Ex parte The Public Parks and Recreation Board of the City of Scottsboro PETITION FOR WRIT OF MANDAMUS (In re: Karon Patrick v. The Public Parks and Recreation Board of the City of Scottsboro) (Jackson Circuit Court: CV-20-900182).

Rel: December 20, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.

Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,

Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections

may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2024-2025

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_________________________

Ex parte The Public Parks and Recreation Board of the City of

Scottsboro

PETITION FOR WRIT OF MANDAMUS

(In re: Karon Patrick

v.

The Public Parks and

Recreation Board of the City of Scottsboro et al.)

(Jackson Circuit Court, CV-20-900182)

PER CURIAM.

The Public Parks and Recreation Board of the City of Scottsboro

("the Board"), which operates a public park commonly known as Goose

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Pond Colony, petitions this Court for a writ of mandamus directing the

Jackson Circuit Court to vacate its order denying the Board's motion for

a summary judgment and its order denying the Board's motion to

reconsider and to enter a summary judgment for the Board based on the

liability protections or immunity provided by Alabama's recreational-use

statutes, § 35-15-1 et seq. and § 35-15-20 et seq., Ala. Code 1975. We

grant the petition and issue the writ.

Facts and Procedural History

On December 10, 2020, Karon Patrick filed a complaint in the

Jackson Circuit Court against the Board, the City of Scottsboro, and

various fictitiously named defendants. Regarding the facts of the case,

she alleged:

"On or about December 22, 2018, Plaintiff was a business

invitee of the Defendants, [the Board] and the CITY OF

SCOTTSBORO by virtue of the Plaintiff and several of her

family members paying [the Board] and/or the City of

Scottsboro a significant sum of money to rent the Goose Pond

Lodge situated on the Defendants' real property.

"… On December 22, 2018, at the site and on the

premises of the Goose Pond Lodge, Plaintiff was caused to

suffer serious physical injury when she tripped, stumbled and

fell, chin and face-first, onto a concrete and/or asphalt surface

on the parking lot side of the Goose Pond Lodge. The

Plaintiff's primary injuries were a dislocated jaw, bilateral

mandibular subcondylar fractures, broken and chipped teeth,

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skin abrasions and bruises. The Plaintiff's tripping,

stumbling, falling and serious physical injuries were directly

and/or proximately caused by the singular or combining and

concurring negligent, wanton, willful, and/or reckless acts

and/or omissions of the Defendants."

The complaint stated claims of negligence, negligent design and

construction, and negligent supervision.

On January 11, 2021, the Board and the City filed an answer in

which they denied the allegations that were included in the complaint

and raised affirmative defenses. They specifically raised, in relevant

part, "the recreational immunity statute, pursuant to § 35-15-1, et seq

and/or § 35-15-20, et seq, Code of Alabama (1975)."

On January 17, 2023, the Board filed a motion for a summary

judgment, a brief in support thereof, and supporting evidence. It argued

that its liability was limited under Alabama's recreational-use statutes -

- §§ 35-15-1 through -5, Ala. Code 1975 ("Article 1"), and §§ 35-15-20

through -28, Ala. Code 1975 ("Article 2"). Initially, the Board argued that

the Goose Pond Colony was established for recreational purposes as

contemplated by the recreational-use statutes. Next, it argued that

Goose Pond Colony is noncommercial recreational land and that the

parking lot is the type of appurtenance contemplated by § 35-15-21(2),

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Ala. Code 1975. The Board also argued that, even though it received

income from Patrick for room rentals at a resort lodge located at Goose

Pond Colony, it did not operate the lodge for profit so as to fall outside of

the liability protections of the recreational-use statutes. Citing the

provisions of Article 1, it further argued that its liability is limited to

willful or malicious conduct. Finally, it argued that Patrick could not

establish that the exception to the liability protections provided by the

recreational-use statutes, which is set forth in § 35-15-24, Ala. Code 1975,

applies in this case. In making those final arguments, the Board argued,

among other things, that Patrick could not establish that it, "with actual

knowledge of the alleged trip hazard, maliciously and willfully failed to

remedy or warn against the dangerous condition."

In support of its motion for a summary judgment, the Board

attached an affidavit from Lyle Sosebee, in which Sosebee stated:

"My name is Lyle Sosebee. I am over the age of nineteen

years and have personal knowledge of the facts contained

herein. I am the general manager of Goose Pond Colony in

Scottsboro, Jackson County, Alabama. Goose Pond Colony is

a resort facility owned by the City of Scottsboro, and operated

by the Public Park and Recreation Board of the City of

Scottsboro.

"The Public Park and Recreation Board was

incorporated in 1967 for the purpose of operating a public

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park now known as Goose Pond Colony. The specific

incorporating purpose is set forth in the Certificate of

Incorporation of The Public Park and Recreation Board of the

City of Scottsboro, a true and correct copy of which is attached

hereto as Exhibit '1'. As per the Certificate of Incorporation,

Goose Pond Colony operates a golf course, camp ground,

restaurants, marina, swimming pool, water craft rentals,

fishing accoutrements and lodging facilities. Goose Pond

Colony is a not for profit entity, and operates for the benefit

of the public. While Goose Pond charges fees for use of its

facilities, said fees are used for improvements and

maintenance of the park. This is the case for fees charged for

use of the Lodge at Goose Pond Colony. Goose Pond Colony

operates at a loss at various times, depending upon the cost of

ongoing projects and the income generated by admission of

the public.

