                            Patrick M. HENDRICKSON, Plaintiff-Appellant,

                                                     v.
                              GEORGIA POWER CO., Defendant-Appellee.

                                               No. 00-11069.

                                      United States Court of Appeals,
                                             Eleventh Circuit.

                                               Jan. 31, 2001.

Appeal from the United States District Court for the Middle District of Georgia. (No. 96-00500-CV-3-5),
Duross Fitzpatrick, Chief Judge.
Before DUBINA and HULL, Circuit Judges, and HODGES*, District Judge.

        HULL, Circuit Judge:

        Appellant-Plaintiff Patrick Hendrickson appeals the district court's order granting Appellee-Defendant
Georgia Power Company's motion for summary judgment on his wrongful death complaint, and denying

Hendrickson's motion for partial summary judgment. The principal question on appeal is whether the Georgia

Recreational Property Act ("RPA"), O.C.G.A. § 51-3-20, et seq., provides immunity to Georgia Power as the

owner of recreational property. After review, we affirm.

                                      I. FACTUAL BACKGROUND

        Appellant-Plaintiff Patrick Hendrickson ("Hendrickson") is the father of a teenage boy murdered at
the Dames Ferry Public Use Area ("Dames Ferry"), adjacent to Lake Juliette in Monroe County, Georgia.
The teenage boy and a female companion were found dead on the morning of Tuesday, January 3, 1995, on

the "point" located on Dames Ferry very close to the water. Both victims had multiple gunshot wounds.
Although the body of Hendrickson's son was found in his vehicle, the partially nude body of his son's

companion was dragged several feet away from the vehicle. Andrew Cook was arrested and later convicted

for both murders.

        Dames Ferry is a sixty-five-acre tract fronting on Lake Juliette. Appellee-Defendant Georgia Power
Company ("Georgia Power") owns both Dames Ferry and Lake Juliette which supplies water for cooling and
steam generation at Georgia Power's Plant Scherer. Georgia Power makes Dames Ferry and Lake Juliette

available at no charge to the public for boating, fishing, sailing, swimming, picnicking, camping, hunting,


   *
     Honorable William Terrell Hodges, U.S. District Judge for the Middle District of Florida sitting by
designation.
hiking, and scenic viewing of the lake and surrounding area. There are no admission or parking fees at

Dames Ferry. There are also no Georgia Power vendors or any other commercial vendors located at Dames
Ferry. All recreational features, such as a boat-launching ramp and picnic tables, are provided to visitors at

no charge.

        Dames Ferry is used extensively by the public from May through early September of each year, when

thousands of individuals visit the park. Dames Ferry is used to a much lesser degree in the early spring and
fall, and it is used the least during the winter. On weekends from Memorial Day to Labor Day, Georgia

Power employs a private security company to monitor the area.
                                      II. PROCEDURAL HISTORY

        Hendrickson brought this wrongful death tort action against Georgia Power to recover damages

caused by the death of his son. Hendrickson's complaint alleged that Georgia Power was negligent in that
(a) "the unreasonable risk of violent criminal activity to which [his son] was exposed while lawfully on
Georgia Power's premises" was reasonably foreseeable and (b) Georgia Power negligently chose "not to take

any reasonable measures for the security or protection of persons," such as his son.
        At a discovery conference, the district court by consent limited discovery to the applicability of the

RPA. After Georgia Power filed a motion for summary judgment, Andrew Cook was convicted for the murder
of Hendrickson's son. Hendrickson then filed an excerpt from the criminal trial transcript and in turn Georgia
Power proposed to file the entire transcript. The district court then summarily denied Georgia Power's motion

for summary judgment and ordered that "[t]he Court will, however, allow Defendant to renew any contention
made in its summary judgment motion after further discovery on all liability issues is conducted."

