were generally immune, § 51-3-25 waived sovereign immunity by giving an exception for situations in which a landowner charged a fee. In this case, the county had charged a fee.

The lower court denied both motions for summary judgment. The county appealed. It argued it was entitled to sovereign immunity because the Recreational Properties Act and its exceptions, including the charge exception of OCGA § 51-3-25(2) could not be construed as an express waiver of its sovereign immunity. It argued that the Recreational Properties Act only provided that landowners owed a duty under traditional premises liability rules in connection with property users made available to the public for recreational purposes. The rule had nothing to do with the sovereign immunity possessed by the county.

The appellate court agreed. It explained that sovereign immunity can only be waived by a specific Act of the General Assembly. Additionally, the party who is trying to benefit from a waiver needs to establish it. In this case the Recreational Properties Act didn’t have specific language providing a waiver. It was only a limitation of liability for landowners that allowed others to use the land for recreational purposes, where no fee was charged. It otherwise specifically stated it didn’t limit any liability that otherwise exists. In this case, there was no basis on which liability might otherwise exist for the county because it had sovereign immunity. The appellate court reversed.

If you were injured due to a dangerous property condition on government property, you should call an Atlanta premises liability attorney right away to discuss whether you have a viable lawsuit. Stephen M. Ozcomert has more than two decades of experience representing those injured in Atlanta accidents. He handles lawsuits all through Georgia. Call him at (404) 370-1000 to via our website.

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