"The Board hired Taylor Home Builders in 2000 to

construct the Lodge at Goose Pond Colony. The Lodge

consists of six rental rooms that are available to the public

upon payment of the required rental fee. The Lodge has its

own parking lot for renters to use while visiting. No material

changes were made to the parking lot for the Lodge from its

initial construction in 2000 until the date of the Plaintiff's

accident. Until Mrs. Patrick tripped and fell, no other similar

accidents were reported to my office."

The Board also attached to its summary-judgment motion transcripts of

the depositions of Patrick, her husband David Patrick, and Glenn

Summerford.

In her deposition, Patrick stated that she and her husband had

rented three units at the lodge at Goose Pond Colony and that, around

noon on December 22, 2018, they had obtained the key to one of the units

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at the lodge and had gone to check out the facilities. She admitted that,

at that time, there were a lot of leaves and debris from trees in the

parking lot and that her husband had mentioned the leaves and debris

to a maintenance employee when they picked up the key. She also

admitted that she and her husband use the walking trails at Goose Pond

Colony quite frequently, that the walking trails go in front of and behind

the lodge and the parking lot, and that they had seen and walked by the

area before.

Patrick stated that, around 6:00 p.m., she and her husband went

back to the lodge to take groceries to the unit; that she had a bag in each

hand and started walking toward the door to the unit; and that she

stepped into "the dip" in the asphalt, tripped over a parking stop, and fell.

She also stated that the dip or depression was "probably four to six inches

deep" and one or two feet in diameter. Patrick further stated that some

of the security lighting was out when she fell. Finally, she stated that

there had been a lot of leaves in the dip or depression during the day but

that she thought that employees had blown off some or all of the leaves

after her husband had mentioned them.

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In his deposition, David Patrick stated that much of the area,

including where his wife fell, was covered with leaves the first time they

went to the lodge on December 22, 2018. He also stated that he thought

he and his wife had commented about the mess from the leaves at that

time. David admitted that he and his wife were familiar with the area

because they had walked on the walking trails that go in front of and

behind the lodge and the parking lot. He further testified that they had

contacted maintenance staff about a fire alarm in the unit and that, while

the maintenance employee was there, he had asked the employee to blow

the leaves away from the area. David testified that, when they returned

that evening, the leaves had been blown off but the outside lights were

not working. After his wife fell, she told him that she had stepped in a

dip, fallen forward, caught the curb stop with her toe, and landed on the

concrete. Finally, he stated that the dip had since been filled.

In his deposition, Glenn Summerford testified that he has worked

in the maintenance department at Goose Pond Colony for about 12 years

and that he had been the maintenance supervisor for about 6 or 7 years.

He admitted that the security light outside the unit was not working

when Patrick fell and that he replaced two bulbs shortly thereafter. He

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also admitted that leaves fell in the area of the parking lot at various

times, that they blew them off when they saw them collecting there, and

that, on the day of Patrick's fall, one of the maintenance staff members

had blown them off at a customer's request. Summerford testified that

he had known about the depressions in the parking lot since he had

started working at Goose Pond Colony; that, to his knowledge, no one had

ever complained about them; and that, to his knowledge, no one had ever

fallen there while he had worked there. Finally, he further testified that,

at some point after Patrick fell, maintenance staff had used some leftover

cold-mix asphalt to try to fill in the depressions in the parking lot in front

of the lodge.

On August 10, 2023, Patrick filed a response in opposition to the

motion for a summary judgment. She argued that the lodge and the

adjoining parking lot are not "outdoor recreational land" as defined in §

35-15-21(2), Ala. Code 1975. Specifically, she contended that the lodge is

"a standalone facility with one purpose or function: to house paying

guests"; that she and her husband had rented three units in the lodge to

house family members during the Christmas season; that she and her

family had not been entitled to use any of the other recreational facilities

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in Goose Pond Colony; and that she had been in the parking lot to deliver

groceries, which is not a recreational purpose.

Patrick also argued that the lodge and the adjoining parking lot are

not used for a "recreational purpose" as defined in § 35-15-21(3). First,

she contended that, because lodging is not expressly included in the

definition, it is not a "recreational use" or a "recreational purpose." Next,

she contended that no recreational activities were occurring in the

parking lot and that her act of delivering the groceries was not a

recreational purpose.

Patrick further argued that the lodge and the adjoining parking lot

constitute "commercial recreational use" property as defined in § 35-15-

21(5). Specifically, she contended that the lodge is a commercial

undertaking that is "profit motivated"; that its statement of revenues and

expenditures showed that, between October 1, 2018, and September 30,

2019, it had a gross revenue of $520,074 and excess revenue over expense

of $283,116; and that, "[a]t least from October 2007 through September

2022, the lodging facilities of Goose Pond Colony never operated at a

loss." Patrick also pointed out that Mark Peppers, a member of the

Board, had recommended that the Board "review one department each

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month to determine how increases in profitability can be achieved" and

that Summerford had testified that he had made the Board aware that

the pool at Goose Pond Colony lost money all the time and that he

thought it should be closed down.