        After additional discovery, Hendrickson moved for partial summary judgment arguing that the
immunity from liability afforded to property owners under the RPA did not apply to Georgia Power. Georgia

Power simultaneously moved for summary judgment as to all liability issues. The district court denied

Hendrickson's motion for summary judgment and granted Georgia Power's second motion for summary

judgment. See Hendrickson v. Georgia Power Co., 80 F.Supp.2d 1374, 1383 (M.D.Ga.2000). In its order,

the court determined: (1) that Georgia Power was entitled to the immunity protections afforded by the RPA;

(2) that the RPA's liability exception for willful or malicious failure to warn against a dangerous condition
did not apply because the evidence did not create an issue of material fact regarding Georgia Power's

knowledge of a dangerous condition at Dames Ferry; and (3) that even if the RPA was not applicable, the

murders were not foreseeable crimes, and thus Georgia Power did not have a duty to use reasonable care to
prevent the death of Hendrickson's son. Hendrickson timely appealed.
                                       III. STANDARD OF REVIEW

         We review de novo a district court's grant of summary judgment, applying the same legal standard

employed by the district court. See Whatley v. CNA Ins. Cos., 189 F.3d 1310, 1313 (11th Cir.1999). A party

seeking summary judgment must demonstrate that "there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether

genuine issues of material fact exist, we view all evidence, and make all reasonable inferences, in favor of

the party opposing summary judgment. See Whatley, 189 F.3d at 1313.

                                              IV. DISCUSSION

A.       Georgia's Recreational Property Act
         The State of Georgia enacted the Georgia Recreational Property Act ("RPA"), O.C.G.A. § 51-3-20,

et seq., to limit, with narrow exceptions, the liability of a landowner who makes its property available

"without charge" to the public for "recreational purposes."1 O.C.G.A. §§ 51-3-20 to 51-3-25. The statutory
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. Section 51-3-22 of the RPA limits the land owner's duty of care as follows:
         Except as specifically recognized 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 give any
         warning of a dangerous condition, use, structure, or activity on the premises to persons entering for
         recreational purposes.
O.C.G.A. § 51-3-22.2 In turn, § 51-3-25 provides that nothing in the RPA, however, limits liability for


     1
     Subsections 51-3-21(1) and (4) of the RPA define "charge" and "recreational purpose," as follows:

                 (1) "Charge" means the admission price or fee asked in return for invitation or permission
                 to enter or go upon the land.
                 ...

                 (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 diving, nature study, water skiing, winter sports, and viewing or enjoying
                 historical, archeological, scenic, or scientific sites.

         O.C.G.A. § 51-3-21(1), (4).
     2
     Section 51-3-23 of the RPA also provides that except as provided in § 51-3-25, a landowner:

                 who either directly or indirectly invites or permits without charge any person to use the
                 property for recreational purposes does not thereby:
"willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity."

O.C.G.A. § 51-3-25. The net result is that under the RPA a landowner who makes his property available to

the public for recreational use "without charge" is liable only for "willful or malicious failure to guard or warn

against a dangerous condition, use, structure, or activity." O.C.G.A §§ 51-3-20 to 51-3-25.
         The Georgia Supreme Court has applied the RPA in a number of decisions that inform our analysis

in this case.3 In Cedeno v. Lockwood, 250 Ga. 799, 301 S.E.2d 265 (1983), the Georgia Supreme Court held

that Lockwood, the defendant, was not protected by the RPA because the public was permitted on the

property for business purposes, even though the business was recreational in nature. See id. at 267. The

plaintiff was injured on Lockwood's stairway adjacent to a building in Underground Atlanta.                   The
Underground Atlanta property owners, including Lockwood, made "their property available to the public for

entertainment purposes and anticipate the visitors will purchase food, merchandise, or services available."

Id. Finding that the property owners of Underground Atlanta were in the "business of entertainment or

recreation," the Georgia Supreme Court held that "[t]he important criterion is the purpose for which the public

is permitted on the property." Id. The Georgia Supreme Court further held that "[i]f the public is invited to

further the business interests of the owner ... the RPA will not shield the owner from liability even though

the public receives some recreation as a side benefit." Id.

        In contrast, in City of Tybee Island v. Godinho, 270 Ga. 567, 511 S.E.2d 517 (1999), the Georgia

Supreme Court held that the City's sidewalk, adjacent to a public beach, was protected by the RPA even

though the City received an indirect financial benefit from the presence of the sidewalk. See id. at 519. The

Georgia Supreme Court found that:

        a primary purpose of the sidewalk is to "give the public a place of recreation" by providing access
        to and viewing of a scenic site ... and that the City is not in the business of entertainment or recreation
        and does not seek to make a profit from the use of the sidewalk.

