Recreational Property Act Immunity Depends on the Landowner’s General Invitation, Not the Plaintiff’s Moment-of-Injury Activity

I. Introduction

McLamb v. Mayor and Aldermen of the City of Savannah (Supreme Court of Georgia, Aug. 11, 2026) addresses how Georgia courts should apply the Recreational Property Act (“RPA”), OCGA § 51-3-20 et seq., which can limit a landowner’s liability when land is opened to the public for “recreational purposes.”

The case arises from a tourist’s trip-and-fall on a sidewalk in Savannah’s National Historic Landmark District. The City sought summary judgment, arguing it was immune under the RPA. The trial court denied the motion, and the Court of Appeals reversed—reasoning that the plaintiff was sightseeing (an enumerated recreational purpose) and that the sidewalk was recreational property. The Supreme Court granted certiorari to clarify the extent to which a user’s activity informs the RPA duty analysis.

The central issue was not whether sightseeing can be recreational—it can—but whose “activity” matters and how much: does immunity depend on what the plaintiff was doing at the precise moment of injury, or on what the public was generally invited to do?

II. Summary of the Opinion

Chief Justice Peterson, writing for a unanimous Court, reaffirmed the immunity framework articulated in Mercer University v. Stofer, 306 Ga. 191 (2019) and declined the City’s invitation to limit or overrule it. The Court held that the Court of Appeals misapplied Stofer by treating McLamb’s own sightseeing as dispositive of the “nature-of-the-activity” prong.

The Supreme Court therefore vacated the Court of Appeals’ judgment and remanded for proper application of the Stofer test as clarified: the “nature-of-the-activity” inquiry is primarily about what the public was generally invited to do on the property, not what the plaintiff happened to be doing at the precise moment of injury.

The Court did not decide constitutional challenges to the RPA, did not resolve whether the sidewalk was recreational property under the correct framework, and did not decide whether a municipality’s separate “ministerial duty” regarding sidewalks limits the RPA’s effect.

III. Analysis

A. The Statutory Framework (What the RPA Does)

The RPA’s codified purpose is to encourage landowners to open land for public recreation by limiting liability. See OCGA § 51-3-20. Its core immunity provisions provide that, with exceptions, an owner who invites or permits the public to use property without charge for recreational purposes owes no duty to keep premises safe or warn of dangers:

  • OCGA § 51-3-22: no duty of care to keep premises safe or warn for persons entering for recreational purposes.
  • OCGA § 51-3-23: allowing recreational use without charge does not create invitee/licensee status or assumed responsibility.
  • OCGA § 51-3-21(4): “recreational purpose” is defined by a non-exhaustive list, including “viewing or enjoying historical, archeological, scenic, or scientific sites.”
  • OCGA § 51-3-25(1): immunity does not apply for “willful or malicious failure” to guard or warn.

In this case, “charge” was not the disputed pivot; the contested question was whether the City’s sidewalk use fits the statute’s “invites or permits … to use the property for recreational purposes” requirement, properly understood under Georgia precedent.

B. Precedents Cited (And How They Shaped the Court’s Clarification)

1. Mercer University v. Stofer, 306 Ga. 191 (2019) (The Governing Test, Reaffirmed)

Stofer is the decision the Court treats as controlling. It distilled prior RPA case law into a test rooted in statutory text: courts must determine the “true scope and nature” of the landowner’s invitation, informed by:

  1. Nature of the activity: whether the activity the public was invited to engage in qualifies as recreational under the Act.
  2. Nature of the property: whether, at the relevant time, the property was primarily used for recreational purposes or commercial activity.

McLamb does not rewrite Stofer; it corrects a common misreading of it. The Court emphasizes that Stofer focuses on the invitation (what the landowner invited the public to do), not a plaintiff-centric snapshot (what the plaintiff was doing at injury).

2. Anderson v. Atlanta Comm. for the Olympic Games, 273 Ga. 113 (2000) (User Activity Can Be Considered, But Is Not Controlling)

The Court relied on Anderson to underscore that, while a user’s activity may be considered, it is not determinative. In Anderson, this Court explained the “balancing test” drawn from Wisconsin law “does not preclude consideration of the user’s subjective assessment of the activity,” but the user’s assessment is “not the controlling factor.”