In the alternative, Patrick argued that the Board would still be

liable based on the exception to the liability protections provided by the

recreational-use statutes that is set forth in § 35-15-24. Specifically, she

contended that the Board had actual and prior knowledge about the

allegedly defective condition in the parking lot, that that condition could

cause serious bodily injury, and that the condition did, in fact, cause

serious bodily injury to her.

In support of her response, Patrick attached her own affidavit;

statements of revenues and expenses for the Board from October 1, 2007,

through September 30, 2022; and minutes of the Board's September 29,

2020, meeting.

On August 11, 2023, the Board filed a reply brief in support of its

motion for a summary judgment. The Board first responded to Patrick's

argument that the lodge is a standalone facility with a singular purpose

of housing paying guests. The Board argued that it has the purpose of

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operating Goose Pond Colony for public, recreational use; that that

purpose specifically includes providing "public accommodation facilities,"

"cabins," "trailer sites," etc.; and that the fact that it charges money for

accommodations does not exclude it from the liability protections

provided by the recreational-use statutes. The Board also distinguished

the facts of this case from those in Ex parte City of Millbrook, 304 So. 3d

202 (Ala. 2020) (plurality opinion), noting that the lodge is immediately

adjacent to Lake Guntersville, with a dock available to patrons of the

lodge; that the lodge is surrounded by walking trails in Goose Pond

Colony; and that patrons of the lodge have full access to all the facilities

in Goose Pond Colony, whether or not they choose to use them.

Second, the Board responded to Patrick's argument that the

liability protections provided by the recreational-use statutes do not

apply to Goose Pond Colony because the lodge has allegedly never

operated at a loss. It initially noted that there is a distinction between

for-profit entities and not-for-profit and/or nonprofit entities; that simply

because the Board makes a profit does not mean it is a commercial

enterprise designed for making a profit; and that a nonprofit entity is not

precluded from making a profit. Instead, the Board argued that the

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pertinent issue is what the nonprofit entity does with the money it

makes. In this case, the Board stated, it uses the money derived from the

various facilities that charge a fee at Goose Pond Colony to continue the

operations of the park, including paying the costs for maintenance and

improvements.

Finally, the Board responded to Patrick's arguments regarding §

35-15-24. Specifically, it contended that "the foregoing portions of the

recreational statutes … limit the owner and operator of public

recreational land to [being liable for only] willful and malicious conduct."

It also contended that Patrick had not included any allegation of willful

or malicious conduct by the Board. The Board further argued that

Patrick had not satisfied her obligation to establish the requirements of

§ 35-15-24(a)(2), which requires a showing "(2) [t]hat a condition, use,

structure, or activity exists which involves an unreasonable risk of death

or serious bodily harm," and § 35-15-24(a)(3), which requires a showing

"(3) [t]hat the condition, use, structure, or activity is not apparent to the

person or persons using the outdoor recreational land." It contended that

there was not any evidence demonstrating that the condition of the

parking lot was dangerous because the evidence indicated that the

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parking lot had been in that condition for many years without a prior

mishap; that there was not any evidence demonstrating that the

condition of the parking lot was not apparent to Patrick, who had

successfully navigated it a few hours earlier that day; and that there was

not any evidence demonstrating a willful or malicious intent to injure.

In support of its reply brief, the Board included an affidavit in

which Patrick stated:

"My name is Karon Patrick. I am the Plaintiff in the

above-referenced lawsuit. My husband, David, and I rented

and signed a Lease Agreement for three units at the Lodge at

Goose Pond Colony in December of 2018 to house several of

our family members during the Christmas holidays. We paid

$1,234.80 to rent the three units at the Lodge. This payment

was for the rental and use of the three Lodge units only and

did not include privileges or access to any other … Goose Pond

Colony paid facilities such as the golf course, campground or

pool area.

"On December 22, 2018, we checked into the Lodge and

obtained keys to one of the units. We went grocery shopping

and returned to the Lodge at approximately 6:00 p.m. When

we arrived, [we] exited my car and got grocery bags out of the

car. I had a grocery bag in each hand and started walking

towards the door of the Lodge when I stepped into a dip or

hole in the parking lot which caused me to stumble and fall

face-first, hitting my chin on the concrete walkway in front of

the car stop. No recreational activities were being conducted

or even available in the Lodge parking areas.

"At the time of my fall, at least one of the security lights

mounted on the outside of the Lodge near our Unit was not

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working and it was dark. I could not see the hole or

depression in the pavement. We had been to [the] Lodge

earlier that same day to see what type of kitchen items and

serving pieces were in the unit and observed a significant

amount of leaves, sticks, and debris in the parking lot,

including leaves and debris covering or concealing the area

around the hole or dip which caused me to stumble and fall.

Because of the presence of the leaves and debris, I could not

see there was a hole or dip in that area of the parking lot. I

was not engaged in any type of recreational activity at the

time of my fall, and there were otherwise no such recreational

facilities in the Lodge units or the Lodge parking lot.

