               Case: 15-15412      Date Filed: 10/27/2016     Page: 1 of 21


                                                                              [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 15-15412
                             ________________________

                        D.C. Docket No. 4:12-cv-00220-HLM



LEE ROY SWAFFORD,

                                                                     Plaintiff - Appellant,

versus

UNITED STATES OF AMERICA,

                                                                   Defendant - Appellee.

                             ________________________

                     Appeal from the United States District Court
                        for the Northern District of Georgia
                           ________________________

                                   (October 27, 2016)

Before ROSENBAUM and JILL PRYOR, Circuit Judges, and UNGARO, * District
Judge.

ROSENBAUM, Circuit Judge:


         *
          Honorable Ursula Ungaro, United States District Judge for the Southern District of
Florida, sitting by designation.
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       This appeal requires us to consider the scope of the United States’s liability

under federal and state law for injuries suffered by a plaintiff who fell down a set

of stairs within a federally owned recreation area. The district court granted

summary judgment in favor of the Government, finding that the United States was

insulated from liability under both the discretionary-function exception to the

Federal Tort Claims Act and the limited-liability provisions of Georgia’s

Recreational Property Act. While we reverse the district court’s application of the

discretionary-function exception, we ultimately affirm the judgment because

Georgia law precludes recovery against the Government under the circumstances

of this case.

                                          I.

                                         A.

       The relevant undisputed facts are as follows. On September 18, 2010,

Plaintiff-Appellant Lee Roy Swafford and his wife traveled to the R. Shaefer

Heard Campground (“Campground”), near West Point, Georgia.                The United

States Army Corps of Engineers (“the Corps”) owns the campground, which is

situated on the shores of West Point Lake and is encompassed within the scope of

the Corps’s broader West Point Lake Project in Georgia and Alabama.




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      A few days into his stay, Swafford woke before dawn and, after it was light

out, took his dog for a walk. Swafford walked from Campsite 23, where he was

staying, towards Campsite 26 because he wanted to see the view of the lake from

that campsite. At Campsite 26, with dog leash and cup of coffee in hand, Swafford

descended the site’s wooden stairway. In the process, Swafford fell and injured

himself.

      Before arriving at the Campground, Swafford reserved his campsite online,

paying $132 in fees for six nights of camping ($22 per night). By statute, the

Corps is prohibited from charging “entrance or admission fees” to its recreational

areas. 16 U.S.C. § 460d-3(a). Instead, the fee charged in Swafford’s case was for

use of the Campground’s overnight camping facilities, which included a

recreational-vehicle parking pad with electrical, water, and sewage services. The

Corps sets the campsite fee based on the electrical amperage available at each site

and charges the fee on a per-vehicle, rather than a per-person, basis.

      Persons who are not staying overnight may visit campers at the

Campground, but they must pay a daily “user fee” to do so. No general, day-use

access to the Campground is available to the public; only campers and campers’

visitors may enter. So it is undisputed that no one can access the Campground

without paying some type of fee. But beyond the campsite fees and visitor fees,

the Corps does not levy any other fees for recreational activities at the


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Campground. The Corps uses the fees it collects to defray some of the costs of

services it provides at the Campground.

      Since December 1, 2005, the Corps has contracted with the Anderson

Construction Company (“Anderson”) to provide “all ‘maintenance, repair, and

operations of facilities, vehicles, and equipment” at West Point Lake, including the

Campground.       The contract provides for Anderson’s “complete inspection,

maintenance, and repair” of all campsites and stairways “necessary to keep them in

safe working condition.” Under the contract, “[w]ork . . . shall be performed under

the general direction of the Authorized Representative of the Contracting Officer

(ARCO),” and all work must comply with “applicable laws, regulations, codes, or

directives.”

                                          B.

      In January 2012, Swafford filed a claim with the General Services

Administration and received notification in June 2012 that investigation of his

claim was complete and that he would receive a decision shortly. When Swafford

did not receive a decision letter, he filed a complaint in federal court on September

19, 2012. Swafford amended his complaint on November 4, 2013.

