Gloria McLamb v. Mayor and Aldermen of the City of Savannah (2026)

This appeal involves the proper application of the Recreational Property Act (“the Act”), OCGA § 51-3-20 et seq., which limits liability for property owners who make their property available to the public for “recreational purposes.” We reiterate the test for determining whether a property owner is immune from liability under the Act as articulated in Mercer University v. Stofer, 306 Ga. 191 (2019). That test focuses on determining the “true scope and nature” of the landowner's invitation to use its property, which 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.” Id. at 196 (emphasis omitted). We affirm the Stofer test, and we vacate and remand for the Court of Appeals to apply the test as we clarify it today.

I. Facts and Procedural History

As summarized by the Court of Appeals:

This is a trip and fall action brought by Gloria McLamb against the Mayor and Aldermen of the City of Savannah (collectively “the City”). The City filed a motion for summary judgment, which the trial court denied. On appeal, the City contends that, inter alia, the trial court erred by holding that the Georgia Recreational Property Act, OCGA § 51-3-20 et seq., was unconstitutional and that the Act did not bar McLamb's claims against the City. ․

[Viewed under the summary judgment standard], the record shows that McLamb visited Savannah with her family in April 2019. During her stay, McLamb and several members of her family took a trolley tour around Savannah to do some sightseeing. Following the trolley tour, she and her family visited the historic Davenport House and decided to walk back to their hotel. McLamb and her family's route took them onto the sidewalk of Savannah's National Historic Landmark District. While walking as a group, McLamb tripped on a raised paver in the sidewalk. McLamb deposed that she did not see the paver prior to her fall.

The City moved for summary judgment arguing that, inter alia, the Act barred McLamb's claims against the City.

The trial court [denied summary judgment, concluding] that questions of fact existed regarding whether the sidewalk was recreational property and held that applying the [Act] to McLamb's claims would violate the Georgia Constitution's equal protection clause, agreeing with McLamb's argument that the application of the [Act] would result in disparate treatment between Savannah tourists and local residents. See Ga. Const. Art. of 1983, Art. I, Sec. I, Par II.

Mayor & Aldermen of City of Savannah v. McLamb, 376 Ga. App. 482, 482–83 (2025) (cleaned up).¹ The trial court granted the City a certificate of immediate review, and the Court of Appeals granted the City's ensuing application for interlocutory appeal.

The Court of Appeals reversed the trial court's denial of the City's motion for summary judgment and held that the City is entitled to immunity under the Act. See id. at 484–86. In doing so, the Court of Appeals correctly articulated the test set forth in Stofer for determining whether a property owner is immune from liability under the Act:

[T]he true scope and nature of the landowner's invitation to use its property must be determined, and this determination properly 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 first 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 primarily for recreational purposes or primarily for commercial activity.

Id. (quoting Stofer, 306 Ga. at 196). The Court of Appeals then identified the facts it deemed relevant to determining the nature of the activity and the nature of the property in this case. As to the nature of the property, the Court of Appeals stated that McLamb “chose to walk back to her hotel instead of riding the trolley because she enjoyed sightseeing and wanted to see the parks, old buildings, and big trees[,]” and “McLamb deposed that she was looking up at a tree when she fell.” Id. at 485. The Court of Appeals explained that OCGA § 51-3-21(4)’s list of activities specifically includes “ ‘viewing or enjoying historical, archeological, scenic, or scientific sites[,]’ ” so McLamb “was engaging in activities that are expressly covered by statute.” Id. (quoting OCGA § 51-3-21(4)). As to the nature of the property, the Court of Appeals stated that “the sidewalk where McLamb fell was owned by the City[,]” the sidewalk is “located in Savannah's National Historic Landmark District[,]” and “there is no fee charged to engage in sightseeing.” Id. The Court of Appeals concluded that “[t]he evidence in the record shows that both the nature of the activity McLamb was engaged in, and the nature of the property that she was on, were recreational.” Id. at 486. Thus, the Court of Appeals held that “the City is entitled to immunity under the [Act] and the trial court erred by denying its motion for summary judgment.” Id. at 486.²

McLamb timely filed a petition for certiorari, claiming, among other things, that the Court of Appeals misapplied the Stofer test. We granted the petition, asking the parties to address to what extent under the Act a property owner's duty of care to a person using that property may be informed by the nature of that person's activity on the property.