"After my fall, I was in substantial pain, but thought I

would be alright. I decided to consult a friend of ours, Dr.

Daniel Ortiz, an ear, nose, and throat surgeon who lived in

one of the Goose Pond Colony condominiums just down the

street from the Lodge facility. After talking with Dr. Ortiz

and after he looked at my mouth and jaw area, he advised me

to get an x-ray of my jaw which I did on December 26, 2018.

Those x-rays revealed that both sides of my jaw were broken.

As a result of the fall, I suffered a dislocated jaw, bilateral

mandibular subcondylar fractures, broken and chipped teeth,

skin abrasions and bruises. I had to have surgery to have my

jaw repaired, my mouth was wired shut, and I was unable to

eat solid foods for 6 weeks following the surgery and could

only eat liquid foods through a straw."

On August 22, 2023, the trial court denied the Board's motion for a

summary judgment. In its order, the court stated:

"This case came before this Court on August 14, 2023

pursuant to the Motion for Summary Judgment filed by the

Defendant, The Public Park and Recreation Board of the City

of Scottsboro d/b/a Goose Pond Colony.

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"Upon consideration of the Motion, the pleadings, the

evidentiary submissions and briefs filed by the parties

(particularly the affidavit testimony of the Plaintiff, Karon

Patrick, and the deposition testimony of Defendant’s

maintenance supervisor, Glenn 'Junior' Summerford), the

Court is of the opinion that substantial disputes of material

fact exist such that Defendant's Motion is due to be denied in

its entirety; and therefore, Defendant's Motion for Summary

Judgment is hereby denied. And further, the Court questions,

based on certain disputed and undisputed facts, whether the

Defendant is entitled to any greater protection from liability

based on Alabama's Recreational Use Statutes."

On August 25, 2023, the Board filed a motion to reconsider. It

stated that, to the extent that the court's ruling was based on the issue

of profitability, it was attaching copies of the Board's meeting minutes

from 2007 through 2023. On September 8, 2023, the trial court denied

that motion to reconsider. The Board subsequently filed the present

petition for a writ of mandamus.

Standard of Review

" ' "While the general rule is that the denial of

a motion for summary judgment is not reviewable,

the exception is that the denial of a motion for

summary judgment grounded on a claim of

immunity is reviewable by petition for writ of

mandamus." Ex parte Rizk, 791 So. 2d 911, 912

(Ala. 2000). A writ of mandamus is an

extraordinary remedy available only when there

is: "(1) a clear legal right to the order sought; (2)

an imperative duty upon the respondent to

perform, accompanied by a refusal to do so; (3) the

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lack of another adequate remedy; and (4) the

properly invoked jurisdiction of the court." Ex

parte BOC Group, Inc., 823 So. 2d 1270, 1272 (Ala.

2001).'

"Ex parte Nall, 879 So. 2d 541, 543 (Ala. 2003). Also,

" 'whether review of the denial of a summary-

judgment motion is by a petition for a writ of

mandamus or by permissive appeal, the appellate

court's standard of review remains the same. If

there is a genuine issue as to any material fact on

the question whether the movant is entitled to

immunity, then the moving party is not entitled to

a summary judgment. Rule 56, Ala. R. Civ. P. In

determining whether there is a [genuine issue of]

material fact on the question whether the movant

is entitled to immunity, courts, both trial and

appellate, must view the record in the light most

favorable to the nonmoving party, accord the

nonmoving party all reasonable favorable

inferences from the evidence, and resolve all

reasonable doubts against the moving party,

considering only the evidence before the trial court

at the time it denied the motion for a summary

judgment. Ex parte Rizk, 791 So. 2d 911, 912 (Ala.

2000).'

"Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002).

" ' "When the movant makes a prima facie showing

that there is no genuine issue of material fact, the

burden shifts to the nonmovant to present

substantial evidence creating such an issue. Bass

v. SouthTrust Bank of Baldwin County, 538 So. 2d

794, 797-98 (Ala. 1989). Evidence is 'substantial'

if it is of 'such weight and quality that fair-minded

persons in the exercise of impartial judgment can

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reasonably infer the existence of the fact sought to

be proved.' Wright [v. Wright], 654 So. 2d [542,]

543 [(Ala. 1995)] (quoting West v. Founders Life

Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.

1989))." '

"Wilson v. Manning, 880 So. 2d 1101, 1102 (Ala. 2003)

(quoting Hobson v. American Cast Iron Pipe Co., 690 So. 2d

341, 344 (Ala. 1997))."

Ex parte City of Montgomery, 272 So. 3d 155, 159 (Ala. 2018).

Discussion

The following provisions of the recreational-use statutes and some

decisions discussing these provisions are relevant to our discussion of the

arguments raised in the Board's petition.

Section 35-15-1, Ala. Code 1975, provides:

"An owner, lessee, or occupant of premises owes no duty

of care to keep such premises safe for entry and use by others

for hunting, fishing, trapping, camping, water sports, hiking,

boating, sight-seeing, caving, climbing, rappelling, or other

recreational purposes or to give any warning of hazardous

conditions, use of structures or activities on such premises to

persons entering for the above-stated purposes, except as

provided in Section 35-15-3."