      Relying on the Federal Tort Claims Act (“FTCA”), Swafford’s amended

pleading alleges three counts against the United States. The first asserts a claim of

premises liability under O.C.G.A. § 51-3-1, alleging that the United States, as


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owner of the property where Swafford was injured, “negligently and carelessly

caused, allowed, and/or permitted a hazardous condition to exist and remain as to

the steps at Campsite 26.” The second count, relying on O.C.G.A. § 51-2-5(5),

asserts that “any negligence on the part of Anderson in also failing to inspect,

maintain, and repair the steps at Campsite 26” is imputable to the United States

because the Corps exercised control over Anderson in a master-servant

relationship.    The final count, citing O.C.G.A. § 51-2-5(6), contends that the

United States is liable because it “ratified Anderson’s negligent failure to inspect

and/or repair the steps at Campsite 26 on the Defendant’s premises by not

requiring the repair of the defective and hazardous steps.”

      The district court ultimately granted summary judgment in the

Government’s favor. With respect to Count I, the district court concluded that

Georgia’s Recreational Property Act (“RPA”), O.C.G.A. §§ 51-3-20 to -26, limited

the liability of the United States as landowner because the Government had made

the Campground available for recreational use free of charge.         In the district

court’s view, the campsite and visitor fees charged by the Corps were not charges

for admission to the Campground.

      On Count III, the district court held that the decisions of the Corps or

Anderson either not to inspect or not to repair the stairs at Campsite 26 fell within

the discretionary-function exception to the FTCA. As a result, the district court


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determined, the United States could not be held liable for those decisions. So the

district court granted the Government summary judgment on that claim.

      With respect to Count II, though, the district court initially denied summary

judgment. While recognizing that the FTCA precludes liability for the actions of

the Government’s independent contractors, the district court concluded that

material disputes of fact existed over the extent of the Corps’s control of

Anderson’s activities and whether Anderson was properly characterized as an

independent contractor. The court set the case for trial on Count II. As trial

approached, however, the district court reconsidered its position, concluding that

Georgia’s RPA also precluded finding the United States liable under the

respondeat superior theory of Count II. As a result, the district court granted

summary judgment to the Government on Swafford’s last pending claim. This

appeal followed.

                                        II.

      We review a district court’s grant of summary judgment de novo. Brinson v.

Raytheon Co., 571 F.3d 1348, 1350 (11th Cir. 2009). Summary judgment is

warranted if the record demonstrates “no genuine dispute as to any material fact

and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); see Brinson, 571 F.3d at 1350-51.




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                                         III.

      Although the district court considered the discretionary-function exception

last, and only with respect to Count III of Swafford’s complaint, we recognize that

whether the FTCA applies in Swafford’s case is a question that implicates our

subject-matter jurisdiction. See JBP Acquisitions, LP v. United States ex rel.

FDIC, 224 F.3d 1260, 1263-64 (11th Cir. 2000). If the exception were to apply to

Swafford’s claims, we would lack jurisdiction over this action. See id. But we

conclude that Swafford’s claims lie outside the discretionary-function exception,

so we reverse that part of the district court’s order holding otherwise.

                                          A.

      The FTCA grants federal district courts exclusive jurisdiction over claims

for damages against the United States arising from personal injury “caused by the

negligent or wrongful act or omission of any employee of the Government while

acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1).

Specifically, “[t]he United States shall be liable, respecting the provisions of this

title relating to tort claims, in the same manner and to the same extent as a private

individual under like circumstances.” 28 U.S.C. § 2674.

      But the FTCA exempts from liability torts resulting from “discretionary

functions”:

              The provisions of this chapter and section 1346(b) of this
              title shall not apply to—
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             (a) Any claim based upon an act or omission of an
             employee of the Government, exercising due care, in the
             execution of a statute or regulation, whether or not such
             statute or regulation be valid, or based upon the exercise
             or performance or the failure to exercise or perform a
             discretionary function or duty on the part of a federal
             agency or an employee of the Government, whether or
             not the discretion involved be abused.

28 U.S.C. § 2680(a). This exception “marks the boundary between Congress’

willingness to impose tort liability upon the United States and its desire to protect

certain governmental activities from exposure to suit by private individuals.”

United States v. Varig Airlines, 467 U.S. 797, 808, 104 S. Ct. 2755, 2762 (1984).

This exception must be strictly construed in favor of the Government, and if it

applies, federal courts lack subject-matter jurisdiction over the claims. See U.S.

Aviation Underwriters, Inc. v. United States, 562 F.3d 1297, 1299 (11th Cir. 2009);

JBP Acquisitions, 224 F.3d at 1263.

      In evaluating whether the discretionary-function exception applies, we first

“must determine exactly what conduct is at issue.” Autery v. United States, 992

F.2d 1523, 1527 (11th Cir. 1993). Courts then apply the two-step test developed

by the Supreme Court in Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531,

108 S. Ct. 1954 (1988), and United States v. Gaubert, 499 U.S. 315, 111 S. Ct.

1267 (1991). See U.S. Aviation Underwriters, 562 F.3d at 1299.