McLamb uses Anderson as a doctrinal anchor for the proposition that the plaintiff’s momentary conduct is at most one piece of the “totality of the circumstances” when determining the invitation’s scope.

3. Silingo v. Village of Mukwonago, 156 Wis.2d 536 (1990) (Source of the Non-Dispositive User-Assessment Principle)

The Court referenced Silingo via Anderson to reinforce that recreational-use immunity analysis can consider user perspective without letting it control the result. McLamb adopts that same methodological caution: consider the user’s activity, but do not let it substitute for the “invitation” inquiry.

4. The “Stone Mountain Park” Line: Stone Mountain Mem. Ass'n v. Herrington, 225 Ga. 746 (1969); Quick v. Stone Mountain Mem. Ass'n, 204 Ga. App. 598 (1992); Hogue v. Stone Mountain Mem. Ass'n, 183 Ga. App. 378 (1987)

Herrington appears for two distinct reasons:

  • As a scope precedent: it held the RPA applies to government owners, rejecting the argument that the Act was intended only for private land. McLamb notes some Justices are “skeptical” that the text is best read that way, but the Court applies Herrington under stare decisis because the plaintiff did not seek its overruling.
  • As part of the user-activity discussion (via Anderson’s citations to Quick and Hogue), reinforcing that the claimant’s perception or use does not control the immunity determination.

5. Atlanta Committee for the Olympic Games, Inc. v. Hawthorne, 278 Ga. 116 (2004) (Invitation Character Is Often a Jury Question)

The Court cites Hawthorne (through Stofer’s explanation) to illustrate why disputes about the “nature and scope of the invitation” may require jury resolution—e.g., whether the public was invited “to shop” or “to engage in some recreational activity,” and if both, which predominated. McLamb’s clarification fits this same frame: the relevant inquiry is the general invitation, not the plaintiff’s individualized snapshot.

6. Sidewalk and “Mixed Use” Guidance: City of Tybee Island v. Godinho, 270 Ga. 567 (1999); Carroll v. City of Carrollton, 280 Ga. App. 172 (2006)

McLamb cites Godinho to show prior cases have treated the plaintiff’s own recreational use as “not a determinative factor.” It cites Carroll for the proposition that RPA application “does not turn on how the individual plaintiff used or intended to use” the property—while acknowledging that individual use can be “relevant” in “mixed use” cases. McLamb places its clarification on this spectrum: individual conduct may inform but cannot dictate the invitation analysis.

7. Summary Judgment Standard: Milliken & Co. v. Ga. Power Co., 306 Ga. 6 (2019)

The Court begins its error analysis with Milliken to frame the appellate lens: de novo review of legal issues, and evidence viewed in the light most favorable to the nonmoving party. This matters because misweighting one fact (the plaintiff’s activity) can wrongly collapse a jury-suitable “scope of invitation” dispute into a purportedly undisputed record.

8. Court of Appeals “Commercial vs Recreational” Cases: Schock v. Holy Trinity Cath. Church, 361 Ga. App. 195 (2021); Word of Faith Ministries, Inc. v. Hurt, 323 Ga. App. 296 (2013); Matheson v. Ga. Dep't of Transp., 280 Ga. App. 192 (2006)

These cases are cited in a footnote to illustrate how Georgia courts often describe the RPA inquiry as distinguishing “recreational” from “commercial” invitations/uses. McLamb does not resolve whether that framing needs adjustment for government property; it flags the issue but decides the case on narrower grounds (misweighting the plaintiff’s activity).

9. Municipal “Ministerial Duty” and Potential Statutory Waiver: City of Milton v. Chang, 323 Ga. 810 (2026)

The Court acknowledges (without deciding) an argument advanced by amici: even if the RPA limits premises-liability duties, it may not erase a city’s separate ministerial duty to keep streets and sidewalks safe, for which immunity may be statutorily waived. The Court cites City of Milton v. Chang for the proposition that Georgia has treated the duty to keep city streets and sidewalks safe for travel as ministerial, and that waiver statutes may apply. This preserved question could become pivotal on remand or in future cases involving municipal sidewalks.