Section 35-15-2, Ala. Code 1975, provides:

"An owner, lessee, or occupant of premises who gives

permission to another to hunt, fish, trap, camp, hike, sight-

see, cave, climb, rappel, or engage in other sporting or

recreational activities upon such premises does not thereby

extend any assurance that the premises are safe for such

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purpose nor constitute the person to whom permission has

been granted the legal status of an invitee to whom a duty of

care is owed or assume responsibility for or incur liability for

any injury to person or property caused by an act of such

person to whom permission has been granted, except as

provided in Section 35-15-4."

Section 35-15-3, Ala. Code 1975, provides:

"[Article 1] does not limit the liability which otherwise

exists for wilful or malicious failure to guard or warn against

a dangerous condition, use, structure, or activity; or for injury

suffered in any case where permission to hunt, fish, trap,

camp, hike, cave, climb, rappel, or sight-see was granted for

commercial enterprise for profit; or for injury caused by acts

of persons to whom permission to hunt, fish, trap, camp, hike,

or sight-see was granted to third persons as to whom the

person granting permission, or the owner, lessee, or occupant

of the premises owed a duty to keep the premises safe or to

warn of danger."

Section 35-15-4, Ala. Code 1975, provides:

"Nothing in [Article 1] creates a duty of care or ground

of liability for injury to person or property."

Section 35-15-5, Ala. Code 1975, provides:

"Nothing in [Article 1] shall be construed as granting or

creating a right for any person to go on the lands of another

without permission of the landowner."

With regard to the recreational-use statutes, the legislature stated

the following:

"It is hereby declared that there is a need for outdoor

recreational areas in this state which are open for public use

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and enjoyment; that the use and maintenance of these areas

will provide beauty and openness for the benefit of the public

and also assist in preserving the health, safety, and welfare of

the population; that it is in the public interest to encourage

owners of land to make such areas available to the public for

non-commercial recreational purposes by limiting such

owners' liability towards persons entering thereon for such

purposes; that such limitation on liability would encourage

owners of land to allow non-commercial public recreational

use of land which would not otherwise be open to the public,

thereby reducing state expenditures needed to provide such

areas."

§ 35-15-20, Ala. Code 1975.

Section 35-15-21, Ala. Code 1975, sets forth the following

definitions:

"Unless the context thereof clearly indicates to the

contrary, as used in [Article 2] the following terms shall have

the following meanings:

"(1) Owner. Any public or private

organization of any character, including a

partnership, corporation, association, any

individual, or any federal, state or local political

subdivision or any agency of any of the foregoing

having a legal right of possession of outdoor

recreational land. For the purpose of [Article 2],

an employee or agent of the owner, but not an

independent contractor while conducting activities

upon the outdoor recreational land, is deemed to

be an owner.

"(2) Outdoor recreational land. Land and

water, as well as buildings, structures, machinery,

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and other such appurtenances used for or

susceptible of recreational use.

"(3) Recreational use or Recreational

purpose. Participation in or viewing of activities

including, but not limited to, hunting, fishing,

water sports, aerial sports, hiking, camping,

picnicking, winter sports, animal or vehicular

riding, or visiting, viewing or enjoying historical,

archeological, scenic, or scientific sites, and any

related activity.

"(4) Person. Any individual, regardless of

age, maturity, or experience.

"(5) Commercial recreational use. Any use of

land for the purpose of receiving consideration for

opening such land to recreational use where such

use or activity is profit-motivated. Consideration

does not include any benefits provided by law in

accordance with [Article 2], any other state or

federal law, or in the form of good will for

permitting recreational use as stated in [Article 2];

nor does consideration include a charge by the

landowner for maintenance fees where the

primary use of the land is for other than public

recreational purposes."

Section 35-15-22, Ala. Code 1975, provides:

"Except as specifically recognized by or provided in

[Article 2], an owner of outdoor recreational land who permits

non-commercial public recreational use of such land owes no

duty of care to inspect or keep such land safe for entry or use

by any person for any recreational purpose, or to give warning

of a dangerous condition, use, structure, or activity on such

land to persons entering for such purposes."

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Section 35-15-23, Ala. Code 1975, provides:

"Except as expressly provided in [Article 2], an owner of

outdoor recreational land who either invites or permits non-

commercial public recreational use of such land does not by

invitation or permission thereby:

"(1) Extend any assurance that the outdoor

recreational land is safe for any purpose;

"(2) Assume responsibility for or incur legal

liability for any injury to the person or property

owned or controlled by a person as a result of the

entry on or use of such land by such person for any

recreational purpose; or

"(3) Confer upon such person the legal status

of an invitee or licensee to whom a duty of care is

owed."

Section 35-15-24, Ala. Code 1975, provides, in part:

"(a) Nothing in [Article 2] limits in any way legal

liability which otherwise might exist when such owner has

actual knowledge:

"(1) That the outdoor recreational land is

being used for non-commercial recreational

purposes;

"(2) That a condition, use, structure, or

activity exists which involves an unreasonable risk

of death or serious bodily harm;

"(3) That the condition, use, structure, or

activity is not apparent to the person or persons

using the outdoor recreational land; and

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"(4) That having this knowledge, the owner

chooses not to guard or warn, in disregard of the

possible consequences.