II. Analysis

We begin our analysis with a consideration of the relevant portions of the Act. We then recount Stofer’s articulation of the test for determining whether a property owner is immune from liability under the Act, and we decline the City's invitation to limit or overrule Stofer. We then turn to the Court of Appeals's application of the Act in this case: we clarify that Stofer’s nature-of-the-activity inquiry is focused primarily on what the public was generally invited to do on the property, rather than the plaintiff's actual use of the land at the precise moment of injury; and we hold that the Court of Appeals erred in treating McLamb's use of the property as dispositive as to the nature of the activity. Accordingly, we vacate and remand for the Court of Appeals to properly apply the test for determining whether a landowner is entitled to immunity under the Act, and if necessary, to address the other arguments made by the parties below.

A. The Act

“With certain exceptions, the Act gives immunity to those who, without charge, allow the public to use their property for recreational purposes.” Stofer, 306 Ga. at 194. The codified purpose of the Act, as set forth in OCGA § 51-3-20, “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.” In outlining the scope of the Act's immunity from liability, OCGA § 51-3-22 provides:

Except as specifically recognized by or provided in Code Section 51-3-25, an owner of land[3] owes 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.

OCGA § 51-3-25(1) provides an exception from immunity under the Act “[f]or willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.”⁴ OCGA § 51-3-23 provides:

Except as specifically recognized by or provided in Code Section 51-3-25, 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: (1) Extend any assurance that the premises are safe for any purpose; (2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed; or (3) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.

OCGA § 51-3-21(4) defines “[r]ecreational purpose” by way of a list of examples of activities in which people might engage, which “includes, but is not limited to, any of the following or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, aviation activities, nature study, water skiing, winter sports, and viewing or enjoying historical, archeological, scenic, or scientific sites.”

B. Stofer clarified the test for determining whether a property owner is immune from liability under the Act.

In Stofer, we clarified the test for determining whether a property owner is immune from liability under the Act. See 306 Ga. 191. The plaintiffs in Stofer brought claims on behalf of the decedent against the defendant, Mercer University, after the decedent was fatally injured during a concert hosted by the defendant. See id. at 192. The defendant moved for summary judgment, arguing in part that it was immune from liability under the Act. See id. The trial court denied the defendant's motion as to its claim of immunity under the Act, and the Court of Appeals affirmed, focusing on the defendant's “purpose in inviting the public to attend the free concert.” Id. at 193 (quotation marks omitted). We granted the defendant's petition for certiorari to “[c]larify[ ] the standard for determining whether immunity is available under the Act, and reaffirm[ ] that this question sometimes, but not always, presents a dispute of material fact requiring resolution by a jury[.]” Id.

We identified the issue in Stofer to be the “meaning of the phrase ‘invites or permits without charge any person to use the property for recreational purposes’ ” in OCGA § 51-3-23. Stofer, 306 Ga. at 195. We noted that “the Act defines ‘recreational purpose’ only by way of a list of examples of activities in which people might engage[.]” Id. (citing OCGA § 51-3-24(1)). “As a result,” we explained, “our case law has primarily focused on determining the nature of the ‘activity’ in which people have been invited to engage.” Id. at 195. We also explained that “application of the phrase ‘invites or permits’ in OCGA § 51-3-23 necessarily involves some consideration from the perspective of the landowner in the sense that immunity under the Act turns on whether the land-owner actually invited people onto the property ․ to do something ‘recreational,’ or whether people have instead been allowed onto the property to engage in commercial activity.” Id. at 196.⁵ We then discussed our case law interpreting the Act and concluded that “the key teachings of our cases can be distilled into a test that is more connected to the statutory text[.]” Id. at 196–99. That test requires a determination of “the true scope and nature of the landowner's invitation to use its property.” Id. at 196. 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.” Id. The nature-of-the-activity inquiry “asks whether the activity in which the public was invited to engage was of a kind that qualifies as recreational under the Act[.]” Id. at 196. And the nature-of-the- property inquiry “asks whether at the relevant time the property was of a sort that is used primarily for recreational purposes or primarily for commercial activity.” Id. We also clarified that “[i]t is improper to consider a landowner's subjective motivations in determining whether the landowner is entitled to immunity under the Act.” Id. at 199. In doing so, we explained that the defined term “recreational purposes,” see OCGA § 51-3-21(4), when read “in the context of its use in OCGA § 51-3-23, ․ does not refer to a landowner's reason for opening land; rather, the statute uses the term to refer to the activities in which invited people will engage.” Stofer, 306 Ga. at 199. Having clarified the test, we remanded for the Court of Appeals “to determine whether there is evidence ․ creating a dispute of fact as to whether [the defendant] invited [the plaintiff] to use its property for predominantly ‘recreational purposes.’ ” Id. at 203–04.