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      First, we consider whether the challenged conduct “is a matter of choice for

the acting employee.” Berkovitz, 486 U.S. at 536, 108 S. Ct. at 1958. “[C]onduct

cannot be discretionary unless it involves an element of judgment or choice.” Id.

Challenged conduct is not discretionary “when a federal statute, regulation, or

policy specifically prescribes a course of action for an employee to follow”

because “the employee has no rightful option but to adhere to the directive.” Id. at

536, 108 S. Ct. at 1958-59. Here, Swafford has submitted no evidence that a

federal statute, regulation, or policy specifically requires the inspection,

maintenance, and repair of the stairs at Campsite 26. As a result, on this record,

we must conclude that deciding whether to engage in these tasks involves an

element of judgment or choice.

      If the conduct involves an element of judgment and is discretionary, the

court “must determine whether that judgment is of the kind that the discretionary

function exception was designed to shield.” Id. at 536, 108 S. Ct. at 1959. As the

Supreme Court has explained, the exception is designed to prevent “judicial second

guessing” of decisions “grounded in social, economic, and political policy.” Id. at

536-37, 108 S. Ct. at 1959 (quoting Varig Airlines, 467 U.S. at 814, 104 S. Ct. at

2764-65).    Accordingly, the discretionary-function exception “protects only

governmental actions and decisions based on considerations of public policy.” Id.

at 537, 108 S. Ct. at 1959; see also Gaubert, 499 U.S. at 323, 111 S. Ct. at 1274.


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      In Gaubert, the Supreme Court further elaborated on the discretionary-

function exception by linking the two parts of the test with a presumption: “When

established governmental policy, as expressed or implied by statute, regulation, or

agency guidelines, allows a Government agent to exercise discretion, it must be

presumed that the agent’s acts are grounded in policy when exercising that

discretion.” 499 U.S. at 324, 111 S. Ct. at 1274. But importantly, the Court

observed that some otherwise-discretionary acts are “obviously” outside the scope

of the discretionary-function exception, citing the example of negligently driving

an automobile on official business. Id. at 325 n.7, 111 S. Ct. at 1275 n.7 For

example, the Court explained, “[a]lthough driving requires the constant exercise of

discretion, the official’s decisions in exercising that discretion can hardly be said to

be grounded in regulatory policy.” So “[t]he discretionary function exception

applies only to conduct that involves the permissible exercise of policy judgment.”

See Berkovitz, 486 U.S. at 539, 108 S. Ct. at 1960 (emphasis added).

                                          B.

      In urging us to find the discretionary-function exception inapplicable,

Swafford points us to the Supreme Court’s decision in Indian Towing Co. v. United

States, 350 U.S. 61, 76 S. Ct. 122 (1955). In Indian Towing, a barge company sued

the United States for damages when its vessel ran aground, alleging negligence by

the Coast Guard in failing to maintain a lighthouse. Id. at 62, 76 S. Ct. at 123. In


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that case, the government conceded that the facts of the case would not fit within

discretionary-function exception but instead argued that the FTCA did not apply to

“uniquely governmental functions.” See id. at 64-69, 76 S. Ct. at 124-27; see also

Gaubert, 499 U.S. at 326, 111 S. Ct. at 1275.

      The Supreme Court disagreed. In holding that the United States could be

liable, the Supreme Court relied on “hornbook tort law that one who undertakes to

warn the public of danger and thereby induces reliance must perform his ‘good

Samaritan’ task in a careful manner.” Indian Towing, 350 U.S. at 64-65, 76 S. Ct.

at 124. So even though the Coast Guard was under no obligation to construct a

lighthouse, once the Coast Guard “exercised its discretion to operate [the

lighthouse] and engendered reliance on the guidance afforded by the light, it was

obligated to use due care to make certain that the light was kept in good working

order,” including monitoring its function and repairing it or at least warning if it

were not functioning. Id. at 69, 76 S. Ct. at 126-27. In the same vein, we conclude

that the Corps’s decision to build and “operate” a staircase on the Campground

gives rise to a similar obligation to inspect and maintain that staircase in a safe

condition.