"(b) The test set forth in subsection (a) of this section

shall exclude constructive knowledge by the owner as a basis

of liability and does not create a duty to inspect the outdoor

recreational land."

(Emphasis added.)

Regarding recreational-use statutes and their purpose and scope,

courts have stated as follows:

"[Section 35-15-1, Ala. Code 1975,] was enacted 'to

insure that landowners were not to be held to a standard of

due care toward persons upon their land with permission for

hunting, fishing and recreational purposes.' Wright v.

Alabama Power Co., 355 So. 2d 322, 324 (Sup. Ct. of Ala.

1978).

"Section 35-15-3 exempts three situations from the

limitation in 35-15-1, only one of which could possibly apply

here. That exemption is stated as follows:

" 'This chapter does not limit the liability which

otherwise exists for wilful or malicious failure to

guard or warn against a dangerous condition, use,

structure or activity....' "

Russell ex rel. Russell v. Tennessee Valley Auth., 564 F. Supp. 1043, 1047

(N.D. Ala. 1983).

"Sections 35-15-1 through 5, Code of Ala. (1975) defines

and limits the duties of a recreational land owner in relation

to persons using his premises for recreational purposes. Such

22

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an owner, whether public or private, owes no duty whatsoever

to provide safe premises to users. These statutory provisions

recognize only potential liability 'which otherwise exists for

willful or malicious failure to guard or warn against a

dangerous condition, use, structure or activity ...'. (emphasis

supplied).

"….

"Sections 35-15-20 through 28, Code of Ala. (1975) (1984

Supp.) applies to noncommercial public recreational

landowners …, and provides them with even tighter

limitations than §§ 35-15-1 through 5, as to their exposure to

liability to recreational users. This 1981 piece of legislation

recognizes a public policy in Alabama to encourage public

owners to allow the opening up and promotion of their

facilities without exposing themselves to law suits. This court

will not second guess this legislative intent."

Clark v. Tennessee Valley Auth., 606 F. Supp. 130, 131 (N.D. Ala. 1985).

"[Sections] 35-15-20 through 28, Code of Alabama (1975)

(1984 Supp.), further limits the liability of owners of land who

dedicate their property for non-commercial recreational use.

… These sections declare that the public policy of Alabama is

to encourage the donation of non-commercial recreational

property without exposing the owners of such property to

liability. As the Court stated in Clark[ v. Tennessee Valley

Auth., 606 F. Supp. 130,] 131 [(N.D. Ala. 1985)], this Court

will not question the clear expression of this legislative intent.

See, Jennett v. United States, 597 F. Supp. 110 (D. Conn.

1984). This Court finds, as did the Court in Clark, that

Articles 1 and 2 of Chapter 15 are to be read complimentary

to each other and that the provisions of Article 2 do not repeal

the provisions contained in Article 1."

Grice v. City of Dothan, 670 F. Supp. 318, 321 (M.D. Ala. 1987).

23

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Finally,

"[Sections 35-15-20 et seq.], passed by the legislature in

1975 and amended in 1981, limit the tort liability of a private

or public owner of land that opens its land for recreational use

by the public. That limitation on liability applies only if the

use of the land is not a commercial enterprise. Owens v.

Grant, 569 So. 2d 707, 710 (Ala. 1990); § 35-15-26. For the

purposes of this statute, the term 'owner' includes agents of

the owner. § 35-15-21(1). An exception to the limitation on

liability is contained in § 35-15-24. Under that section, a

landowner that opens its land for noncommercial, public

recreational use can be liable for injuries if the owner has

actual knowledge that (1) the land is being used for

noncommercial recreational purposes; (2) a condition, use,

structure, or activity that involves an unreasonable risk of

death or serious injury is present on the land; and (3) the

dangerous condition, use, structure, or activity is not

apparent to members of the public using the land; and if,

despite that actual knowledge, the landowner chooses not to

guard against injury or warn the public, in disregard of the

possible consequences. Section 35-15-24(a)(1)-(4). In order for

liability to be imposed under that section, it must be shown

that the landowner had actual knowledge of each of the

elements listed above and, with that actual knowledge, chose

not to guard or warn against the danger. Constructive

knowledge is not sufficient. Keenum v. City of Huntsville, 575

So. 2d 1075 (Ala. 1991); § 35-15-24(b)."

Martin ex rel. Martin v. City of Gadsden, 584 So. 2d 796, 797-98 (Ala.

1991) (final emphasis added).

The Board argues that the trial court erred in denying its motion

for a summary judgment based on the application of the recreational-use

statutes. Specifically, it contends, as it did below, that the lodge and the

24

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parking lot where Patrick fell fall within the definition of "outdoor

recreational land" set forth in § 35-15-23(2); that the lodge and the

parking lot are used for a recreational use or purpose as set forth in § 35-

15-21(3); and that the use of the lodge and the parking lot does not

constitute "commercial recreational use" as defined in § 35-15-21(5). In

the alternative, it contends, as it did below, that Patrick has not satisfied

her burden of establishing all four elements of the exception to the

liability protections provided by the recreational-use statutes that is set

forth in § 35-15-24(a).