C. We decline the City's invitation to limit or overrule Stofer.

On appeal, the City argues that “a person's use of the property is a threshold factor in determining the applicability of the” Act.⁶ The City also argues that the Act “does not require an inquiry into whether a property is ‘primarily recreational or primarily commercial,’ or whether the activity was of a type that falls on a commercial or recreational spectrum. Nor does the statute contain the words ‘primarily,’ ‘predominantly,’ or ‘commercial.’ ” So, the City argues that “[t]o the extent Stofer [ ] does not follow the statutory scheme, it should be limited or overruled.” But, as demonstrated above, Stofer articulated its test after “careful consideration of the statutory text and a thorough review of our case law[.]” Stofer, 306 Ga. at 191. This produced a test focused on the landowner's invitation, which is determined in part from the perspectives of the public and of the landowner (that is, what the landowner invited the public to do on the land), rather than from the perspective of any individual plaintiff (that is, what an individual plaintiff was doing on the land when she was injured). See OCGA § 51-3-23 (granting immunity, subject to exceptions not relevant to our conclusion here, to a landowner who “invites or permits without charge any person to use the property for recreational purposes”). Thus, Stofer was correct in its articulation of the test for determining whether a property owner is immune from liability under the Act. Accordingly, we decline the City's invitation to limit or overrule Stofer.⁷

D. The Court of Appeals erred in its application of the Act in this case.

In reviewing the Court of Appeals's reversal of the trial court's order denying the City's motion for summary judgment, we review legal questions de novo and review the evidence in the light most favorable to the nonmoving party to determine whether there is a genuine issue of material fact. See Milliken & Co. v. Ga. Power Co., 306 Ga. 6, 8 (2019).

The Court of Appeals articulated the correct test for determining whether a property owner is immune from liability under the Act as clarified in Stofer. See McLamb, 376 Ga. App. at 484 (citing Stofer, 306 Ga. at 196). The Court of Appeals then held that both the nature of the activity McLamb was engaged in when she was injured and the nature of the property she was on were recreational. See McLamb, 376 Ga. App. at 485–86. In so holding, the Court of Appeals applied the Stofer test incorrectly by treating McLamb's actual use of the land when she was injured as dispositive on the nature-of-the-activity inquiry.

1. The first prong is focused primarily on what the public was generally invited to do on the property, rather than the plaintiff's actual use of the land at the precise moment of injury.

When determining the “true scope and nature” of the landowner's invitation to use its property, the first consideration is “the nature of the activity that constitutes the use of the property in which people have been invited to engage.” Stofer, 306 Ga. at 196. As we explained, “[a]lthough the word ‘purpose’ often refers to a person's subjective motivation for doing something ․, that is not the sense in which the Act uses the word in the phrase ‘recreational purpose.’ ” Id. at 195. “Instead,” we explained, “the Act defines ‘recreational purpose’ only by way of a list of examples of activities in which people might engage[.]” Id. (citing OCGA § 51-3-21(4)). The nature-of-the-activity inquiry “asks whether the activity in which the public was invited to engage was of a kind that qualifies as recreational under the Act.” Id. As explained in Stofer, and as we reiterate today, immunity under the Act turns on what “the landowner actually invited people onto the property” to do, involving “some consideration from the perspective of the landowner.” 306 Ga. at 196 (emphasis omitted). So, for the nature-of-the-activity inquiry, the central question is whether the public is invited to engage in recreational activity, rather than whether the plaintiff herself in fact engaged in recreational activity. See id. at 191 (explaining that “whether immunity is available under [OCGA § 51-3-23] requires a determination of the true scope and nature of the landowner's invitation” (emphasis added)); id. at 199 (explaining that our decision in Atlanta Committee for the Olympic Games, Inc. v. Hawthorne, 278 Ga. 116 (2004), “is properly understood as holding that a jury trial is required when there is a dispute of fact as to the nature and scope of the invitation for people to use the landowner's property, with a focus [in part] on ․ the nature of the activity in which the public was invited or permitted to engage, i.e., were members of the public invited to enter Centennial Olympic Park to shop, or were they invited to engage in some recreational activity, or, if both, which predominated” (emphasis added)).