      In Berkovitz and Gaubert, the Supreme Court reconciled its discretionary-

function holdings with the Indian Towing decision. Specifically, in Berkovitz, the

Supreme Court observed that Indian Towing “illuminates the appropriate scope of


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the discretionary function exception” by explaining that while “the initial decision

to undertake and maintain lighthouse service was a discretionary judgment,”

failure to maintain the lighthouse in good, working condition “did not involve any

permissible exercise of policy judgment.” Berkovitz, 486 U.S. at 538 n.3, 108 S.

Ct. at 1959 n.3.

      Similarly, in Gaubert, the Supreme Court clarified that “[t]he United States

was held liable [in Indian Towing], not because the negligence occurred at the

operational level but because making sure the light was operational ‘did not

involve any permissible exercise of policy judgment.’” Gaubert, 499 U.S. at 326,

111 S. Ct. at 1275 (quoting Berkovitz, 486 U.S. at 538 n.3, 108 S. Ct. at 1959 n.3.)

Indeed, Gaubert reiterates that the Government did not seek to claim the benefit of

the discretionary-function exception in Indian Towing—a decision that in all

probability reflects the Government’s recognition that negligent maintenance of the

lighthouse is not the type of permissible policy decision the exception is designed

to protect. See id.; see also Indian Towing, 350 U.S. at 64, 76 S. Ct. at 124.

      We recognize that decisions of this Court have spoken negatively of the

Indian Towing decision post-Gaubert. See, e.g., Cranford v. United States, 466

F.3d 955, 959 (11th Cir. 2006); Monzon v. United States, 253 F.3d 567, 572-73

(11th Cir. 2001); Ochran v. United States, 117 F.3d 495, 505-06 (11th Cir. 1997).

But the criticism of Indian Towing in those decisions centers on plaintiffs’ attempts


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to use Indian Towing to support a dichotomy between “discretionary functions”

and “operational functions” under the FTCA—a distinction the Supreme Court

expressly disavowed in Gaubert. See Gaubert, 499 U.S. at 325-26, 111 S. Ct. at

1275-76. Swafford’s argument here, though, is not that maintaining the stairs is an

“operational” function instead of a “discretionary” one. Rather, Swafford argues

that, like the lighthouse, once the Corps exercised its discretion to build and

maintain the stairs, failure to maintain them in a safe condition is simply not a

permissible exercise of policy judgment. We agree.

                                        C.

      The Government also attempts to distinguish Indian Towing by framing the

relevant conduct as the Corps’s “acceptance or non-acceptance of Anderson’s

work,” a type of conduct, it argues, that is regularly protected by the exception.

But the Government’s argument misses the mark. The Government is correct that,

generally, decisions about accepting a contractor’s work or decisions about how to

supervise a contractor can be discretionary decisions, particularly when a contract

does not specify how the Government must supervise the contractor. See Andrews

v. United States, 121 F.3d 1430, 1440-41 (11th Cir. 1997). But here, unlike in

Andrews, the Corps’s contract with Anderson specifically required Anderson to

inspect, maintain, and repair the Campground’s stairways as “necessary to keep

them in safe working condition.” Whatever range of choice the Corps may have


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had in supervising Anderson, “choosing” to “accept” a dangerously unsafe

stairway is simply not a permissible exercise of discretion any more than is

choosing to not maintain a lighthouse, Indian Towing, 350 U.S. at 69, 76 S. Ct. at

126-27, or choosing to drive carelessly on official business, Gaubert, 499 U.S. at

325 n.7, 111 S. Ct. at 1275 n.7.

       In sum, we conclude that the discretionary-function exception to the FTCA

does not bar Swafford’s claims. Of course, a factual dispute remains over whether

the stairs at Campsite 26 were dangerously unsafe. And, as the district court

concluded, another factual dispute exists over whether Anderson is an independent

contractor.1 Ultimately, though, these disputes will remain unresolved because we

conclude that Georgia’s RPA precludes recovery for the negligence Swafford

alleges led to the injuries he suffered at the Campground.

                                              IV.

       Swafford contends on appeal that the district court further erred in finding

the Corps insulated from liability under Georgia’s Recreational Property Act

(“RPA”), O.C.G.A. §§ 51-3-20 to -26. Specifically, Swafford asserts that because

no person can access the Campground without paying some type of fee, those fees

are essentially “admission charges” for entering the Campground. If true, those


       1
        If that’s the case, the United States may be able to avoid liability for any negligence on
Anderson’s part. See 28 U.S.C. § 2671; Tisdale v. United States, 62 F.3d 1367, 1371 (11th Cir.
1995).
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admission charges would defeat the statute’s limitation on liability. Our review of

Georgia law, however, leads us to a different conclusion under the circumstances

presented in this case. 2

                                               A.