Patrick argues that the trial court did not err in denying the Board's

motion for a summary judgment. Specifically, she contends that the

lodge and the parking lot are not "outdoor recreational land" as defined

in § 35-15-21(2); that use of the lodge and the parking lot does not

constitute "recreational use" or a "recreational purpose" as defined in §

35-15-21(3); and that use of the lodge and the parking lot constitutes

"commercial recreational use" as defined in § 35-15-21(5). In the

alternative, she contends that the Board would still be liable based on

the exception to the liability protections provided by the recreational-use

statutes that is set forth in § 35-15-24(a).

25

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We agree with the Board's arguments. Although Patrick focuses

solely on her specific use of the lodge on the date of the accident, it is clear

that the Board has the purpose of operating Goose Pond Colony,

including the lodge, for public, recreational use and that that purpose

specifically includes providing "public accommodation facilities,"

"cabins," "trailer sites," etc. Nothing in the recreational-use statutes

suggests that their liability protections are based on an individual's

personal reasons for using the property in question.

In Ex parte City of Millbrook, supra, the plaintiff and her husband

sued the City of Millbrook after the plaintiff fell from a sidewalk outside

the Millbrook Civic Center ("the civic center"). The City of Millbrook

moved for a summary judgment on the ground that it was entitled to

immunity pursuant to Article 2 of the recreational-use statutes. The trial

court entered an order denying the City of Millbrook's motion, and the

City of Millbrook subsequently filed a petition for a writ of mandamus in

this Court. In a plurality decision addressing the City of Millbrook's

argument that it was entitled to immunity pursuant to Article 2 of the

recreational-use statutes, this Court stated:

"The City argues that it has a clear legal right to relief

based on Article 2 of the recreational-use statutes. Article 2

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is titled 'Limitation of Liability for Non-Commercial Public

Recreational Use of Land' and provides:

" 'Except as specifically recognized by or provided

in this article, an owner of outdoor recreational

land who permits non-commercial public

recreational use of such land owes no duty of care

to inspect or keep such land safe for entry or use

by any person for any recreational purpose, or to

give warning of a dangerous condition, use,

structure, or activity on such land to persons

entering for such purposes.'

"§ 35-15-22, Ala. Code 1975. The City is entitled to this

immunity only if the civic center comes within the definition

of 'outdoor recreational land' in Article 2. 'Outdoor

recreational land' is defined in Article 2 as '[l]and and water,

as well as buildings, structures, machinery, and other such

appurtenances used for or susceptible of recreational use.' §

35-15-21(2), Ala. Code 1975.

"When determining the meaning of a statute, this Court

'looks to the plain meaning of the words as written by the

legislature.' DeKalb Cty. LP Gas Co. v. Suburban Gas, Inc.,

729 So. 2d 270, 275 (Ala. 1998). Under our plain-meaning

approach:

" ' " 'Words used in a statute must be given their

natural, plain, ordinary, and commonly

understood meaning, and where plain language is

used a court is bound to interpret that language to

mean exactly what it says. If the language of the

statute is unambiguous, then there is no room for

judicial construction and the clearly expressed

intent of the legislature must be given effect.' " '

"729 So. 2d at 275 (quoting Blue Cross & Blue Shield v.

Nielsen, 714 So. 2d 293, 296 (Ala. 1998), quoting in turn

27

SC-2023-0720

IMED Corp. v. Systems Eng'g Assocs., 602 So. 2d 344, 346

(Ala. 1992)). This approach is mandated by the separation-of-

powers principles enshrined in the Alabama Constitution. 'To

the end that the government of the State of Alabama may be

a government of laws and not of individuals, ... the judicial

branch may not exercise the legislative or executive power.'

Ala. Const. 1901, Art. III, § 42. Adhering to the plain meaning

of a statute ensures that this Court complies with its

constitutional mandate and discharges its duty of saying what

the law is without overstepping its role and legislating from

the bench. To stray from the plain meaning of a statute would

be to 'turn this Court into a legislative body, and doing that,

of course, would be utterly inconsistent with the doctrine of

separation of powers.' DeKalb Cty. LP Gas Co., 729 So. 2d at

276.

"Both the City and the Wrights argue their positions

based on the plain meaning of Article 2 of the recreational-use

statutes. The City emphasizes in its petition that the

statutory definition of 'outdoor recreational land' includes

both 'buildings' and 'structures,' § 35-15-21(2), and thus, it

argues, plainly includes the civic center. The Wrights counter

that the civic center is a stand-alone, indoor facility with no

connection to outdoor recreation and that Article 2 of the

recreational-use statutes is therefore plainly inapplicable.

Because fundamental principles of statutory interpretation

foreclose the City's reading, we conclude that the Wrights

have the better interpretation.