In clarifying the proper consideration for the nature-of-the-activity inquiry, we do not mean to suggest that the activity in which the plaintiff actually engaged is never relevant. But, at most, under our precedent, what the plaintiff was actually doing when she was injured, and whether that activity is considered “recreational” under the Act, is only one element of the totality of the circumstances the trial court must consider in determining what the public was generally invited to do on the property. In other words, the fact that a plaintiff was engaging in a certain activity when she was injured might provide some indication that the public was generally invited to engage in that activity, but an individual plaintiff's actual use of the property is not dispositive on that point. See Anderson v. Atlanta Comm. for the Olympic Games, 273 Ga. 113, 116–17 (2000) (explaining that the “balancing test” this Court adopted from the Wisconsin Court of Appeals “ ‘does not preclude consideration of the user's subjective assessment of the activity,’ but as in the Stone Mountain Park cases, the user's assessment is not the controlling factor” (citation omitted) (quoting Silingo v. Village of Mukwonago, 156 Wis.2d 536, 544 (1990); citing Quick v. Stone Mountain Mem. Ass'n, 204 Ga. App. 598 (1992); Hogue v. Stone Mountain Mem. Ass'n, 183 Ga. App. 378 (1987)). Cf. City of Tybee Island v. Godinho, 270 Ga. 567, 569 n.12 (1999) (“Although not a determinative factor in this case, we note that [the plaintiff] testified that she was using the sidewalk for [a] recreational purpose when she was injured.”); Carroll v. City of Carrollton, 280 Ga. App. 172, 175 & n.3 (2006) (stating that “[a]pplication of the [Act] does not turn on how the individual plaintiff used or intended to use the recreational property” but “[t]he individual plaintiff's use of the property at issue is relevant in ‘mixed use’ cases”).

2. The Court of Appeals erred in treating McLamb's use of the property as dispositive on the first prong.

Having clarified the limited weight that should be given to the plaintiff's actual use of the property when determining the nature of the activity in which the public has been invited to engage, we now address the Court of Appeals's analysis in this case.

Here, the Court of Appeals erred by treating the evidence of what McLamb was actually doing when she was injured as dis-positive on the first prong of the test. The Court of Appeals held that “the record, and in particular McLamb's own deposition testimony, make it clear that she was engaging in activities that are expressly covered by statute[,]” so “[t]he nature of the activity was, objectively, recreational.” McLamb, 376 Ga. App. at 485. In support of this holding, the Court of Appeals pointed to evidence of what McLamb herself was actually doing when she was injured:

Important here is not what McLamb denied, but what she admitted: that she chose to walk back to her hotel instead of riding the trolley because she enjoyed sightseeing and wanted to see the parks, old buildings, and big trees. In fact, McLamb deposed that she was looking up at a tree when she fell. This evidence clearly and objectively reflects the purpose of her visit and the nature of her activities.

Id. But for the nature-of-the-activity inquiry, rather than focusing exclusively on what McLamb was doing on the property when she was injured, the Court of Appeals should have principally considered the activity the public was generally invited to do on the property and whether that activity is properly classified as “recreational” under the Act. What McLamb was actually doing on the property when she was injured is at most just one part of that assessment. Accordingly, we vacate and remand for the Court of Appeals to properly apply the test (as articulated in Stofer and clarified today) for determining whether a landowner is entitled to immunity under the Act,⁸ and if necessary, to address the other arguments made by the parties below.⁹

FOOTNOTES

1.   The trial court also rejected other arguments raised by the City that are not relevant to our holding here.

2.   McLamb also argued before the trial court that the Act is unconstitutionally vague and thus violates due process. It is unclear whether the trial court squarely ruled on that issue. The Court of Appeals rejected similar arguments on appeal by applying our holding in Anderson v. Atlanta Committee for the Olympic Games, 273 Ga. 113, 115 (2000) (rejecting due process and equal protection challenges to the Act because the statute “reasonably promotes the legitimate governmental purpose of making recreational property more accessible to the public and the classification the Act draws between those persons injured while on recreational property and those persons injured on other premises is rationally related to this legitimate purpose”). See McLamb, 376 Ga. App. at 484. We did not grant certiorari to reconsider Anderson or otherwise pose constitutional questions, and do not address any constitutional arguments in this opinion.

3.   On appeal, McLamb does not argue that the City does not qualify as an “owner” for purposes of the Act, defined in OCGA § 51-3-21(3) as “the possessor of a fee interest, a tenant, a lessee, an occupant, or a person in control of the premises.” Some of us are skeptical that the text of the Act is best read as applying to government owners. But we held that the Act applies to government owners shortly after its enactment and have applied it that way ever since. See Stone Mountain Mem. Ass'n v. Herrington, 225 Ga. 746, 748–49 (1969) (“Defendants in certiorari ․ contend that the 1965 Act was intended to apply merely to privately owned land such as lands held by farmers. ․ Nothing on the face of this Act indicates in any way an intention on the part of the legislature to so limit its effect.”). And McLamb does not argue that we should overrule that case law, much less explain why principles of stare decisis would counsel in favor of doing so. We apply that case law here.