       Georgia’s RPA limits the liability of landowners in order to encourage them

to open up their properties for recreational use free of charge. Specifically, the

statute provides,

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

O.C.G.A. § 51-3-22. As described by the legislature, the purpose of the RPA “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.” O.C.G.A. § 51-3-20.

       Two statutory exceptions to this limitation on liability exist. One applies if

the landowner willfully or maliciously fails “to guard or warn against a dangerous


       2
          Although the district court applied the RPA to just the first two counts of Swafford’s
complaint, we discern no reason why the RPA would not apply to all three. After all, the RPA
protects the landowner from liability. O.C.G.A. § 51-3-22. Regardless of which theory of
negligence Swafford advances, the United States is the landowner he is seeking to hold liable.
And, of course, we may affirm a district court’s judgment on any reason supported by the record,
irrespective of whether the district court relied on that reason. See Walden v. Ctrs. for Disease
Control & Prevention, 669 F.3d 1277, 1283 (11th Cir. 2012).
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condition, use, structure, or activity.” O.C.G.A. § 51-3-25. This exception is not

relevant to this case, as Swafford makes no allegations of willful or malicious

conduct by the Corps or Anderson.

      The second exception removes the RPA’s protection from liability “[f]or

injury suffered in any case when the owner of land charges the person or persons

who enter or go on the land for the recreational use thereof.” O.C.G.A. § 51-3-

25(2). The statute defines “charge” as “the admission price or fee asked in return

for invitation or permission to enter or go upon the land.” O.C.G.A. § 51-3-21(1).

The statute non-exhaustively defines “recreational purpose” to include “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.” O.C.G.A. § 51-3-21(4).

      Georgia’s courts have interpreted the RPA broadly in order to effectuate its

purpose of encouraging land owners to open their properties for recreational use.

And while the Georgia courts have several times considered fees charged by

landowners, we have not located a single case where a Georgia court concluded

that any fee qualified as a charge for admission to the property within the meaning

of O.C.G.A. § 51-3-25(2).

      In apparently the first case to consider the RPA, the Georgia Supreme Court

held that a $1.00-per-car parking fee did not qualify as a charge for admission to


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the park. Stone Mountain Mem’l Ass’n v. Herrington, 171 S.E.2d 521, 523 (Ga.

1969). Although the court offered sparse discussion of the issue, it found that the

parking fee was charged per car, not per occupant of the car. The court explained

that, in its view, the fee was “purely a parking or driving permit for automobiles,

and was in no way related to the admission of persons to the park.” Id. Other

Georgia courts have similarly found that parking or automobile fees are

distinguishable from admission fees under the RPA. See, e.g., Lowry v. Cochran,

699 S.E.2d 325, 330 (Ga. Ct. App. 2010); Majeske v. Jekyll Island State Park

Auth., 433 S.E.2d 304, 305-06 (Ga. Ct. App. 1993).

      Still other cases have likewise concluded that when fees relate to other

services or permits, those fees are not “admission” charges within the meaning of

the statute. For example, in Lee v. Department of Natural Resources, 588 S.E.2d

260 (Ga. Ct. App. 2003), the plaintiffs traveled to Ossabaw Island, Georgia, to go

hunting. Id. at 262. Georgia law requires hunters to obtain “wildlife management

area licenses” to hunt in various wildlife areas around the state. Id. at 262-63.

Although the plaintiffs could not enter the island (or other wildlife areas in the

state) to hunt without paying the fee to obtain a Georgia wildlife management area

license, the court noted that access to the island for “recreational purposes is free to

members of the general public, as are permits to hunt on the island, subject to

having valid hunting and wildlife management area licenses.” Id. at 262. So the


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court held that the fees paid were for those licenses and “not for entry upon

Ossabaw Island for recreational purpose.” Id. at 262-63.

      In Hogue v. Stone Mountain Memorial Ass’n, 358 S.E.2d 852 (Ga. Ct. App.

1987), a family was charged a $4 fee when entering the park, “in return for which

they received a vehicle sticker which permitted them to exit and re-enter the park

without additional charge during their stay there.” Id. at 854. The per-vehicle

sticker fee also did not depend on the number of occupants in the car.           Id.

