Jabari and Ulysia Gayle sued the Frank Callen Boys and Girls Club, Inc. (the “Club”) and the Housing Authority of Savannah to recover for personal injuries Jabari sustained during a basketball game at the Club. The trial court granted summary judgment in fаvor of the Club,
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an aрpeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.
(Citations omitted.) Carroll v. City of Carrollton,
So viewed, the record evidence reflects that the Club is a nonprofit organization that was founded to provide a safe environment for young people in athletic, learning and recreational activities. The Hоusing Authority of Savannah owns the property where the Club is located; however, the Club is the sole occupant of the property and is in control of the premises.
Recreational activitiеs at the Club include basketball, as well as organized league and nonleague sport activities. The Club has a voluntary $2 nominal annual membership fee for minor children who submit applications to join the facility. The purpose of the membership applications and annual fee is to provide a record of children at the facility, defray some of the operating costs for recreational activities and foster a stronger connection between children and the Club. Many members of the Club never pay the fee, and no child is ever turned away from the facility or membership for fаiling to pay the fee. Additionally, members of the public can enter the facility as spectators to recreational sport activities occurring at the Club.
In 2006, Jabari joined the Club for free and stаrted going there every afternoon after school. In February 2007, then 17-year-old Jabari was playing a pick-up game of basketball in the Club’s gymnasium. Jabari was running down the court on a “fast break.” Jabari cоuld not slow down. He came into contact with the wire mesh and glass window of an office door which was located behind one of the basketball goals. Consequently, his left hand went through the window, cutting his wrist and tendоns. Jabari was treated at the emergency room that night and underwent surgery the next day.
The Gayles subsequently filed this action against the Club and the Housing Authority of Savannah, alleging that the defendants
In their sole enumeration of error, the Gayles contend that the trial court erred in granting summary judgment to the Club based on their claims that the Club was negligent in failing to keep its prеmises safe.
The RPA pertinently provides:
... [A] n 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 § 51-3-23. “The purpose of the RPA is to encourage property owners to make their property available to the public for recreational purposes by limiting the owners’ liability.” (Punctuation and footnote omitted.) Cooley v. City of Carrollton,
The RPA provides the following definitions for determining applicability:
(1) “Charge” means the admission price оr fee asked in return for invitation or permission to enter or go upon the land.
(2) “Land” means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty.
(3) “Owner” means the possessor of a fee interest, a tenant, a lessee, an occupant, or a person in control of the premises.
(4) “Recreational purpose” includes, but is not limited to, any of the following or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing or enjoying historical, archeological, scenic, or scientific sites.
(Emphasis supplied.) OCGA § 51-3-21. Moreover, the issue of whether the RPA applies is a question of law for the trial court. See Atlanta Committee for the Olympic Games v. Hawthorne,
Here, the record evidence supports thе trial court’s findings that the Club was the sole occupant in control of the property, and the premises
Although the RPA does not limit liability “[f]or willful or malicious failure to guard or warn аgainst a dangerous condition, use, structure, or activity[,]” OCGA § 51-3-25 (1), the record evidence did not establish that the defendants wilfully failed to guard or warn against a dangerous condition. We have previously held that а wilful failure
involves a conscious, knowing, voluntary, intentional failure, rather than a mere inadvertent, accidental, involuntary, inattentive, inert, or passive omission and that malice requires either an аctual intent to cause the particular harm produced or the wanton and wilful doing of the act with an awareness of the plain and strong likelihood that harm may result.
(Punctuation and footnote omitted.) Collins v. City of Summerville,
(1) the [defendants] had actual knowledge that [the] property was being used for recreational purposes; (2) the [defendants] had actuаl knowledge that a condition existed involving unreasonable risk of death or serious bodily harm; (3) the condition was not apparent to those using the property; and (4) the [defendants] chose not to warn users, in disregard of the possible consequences. Constructive knowledge is not sufficient, and no duty to inspect is imposed on the property owner.
(Footnotes omitted.) Collins, supra,
Here, no evidence showed that the Club had actual notice that the glass window constituted a dangerous condition, or that the condition of the glass window was not apparent to those using the property. Notably, the evidence showed that wire mesh glass is commonly used in recreational facilities, and no evidence showed that anyone had ever been injured by such glass at the Club or any other facility. Additionally, the glass window was an open аnd obvious condition. Accordingly, the Gayles cannot satisfy their burden of demonstrating a wilful failure to warn against a dangerous condition on the premises. See Collins, supra,
For the foregoing reasons, we conclude that the uncontroverted evidence shows that the RPA precludes the Gayles’ claims of negligence against the Club. Therefore, the trial court did not err in granting summary judgment to the Club.
Judgment affirmed.
Notes
The Housing Authority moved separately to dismiss the Gayles’ complaint or in the alternative for summary judgment based on its contention that it is entitled to sovereign immunity. The instant appeal concerns only the trial court’s grant of summary judgment to the Club.
The Gayles also alleged in their complaint that the Club was negligent in failing to supervise Jabari during the basketball game and in hiring, training and supervising its employees. The trial court ruled that the RPA precluded all of the Gayles’ claims. On appeal, however, the Gayles limited their arguments to their premises liability claim only. Accordingly, they have waived appellate review of the trial court’s grant оf summary judgment with regard to these additional claims.
Contrary to the Gayles’ contention, the RPAis not limited to outdoor activities, since the statute expressly includes buildings and structures when attached to realty. Sеe OCGA § 51-3-21 (2).
The Gayles’ reliance on Hart v. Appling County School Bd.,
See also Zellers v. Theater of the Stars,