Id. (quoting Cedeno, 301 S.E.2d at 267); see Bourn v. Herring, 225 Ga. 67, 166 S.E.2d 89 (1969) (holding

that a picnic and lake area made available by defendant corporation to the public to promote the sale of


                 (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.

        O.C.G.A. § 51-3-23.
    3
    As a federal court sitting in diversity, we are required to apply the law as declared by the state's
highest court. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
defendant's commercial products and for advertising purposes came within the definition of recreational

purpose under the RPA); Quick v. Stone Mountain Mem'l Ass'n, 204 Ga.App. 598, 420 S.E.2d 36 (1992)

(finding plaintiff's injuries resulted from her general recreational use of park for which no fee was charged
and holding park to be a public recreation area protected under the RPA, notwithstanding the fact that

substantial revenues were derived from the sale of special permits, concessions, and tickets to rides and other

attractions located at the park); Hogue v. Stone Mountain Mem'l Ass'n, 183 Ga.App. 378, 358 S.E.2d 852

(1987) (same).
        "[I]n situations where commercial interests are mixed with recreational activities," the Georgia

Supreme Court recently has adopted a "balancing test" to determine whether the protection of "the RPA may

apply." Anderson v. Atlanta Comm. for Olympic Games, Inc., 273 Ga. 113, 537 S.E.2d 345, 348 (2000). The

plaintiffs in Anderson sued the Atlanta Committee for the Olympic Games ("ACOG"), seeking damages for

wrongful death and personal injuries arising from the bombing in Centennial Olympic Park during the 1996

Olympic Games. See id. at 347. The ACOG made the land in Centennial Olympic Park available to the

public at no charge during the Olympic festivities. See id. The Anderson plaintiffs argued that the ACOG

fell outside the RPA's protection, even though the ACOG charged no fee to the public, because the ACOG's

purpose in making Centennial Olympic Park available to public was to further a commercial enterprise. See

id. at 349.

         In Anderson, the Georgia Supreme Court held that, for the RPA to apply, "it is not necessary that

the public be on the property for 'sheer recreational pleasure' and that the RPA may apply in situations where

commercial interests are mixed with recreational activities." Id. (quoting City of Tybee Island, 511 S.E.2d

at 518). Recognizing that Georgia case law gave "little guidance to the courts in determining the applicability

of the RPA in mixed-use cases," the Georgia Supreme Court expressly adopted the "balancing test" set forth

by the Wisconsin Court of Appeals in Silingo v. Village of Mukwonago, 156 Wis.2d 536, 458 N.W.2d 379

(1990) to determine whether property is being used for "recreational" or "commercial" purposes. Anderson,

537 S.E.2d at 349. The Georgia Supreme Court adopted this "balancing test":
        [The test] requires that all social and economic aspects of the activity be examined. Relevant
        considerations on this question include, without limitation, the intrinsic nature of the activity, the type
        of service or commodity offered to the public, and the activity's purposes and consequence[s].

Id. (quoting Silingo, 458 N.W.2d at 382). In light of the adoption of this balancing test, the Anderson court

remanded the case for the trial court "to apply the test." Id.
B.       Dames Ferry
         Applying Georgia law, we find that the district court correctly concluded that Dames Ferry falls

under the protection of the RPA. Georgia Power makes Dames Ferry open to the public for recreational

activities. The victims were not on the property to further any commercial interests of Georgia Power. There
is no mixture of commercial and recreational activities taking place at Dames Ferry. There was no admission

fee to get into Dames Ferry, no parking fees, no costs for the use of any of the facilities once a visitor entered

Dames Ferry, and there were no vendors in Dames Ferry from whom visitors could buy anything. In fact,

the operation of Dames Ferry actually generates expenses for Georgia Power. Furthermore, Dames Ferry is
a wholly recreational facility that is used by the public for boating, fishing, sailing, swimming, picnicking,

hiking, and scenic viewing of the lake and surrounding area.