Additionally, during the family’s stay, they paid a camping registration fee and

purchased food, souvenirs, and attraction tickets. Id. Relying on Herrington, the

Georgia court concluded that the vehicle fee was for permission to use the vehicle

in the park and not “a charge for the recreational use of the parkland itself.” Id.

Similarly, the court concluded that the camping fee and other purchases were not

“charges for the recreational use of the parkland itself, it appearing that such

general activities as swimming and sightseeing were available to and engaged in

by the family without charge.” Id.

      Likewise, Georgia courts have found that when fees are used to defray

certain costs, those fees are not admission charges.       For example, in South

Gwinnett Athletic Ass’n, Inc. v. Nash, 469 S.E.2d 276 (Ga. Ct. App. 1996), a little-

league baseball player was injured climbing on a wall while watching his brother’s

T-ball game. Id. at 276-77. The boy’s family argued that the league registration


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fees constituted admission charges within the meaning of the RPA. Id. at 277. But

the court concluded that this fee was not an admission charge, finding persuasive,

among other things, that the fee was charged to cover league expenses such as

uniforms, umpires, lights, water, and sanitation. Id.; see also Gayle v. Frank

Callen Boys & Girls Club, Inc., 745 S.E.2d 695, 697-98 (Ga. Ct. App. 2013) (fees

used, among other things, to “defray some of the operating costs for recreational

activities”).

                                          B.

       With these cases in mind and on this record, we conclude that the fees

charged by the Corps at the Campground, which are assessed to defray the costs of

providing electricity and other utilities, do not constitute admission fees charged

for permission to enter Campground for recreational use. It is undisputed here that

the Corps uses the campsite and visitor fees it collects to defray some of the costs

of services it provides at the Campground. See Gayle, 745 S.E.2d at 697-98; Nash,

469 S.E.2d at 277. It charges the variable campsite fee based on the amperage

available at individual campsites and does not charge for any recreational activities

at the Campground. See Lee, 588 S.E.2d at 262-63; Hogue, 358 S.E.2d at 854.

And the Corps charges the fee on a per-vehicle basis—and not per-person—

suggesting the fee is “in no way related to the admission of persons to the park.”

See Herrington, 171 S.E.2d at 523.


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      We also note that federal law expressly prohibits the Corps from charging an

entrance fee for admission to its public recreation areas. 16 U.S.C. § 460d-3(a).

But federal law does allow the Corps to charge for use of “developed recreation

sites and facilities,” as well as to assess fees “for the use of specialized sites,

facilities, equipment or services related to outdoor recreation furnished at Federal

expense.” 16 U.S.C. § 460d-3(b)(1); 36 C.F.R. § 327.23(a). The fees charged by

the Corps at the Campground are authorized by these latter provisions and are

compatible with Georgia law.       Indeed, the distinction in federal law between

admission fees and use fees emphasizes the view of Georgia courts that an

admission fee can be, and is, distinguishable from service or facilities fees.

      We acknowledge that, in determining that the RPA does not apply, some

Georgia cases have also recognized as important the ability to access the land free

of any charge. See, e.g., Herrington, 171 S.E.2d at 523; Nash, 469 S.E.2d at 277;

Lowry, 699 S.E.2d at 330; Majeske, 433 S.E.2d at 305-06. But other cases have

not considered the fees’ impact on access. See, e.g., Quick v. Stone Mountain

Mem’l Ass’n, 420 S.E.2d 36, 38 (Ga. Ct. App. 1992); Hogue, 358 S.E.2d at 854.

Every Georgia case we have reviewed, though, has emphasized to some extent the

use or purpose of the fee in determining whether the RPA applies. Under the

circumstances of this case—where federal law prohibits the Corps from charging

an admission fee and it is undisputed that the purpose of the fee is to defray the


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              Case: 15-15412       Date Filed: 10/27/2016      Page: 21 of 21


costs of utilities and services provided to campers and their guests—we have little

difficulty concluding that the fee charged here is not a charge for admission. 3

                                              V.

       In sum, we conclude that the district court erred in applying the

discretionary-function exception of the FTCA to Swafford’s claims. Accordingly,

we reverse that part of the district court’s order. But we find that the district court

correctly determined that the fees charged by the Corps are not admission charges

within the meaning of the RPA. For this reason, we affirm the district court’s

application of Georgia’s RPA to Swafford’s case.

       AFFIRMED.




       3
          We also acknowledge the possibility that a nefariously creative landowner could
attempt to disguise his admission fee as nothing more than a service fee. But those are not the
facts and circumstances presented in this case.
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