C. Legal Reasoning (The Court’s Core Clarification)

1. The Court Rejects a Plaintiff-Centric “At-the-Time-of-Injury” Threshold Test

The City urged a simplified approach: immunity applies if (1) the owner opened property for recreational purposes, (2) no charge was assessed, and (3) the user engaged in a recreational purpose “at the time of her injuries.” The Supreme Court expressly rejected this alternative test as inconsistent with Stofer and the statutory focus on the landowner’s act of “inviting or permitting” public use for recreational purposes.

2. “Nature of the Activity” Primarily Means the Public’s General Invitation

McLamb’s key doctrinal move is to reaffirm that Stofer’s first prong is “focused primarily” on what the public was generally invited to do. The plaintiff’s actual activity “is only one element” in the totality of circumstances and “is not dispositive.”

Applied to the Court of Appeals’ opinion, the Supreme Court identified the error: the Court of Appeals relied heavily—indeed decisively—on deposition testimony that McLamb chose to walk to sightsee and was looking at a tree when she fell, concluding that “the nature of the activity was, objectively, recreational.” That analysis improperly substituted the plaintiff’s individualized conduct for the required inquiry into the scope and nature of the City’s public invitation regarding the sidewalk.

3. Remand Is Required Because the Proper Stofer Analysis Was Not Performed

The Supreme Court did not decide whether the City ultimately is immune. Instead, it required the Court of Appeals to redo the analysis under the clarified framework and, if necessary, address other arguments preserved below. The Court also noted that, on remand, the Court of Appeals is not constrained from revisiting its “nature of the property” analysis, which had relied on only a few facts (City ownership, historic district location, and no fee for sightseeing).

D. Impact (What This Changes Going Forward)

  • Re-centers RPA immunity on the landowner’s invitation. Litigants and courts should expect closer scrutiny of the objective “scope and nature” of the public invitation, rather than relying on the plaintiff’s deposition description of their personal purpose.
  • Limits “enumerated activity” shortcuts. Even if the plaintiff’s conduct fits an enumerated recreational activity (e.g., “viewing or enjoying historical…sites”), that fact alone will not resolve the first prong.
  • Makes mixed-use disputes more fact-sensitive. Where sidewalks, parks, campuses, plazas, or downtown districts serve multiple public functions, McLamb encourages an evidence-rich inquiry into what the public generally is invited to do there, increasing the likelihood that some cases will involve jury questions (as Stofer anticipated).
  • Signals future friction in municipal cases. The Court highlighted but left open two potentially transformative issues in the municipal context: (i) whether “recreational vs commercial” framing fits government property well, and (ii) whether the RPA can limit duties that are independently characterized as municipal “ministerial” duties with statutory waiver implications.

IV. Complex Concepts Simplified

  • “Immunity” under the RPA: a statutory limitation on landowner liability when property is opened for free recreational use. It is not absolute; exceptions include “willful or malicious” failure to guard or warn.
  • “True scope and nature of the invitation” (Stofer): a practical question: what did the owner objectively invite the public to do here—recreate, shop, commute, attend an event, conduct business, or some combination—and which use predominated?
  • “Nature of the activity” vs. plaintiff’s activity: the first prong primarily asks what the public generally was invited to do, not what the plaintiff happened to be doing at the moment of injury. Plaintiff conduct may be evidence, but it is not the test.
  • “Nature of the property”: the second prong asks what the property is like in context and at the relevant time—used mainly for recreation or mainly for other uses (often described as commercial activity in prior cases).
  • Summary judgment: a pretrial ruling appropriate only when there is no genuine dispute of material fact; appellate courts review legal questions de novo and view evidence favorably to the nonmoving party.
  • Ministerial duty (municipal context): a duty the law treats as mandatory and non-discretionary (e.g., keeping streets/sidewalks safe for travel); the Supreme Court noted—but did not decide—whether the RPA affects such duties.

V. Conclusion

McLamb establishes a clear operational rule for Georgia Recreational Property Act litigation: Stofer’s “nature-of-the-activity” prong primarily examines the landowner’s general invitation to the public, and a plaintiff’s moment-of-injury conduct— even if recreational—cannot be treated as dispositive.

By vacating and remanding, the Supreme Court reinforced a text-anchored, invitation-centered approach that is likely to reshape how lower courts evaluate RPA immunity in mixed-use public spaces—especially municipal environments like sidewalks in tourist districts—while leaving open major questions about municipal ministerial duties and the best conceptual framing for government-owned property.