         We recognize that Hendrickson argues that Georgia Power also operates Dames Ferry for a business
or commercial purpose in that it needs water and access to water to generate electricity, and it includes the

costs of both the operation and improvement of Dames Ferry in the utility rate bases submitted to the Georgia
Public Service Commission ("GPSC") and the Federal Energy Regulatory Commission ("FERC") in order

to obtain approval of utility rates charged to consumers.4 Because Georgia Power includes the operation and

improvement costs of Dames Ferry in its utility rate bases, Hendrickson argues that the utility rates passed

on to consumers are necessarily higher as a result of the operation of Dames Ferry and that Georgia Power,
in a sense, is recouping its costs and to some extent profiting from the operation of Dames Ferry.

Hendrickson also emphasizes that Georgia Power's leasing arrangements with the State of Georgia require
it to allow public access to its power-generating lake and that Dames Ferry is an access point to that lake.
Hendrickson further asserts that Georgia Power also receives intangible benefits in the form of goodwill that

Georgia Power can use to its advantage in seeking approvals from regulatory bodies for its utility rates.

Therefore, Hendrickson argues that Georgia Power operates Dames Ferry for both recreational and business
purposes.

         First, Hendrickson's arguments ignore that the purpose of his son's visit to Dames Ferry was
recreational and not to further the business of Georgia Power. Georgia Power permits the public on the

property only for recreational purposes and not to further its commercial utility business. While Georgia


     4
    There is evidence in the record to suggest that, at the time of the murders, the operation expenses of
Dames Ferry were not included in the utility rate base approved by the GPSC. However, at the summary
judgment phase, we must view the evidence in the light most favorable to Hendrickson.
Power makes its property available without charge for recreational purposes, Georgia Power is in the utility

business and not in the recreation business. Thus, we reject Hendrickson's contention that this is a mixed-use
case.

         Secondly, even if Dames Ferry were being used for mixed recreational and business purposes, Dames

Ferry is clearly entitled to RPA protection under Anderson 's balancing test. For example, the intrinsic nature

of Dames Ferry is recreational. The type of service or commodity offered to the public at Dames Ferry is

recreational. And, finally, the purpose of the activity at Dames Ferry is recreational.

         Furthermore, in Anderson the Georgia Supreme Court did not preclude consideration of the factors

focused on in Quick and Hogue, but, rather it emphasized that the balancing test requires that " 'all social and

economic aspects of the activity be examined.' " Anderson, 537 S.E.2d at 349 (quoting Silingo, 458 N.W.2d

at 382) (emphasis supplied). Thus, Georgia law still affords protection under the RPA even where an entity

directly generates some revenue from the recreational area and charges for the use of specific attractions such
as rides at a public amusement park, so long as a plaintiff's injuries stem from the general recreational use of

the property. See Quick v. Stone Mountain Mem'l Ass'n, 204 Ga.App. 598, 420 S.E.2d 36, 38 (1992); Hogue

v. Stone Mountain Mem'l Ass'n, 183 Ga.App. 378, 358 S.E.2d 852, 854 (1987). In both Quick and Hogue,

the Georgia Court of Appeals examined the source of the plaintiffs' injuries and determined that the injuries
resulted from the general recreational use of the premises, as opposed to a use for which a fee was charged.

See Hogue, 358 S.E.2d at 854 (summary judgment granted for defendant under the RPA for injuries sustained

by plaintiff while walking to an attraction at Stone Mountain Park); Quick, 420 S.E.2d at 37-38 (summary

judgment granted for defendant under the RPA for injuries sustained by plaintiff while walking in an unpaved
area at Stone Mountain Park). The victims in the present case were not murdered in connection with any

commercial activity conducted by Georgia Power or vendors at Dames Ferry for which a fee was charged.5
         For all of these reasons, Georgia Power's Dames Ferry falls under the RPA, and Georgia Power is

immune from liability unless a plaintiff shows a willful or malicious failure to guard or warn of a dangerous,

condition, use, structure, or activity.