4.   This section also provides one other exception clarifying that any consideration received by an owner for leasing the land to the state or a subdivision of the state is not a “charge” under the Act. See OCGA § 51-3-25(2) (“On a date when the owner of land charges any individual who lawfully enters such land for recreational use and any individual is injured in connection with the recreational use for which the charge was made, provided that, in the case of land leased to the state or a subdivision thereof, any consideration received by the owner for the lease shall not be deemed a charge within the meaning of this Code section.”).

5.   Our precedent has frequently distinguished between invitations that are “recreational” or “commercial” in nature (or, in the same vein, whether the public was invited to directly further the “business interests” of the owner) when discussing the standard for determining whether a landowner is immune from liability under the Act. See, e.g., Stofer, 306 Ga. at 195–97; Anderson, 273 Ga. at 116. The Court of Appeals has done the same. See, e.g., Schock v. Holy Trinity Cath. Church, 361 Ga. App. 195, 200 (2021); Word of Faith Ministries, Inc. v. Hurt, 323 Ga. App. 296, 298 (2013); Matheson v. Ga. Dep't of Transp., 280 Ga. App. 192, 194–96 (2006). But McLamb points out that the distinction between “recreational” and “commercial” invitations may be less useful when the property is owned by the government, because the government has a range of reasons beyond just recreational or commercial purposes for which it might invite the public onto its land. McLamb and the amici in support of appellant propose an alternative distinction between recreational and non-recreational property or activities (that is, all other property or activities that are not properly classified as “recreational” under the Act), irrespective of who owns the property. Because our holding today is narrowly focused on the improper weight afforded to McLamb's actual use of the land, we need not and do not decide whether the recreational-versus-commercial distinction should be adjusted for government property.

6.   In contrast, McLamb argues that the nature of a particular person's activity on the property “is rarely, if ever, relevant” to determining whether a property owner is entitled to immunity under the Act. McLamb and the City also raise other arguments on appeal that we do not address, because we address only those issues necessary to our holding that the Court of Appeals assigned improper weight to McLamb's actual use of the land.

7.   The City also appears to propose an alternative test for determining whether a property owner is immune from liability under the Act. According to the City:The application of the [Act] breaks down to three considerations: (1) whether the owner opened the property for entry or use by others for recreational purposes, (2) whether the property owner charged the user to use the premises, and (3) whether the user engaged in a recreational purpose at the time of her injuries. If the answer to the first and third questions is in the affirmative and the answer to the second question is in the negative, the [Act] applies, and the property owner owed no duty of care to keep the premises safe for entry or use by others.We adhere to the test for determining whether a property owner is immune from liability under the Act as clarified in Stofer. Accordingly, we reject the City's alternative test.

8.   In its amicus brief in support of appellant, the Georgia Trial Lawyers Association (“GTLA”) argues that the Act “does not eliminate a municipality's ministerial duty. Instead, the [Act] eliminates only the distinct common law duty imposed upon landowners toward various classes of entrants upon their land.” So, GTLA argues, the Act should only limit “the duty arising from traditional premises liability, not the ministerial duty.” See generally OCGA §§ 32-4-91(a); 32-4-93(a); 36-33-1(b). See also City of Milton v. Chang, 323 Ga. 810, 813 (2026) (explaining that “we have treated ․ the duty to keep city streets and sidewalks safe for travel” as a ministerial duty and that municipal immunity has been statutorily waived for claims that a municipality negligently performed that duty). Our holding today is confined to the Court of Appeals's treatment of McLamb's actual use of the property as dispositive as to the nature of the activity. So we need not and do not decide whether GTLA is correct. We thank the organizations that filed amicus briefs to assist us in our review of this case. In addition to GTLA, that includes the Savannah Trial Lawyers Association.

9.   Additionally, nothing in our opinion today prevents the Court of Appeals from reconsidering its analysis as to the nature of the property on remand. In concluding that the nature of the property was recreational, the Court of Appeals focused on only three facts: “the sidewalk where McLamb fell was owned by the City[,]” the sidewalk is “located in Savannah's National Historic Landmark District[,]” and “there is no fee charged to engage in sightseeing.” McLamb, 376 Ga. App. at 485–86. The Court of Appeals further noted that “although the City may gain indirect financial benefits from nearby businesses, the fact that there might have been an indirect commercial benefit is not sufficient to create a factual question as to the nature of the property.” Id. at 485 (cleaned up). Given our conclusion that the Court of Appeals erred in placing outsized importance on what McLamb was actually doing on the property when she was injured, nothing in our opinion today should be construed to prevent the Court of Appeals from revisiting its analysis as to the nature of the property, as well.

Peterson, Chief Justice.

Judgment vacated and case remanded. All the Justices concur.