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Action for damages. Fulton Superior Court. Before Judge Etheridge.
HALL, Presiding Judge.
Under the law of Georgia, damages resulting from tortious performance of governmental functions by a municipality must be borne solely by the injured individual. The branch of government which has the power to change this law and which likewise must assume responsibility for its continued existence is the General Assembly of Georgia.
In a tort action, the defendant city appeals from the denial of its motion for summary judgment on the ground of governmental immunity.
Plaintiff's complaint alleged the following: His twelve-year old son was one of a group of young boys which regularly congregated at Bobby Jones Golf Course in Atlanta to serve as caddies. They were also allowed and encouraged to search for lost golf balls which they sold to the course pros for resale in the clubhouse. Plaintiff's son was engaged in such a search when he was struck in the head by a golf ball in play. He suffered severe and permanent brain injury. Plaintiff made demand upon the city pursuant to Code Ann. 69-308. The claim was refused. Plaintiff also alleged, and contends here, that in the operation of this golf course, the city is engaged in a proprietary function as it receives substantial revenue from greens fees comparable to private golf courses.
"The American rules governing the tort liability of municipal corporations make a curious patchwork of immunity and responsibility. The dominant motif is a supposed distinction between governmental and proprietary functions . . . No satisfactory test has been devised for distinguishing [between these] functions . . . Little wonder that courts and commentators have despaired of finding a rational and consistent key to the distinction." 2 Harper & James, The Law of Torts 1019-1623, 29.6.
Probably as both cause and effect of this pattern, there has been a definite trend away from the absolute defense of governmental immunity in most jurisdictions. See Alstyne, Governmental Tort Liability: A Decade of Change, 1966 U. Ill. L. Forum 919. In a few states it has been legislatively abolished, but more often the response to a conscience-shocking case has been a judicial hairline distinction--another piece on the patchwork.
Until very recently, Georgia courts have refused to participate in the quilting bee. With a few classical exceptions (e.g., streets and utilities) we have found virtually every municipal activity to be governmental and therefore protected from tort liability. Perhaps an indication of a new attitude is the result reached in Town of Fort Oglethorpe v. Phillips, 224 Ga. 834 (165 SE2d 141), where the Supreme Court declared that the maintenance of a traffic signal was governmental, but held that the plaintiff had a cause of action in nuisance. "This expansion of municipal liability has received mixed reaction . . . Nevertheless, the Supreme Court's decision did produce the effect of making a new inroad on the doctrine of municipal immunity. Although any inroad is welcomed, it is questionable whether Phillips will prove to be a benefit or a burden." Comment, 5 Georgia S.B.J. 474, 489 (1969).
Elsewhere in the country, when golf courses have been specifically considered, the "general rule" is to find them proprietary. 18 McQuillin, Law of Municipal Corporations, 455, 53.115. However, the cases are few, no two have the same rationale, and none has a statutory and case law background duplicating Georgia's. While we have had no golf course cases, we do have an established line holding parks and recreational facilities to be governmental. Cornelisen v. City of Atlanta, 146 Ga. 416 (91 SE 415); City of Warrenton v. Smith, 149 Ga. 567 (101 SE 681); Autrey v. City Council of Augusta, 33 Ga. App. 757 (127 SE 796); Stubbs v. City of Macon, 78 Ga. App. 237 (50 SE2d 866).
Georgia has a "consistent key." Laid down in 1916 and scrupulously followed since, is this test: "Where a city maintains a park primarily for the use of the public, intended as a place of resort for pleasure and promotion of health of the public at large, its operation is in virtue of the governmental powers of the municipality, and no municipal liability would attach to the non-performance or improper performance of the duties of the officers, agents, or servants of the city in resect to keeping the park safe for use by members of the general public. It would not affect the public character of the duties of the officers, agents, or servants of the city that a purely incidental profit might result to the city from its operation or management of the park. But if the city, having charter authority, maintains the park primarily as a source of revenue, the duty of maintaining it in a safe condition for the use for which it is intended would be ministerial, and municipal liability attach for breach of such duty." Cornelisen v. City of Atlanta, 146 Ga. 416 (1, 2), supra. An example of the tenacity with which this test has been followed in a variety of activities is this court's holding that the profitable manufacture and sale of sanitary toilets was governmental as the city's charter granted no authority to engage in this specific activity primarily as a source of revenue. Watkins v. City of Toccoa, 55 Ga. App. 8 (189 SE 270).