C.       Willful or Malicious Conduct Exception
         Hendrickson asserts that Dames Ferry was inherently dangerous in light of criminal activity that took



     5
     Even without consideration of the factors in Quick and Hogue, Georgia Power is entitled to RPA
protection for the reasons outlined in this opinion.
place prior to his son's murder. Hendrickson argues that Georgia Power's failure to address this criminal

activity amounts to a "willful" or "malicious" failure to guard or warn against a dangerous condition and that

Georgia Power thus should not enjoy RPA protection for Dames Ferry. The district court's order outlined
certain criminal activity, such as discharge of firearms, abuse of alcohol, fighting, flashing, burglary, and

other assorted conduct. See Hendrickson, 80 F.Supp.2d at 1379. Hendrickson also introduced several

affidavits from witnesses who warned Georgia Power's agents about problems that might occur at Dames

Ferry if the status quo continued. See id. at 1379-80. We agree, however, with the district court's

well-reasoned order that the evidence, even when viewed in the light most favorable to Hendrickson, fails
to raise a genuine issue of material fact regarding any willful or malicious failure to warn or guard against

a dangerous condition or activity by Georgia Power. These murders were a total aberration and unlike any

criminal activities that had ever occurred at Dames Ferry both in type, nature, degree, and time of year.6
Finally, we also agree with the district court that the crime that occurred in this case was not foreseeable as
a matter of law.7

    6
     The criminal activity that did occur at Dames Ferry was in context minor and mostly in the summer
months. For example, in the five years before the murders in 1995, there were two vehicle break-ins in
1991. There were no vehicle break-ins in 1990. There was a single stolen vehicle report in June 1993.
Although between May and September Georgia Power averaged twenty thousand visitors per year at
Dames Ferry: (a) only one fight was reported to Georgia Power in 1989; (b) two fights were reported in
1990, one in 1991, two in 1992; and (c) there were no fights reported in 1993 or 1994. None of the
reported fights involved guns or knives. Only the one fight in 1990 involved injuries. One woman was
arrested at Dames Ferry for pointing a gun at another before the murders, but the charges were later
no-billed by a Monroe County grand jury. There was no evidence anyone had ever been shot at Dames
Ferry. This list is not exhaustive, but is illustrative of the type of criminal activity at Dames Ferry.
    7
      Hendrickson also argues that the RPA arbitrarily distinguishes between property owners who make
their property available without charge and property owners who receive some consideration for allowing
the recreational use of the property. Hendrickson asserts that this distinction violates his equal protection
rights under both the United States and Georgia Constitutions because it "furnish[es] a gratuity to a
narrow class of property owners." The Georgia Supreme Court rejected a similar argument in Anderson.
See Anderson, 537 S.E.2d at 348. We also find no merit to Hendrickson's argument that the RPA
unconstitutionally violated his equal protection rights. As the Georgia Supreme Court properly noted:
"The RPA does not disadvantage a suspect class or interfere with the exercise of a fundamental right and
thus it need only bear a reasonable relationship to a legitimate state purpose." Id. at 348 (citing City of
Atlanta v. Watson, 267 Ga. 185, 475 S.E.2d 896 (1996)). "Under an equal protection analysis, 'unless the
case involves a suspect class or a fundamental right, the Equal Protection Clause requires only that the
classification be rationally related to a legitimate state interest.' " Bah v. City of Atlanta, 103 F.3d 964,
966-67 (11th Cir.1997) (quoting Panama City Med. Diagnostic, Ltd. v. Williams, 13 F.3d 1541, 1545
(11th Cir.1994) (citing Nordlinger v. Hahn, 505 U.S. 1, 10-11, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992) and
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439-41, 105 S.Ct. 3249, 87 L.Ed.2d 313
(1985))). We find that the RPA reasonably promotes the legitimate governmental purpose of making
recreational property more accessible to the public and that the classification the RPA draws is rationally
related to this legitimate purpose. See Bah, 103 F.3d at 966-67; see also Anderson, 537 S.E.2d at 347
(citing Love v. Whirlpool Corp., 264 Ga. 701, 449 S.E.2d 602 (1994)). Additionally, we disagree that the
RPA's distinction between property owners who make their property available to the public without
                                             V. CONCLUSION

        We conclude that the district court properly afforded Georgia Power the protection of the RPA.

Accordingly, we affirm the district court's order granting Georgia Power's motion for summary judgment and
denying Hendrickson's motion for partial summary judgment.

        AFFIRMED.




charge is arbitrary or that it violates the United States or Georgia Constitutions for any other reason.