The test neatly bars the door to most municipal activity. Cities don't operate facilities primarily as a source of revenue, and the legislature does not ordinarily give this kind of charter authority. In fact, the opposite is more often the case--a potential profit-making activity is restricted by charter to a break-even operation. See City of Rome v. Justice, 40 Ga. App. 196 (149 SE 88).
It should be fundamental that any city activity or operation is carried on primarily for the public benefit, even if for only a limited segment of the public. To make this criterion for the governmental-proprietary distinction is, we believe, patently ridiculous. Nevertheless, we must follow the ratio decidendi of the Cornelisen case. We have not overlooked City of Atlanta v. Rich, 64 Ga. App. 193 (12 SE2d 436) where this court managed to get a cemetery (operated at a loss) classified as proprietary. The reasoning was labored and the case has added nothing but confusion to the subject. We prefer not to make a bad situation worse.
The appellee makes a logical argument in saying that even if this is a governmental function, the damages resulting from tortious performance of governmental functions should not be borne solely by the injured individual--that they should be shouldered by the government and distributed to the taxpayers who are the ultimate beneficiaries of public activities. However, that argument addresses itself to the legislative branch of government. In Georgia, the legislature has unfortunately codified the doctrine of municipal immunity into statutory law (Code 69-301) to the extent that the judicial branch of government has been pre-empted from effectively destroying that which it created. See Comment, 5 Georgia S.B.J. 494 (1969).
We therefore have no alternative but to hold that the trial court erred in denying the city's motion for summary judgment.
EVANS, Judge, dissenting.
I dissent from the judgment of reversal and the opinion of the majority. While I agree that our rules governing tort liability in regard to suits against municipal corporations make a "curious patchwork of immunity and responsibility" and that no satisfactory test has been devised for distinguishing between governmental and proprietary functions, I think that, in this instance, the evidence is insufficient to establish as a matter of law, that maintenance of the golf course by the City of Atlanta is a governmental function. By affidavit, the General Manager of Parks swore that the golf courses of the City of Atlanta are a part of the Parks and Recreation administration of the City (including cemeteries); are not maintained for revenue purposes; the fees charged are regulatory in nature only and are only maintained to prevent overcrowding; and the "Bobby Jones Golf Course is a part of a larger park known as Atlanta Memorial Park." Considering all of his statements as being true, this does not establish that a golf course, maintained by the City of Atlanta, becomes a governmental function, as distinguished from a cemetery, and therefore becomes a park. It is clear that the reasoning of counsel for the city was an attempt to show the maintenance of a municipal golf course is a governmental function as opposed to a ministerial function and therefore comes within the rule established in Cornelisen v. City of Atlanta, 146 Ga. 416 (91 SE 415). To this I cannot agree. I cannot see any real difference between the maintenance of a cemetery where the lot holders pay for their easements (thereby excluding the general public, or the public at large) and a golf course in which greens fees are charged, and only those members of the public who pay the fee may play, while other members of the public, who merely wish to walk around in the open area, enjoying the sunlight and other pleasures of a walk in a park, are excluded. A golf course is not a park, and I am certain that here the general public is excluded from its use. In fact, the affidavit of Mr. Delius shows clearly that greens fees are charged for the purpose of excluding the public generally, to prevent overcrowded conditions, and to allow only the playing of golf thereon. While his affidavit attempts to establish that this is a mere area of a park, nevertheless, I do not feel that the evidence submitted on summary judgment has been sufficient to pierce the allegations of the petition, and establish, as a matter of law, that a golf course becomes a governmental function rather than a ministerial one. Lacking any other evidence than that submitted on summary judgment here, I would be willing to decide that the City of Atlanta is acting in a proprietary capacity similar to that of the City of San Mateo (Plaza v. City of San Mateo, 123 Cal. App. 2d 103, cited in the majority opinion). While, for some other reason, the petitioner might not be able to maintain his action or prove his complaint as alleged, until some other evidence is shown, under the new Civil Practice Act, the court below was correct in its ruling denying summary judgment in favor of the City. As to the rules of evidence applicable to motions for summary judgment, see Holland v. Sanfax Corp., 1196 Ga. App. 1, 4 (126 SE2d 442).
Albert M. Horn, for appellee.
Henry L. Bowden, Thomas F. Choyce, for appellant.
Friday May 22 16:37 EDT

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