"Taking a plain-meaning approach to a contested

question of statutory interpretation is best understood as an

exercise in textualism. 'Textualism, in its purest form, begins

and ends with what the text says and fairly implies.' Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation

of Legal Texts 16 (Thomson/West 2012). Textualism

recognizes that '[a] text should not be construed strictly, and

it should not be construed leniently; it should be construed

reasonably, to contain all that it fairly means.' Antonin

28

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Scalia, A Matter of Interpretation 23 (Princeton University

Press 1997). 'Textualism ... tasks judges with discerning

(only) what an ordinary English speaker familiar with the

law's usages would have understood the statutory text to

mean at the time of its enactment.' Neil Gorsuch, The Case

for Textualism, A Republic, If You Can Keep It 128, 131

(Crown Forum 2019). When this Court interprets a statute,

it is charged with doing so fairly, giving full effect to the

statutory intent as represented in the words enacted by the

legislature -- no more and no less.

"A useful textualist tool for giving a full and fair reading

to the unambiguous definition of 'outdoor recreational land' in

Article 2 of the recreational-use statutes is the associated-

words canon of statutory interpretation, also known as the

doctrine of noscitur a sociis. Long recognized in Alabama law,

'[t]his doctrine provides that "where general and specific

words which are capable of an analogous meaning are

associated one with the other, they take color from each other,

so that the general words are restricted to a sense analogous

to that of the less general." ' Ex parte Emerald Mountain

Expressway Bridge, L.L.C., 856 So. 2d 834, 842-43 (Ala. 2003)

(quoting Winner v. Marion Cty. Comm'n, 415 So. 2d 1061,

1064 (Ala. 1982), and citing State v. Western Union Tel. Co.,

196 Ala. 570, 72 So. 99 (1916)). The canon has been

summarized this way: 'When several [words] ... are associated

in a context suggesting that the words have something in

common, they should be assigned a permissible meaning that

makes them similar.' Scalia & Garner, supra, at 195.

"In addition to the phrase 'land and water,' the statutory

definition of 'outdoor recreational land' includes a list of

associated nouns: 'buildings, structures, machinery, and other

such appurtenances used for or susceptible of recreational

use.' § 35-15-21(2) (emphasis added). The associated-words

canon counsels that the inclusion of the term 'other such

appurtenances' in this list of nouns means that the definition

29

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applies only to those buildings, structures, and machinery

that are also 'appurtenances.'

"The term 'appurtenance' is not further defined in the

recreational-use statutes, but its plain meaning in the context

of Article 2 can be quickly grasped by consulting

contemporary dictionaries. '[W]hen a term is not defined in a

statute, the commonly accepted definition of the term should

be applied.' Bean Dredging, L.L.C. v. Alabama Dep't of

Revenue, 855 So. 2d 513, 517 (Ala. 2003) (citing Republic Steel

Corp. v. Horn, 268 Ala. 279, 105 So. 2d 446, 447 (Ala. 1958)).

An 'appurtenance' is defined as 'an accessory or other item

associated with a particular activity or style of living,' The

New Oxford American Dictionary 76 (2d ed. 2005), 'a

subordinate part or adjunct ..., [an] accessory object[],'

Merriam-Webster's Collegiate Dictionary 61-62 (11th ed.

2003), and 'a contributory adjunct, an accessory.' The Oxford

English Dictionary 590 (2d ed. 1989). An accessory is 'an

object or device not essential in itself but adding to the beauty,

convenience, or effectiveness of something else.' Merriam-

Webster's Collegiate Dictionary 7 (11th ed. 2003). An edition

of Black's Law Dictionary published shortly before the

enactment of Article 2 provides a thorough definition of

'appurtenance' that helpfully synthesizes the subtleties

apparent from the foregoing definitions:

" 'That which belongs to something else; an

adjunct; an appendage. Something annexed to

another thing more worthy as principal, and which

passes as incident to it, as a right of way or other

easement to land; an outhouse, barn, garden, or

orchard to a house .... An article adapted to the use

of the property to which it is connected, and which

was intended to be a permanent accession to the

freehold.'

"Black's Law Dictionary 94 (5th ed. 1979).

30

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"When the associated-words canon is applied while

bearing in mind these definitions of 'appurtenance,' the plain

meaning of a 'building' in the context of Article 2 of the

recreational-use statutes is clear: a 'building' is 'outdoor

recreational land' under § 35-15-21(2) only if it is adjunct to

land or water and it facilitates the recreational use of that

land or water.

"The City has not established that the civic center is the

kind of building included in the definition of 'outdoor

recreational land.' The City's petition includes no discussion

of the relationship of the civic center to the surrounding land

or how the civic center facilitates the recreational use of that

land. Although the civic center is a 'building' in the general

sense of the word, the City does not establish in its petition

that the civic center is an appurtenance to land or water

covered by Article 2 of the recreational-use statutes. The City

thus lacks a clear legal right to a summary judgment in its

favor on the basis of the immunity provided in Article 2 of the

recreational-use statutes, and its petition is due to be denied."

Ex parte City of Millbrook, 304 So. 3d at 204-07 (footnote omitted).

Unlike the building in Ex parte City of Millbrook, the lodge does not

stand alone because it is within Goose Pond Colony, a public park, and it

does not host only indoor activities. Instead, the lodge and the parking

lot constitute outdoor recreational land because they are adjunct to both

land and water, and they facilitate the continued use of both by providing

access to walking trails and a dock for fishing and other water activities

because they are in the middle of (and part of) a public park and are

surrounded by Lake Guntersville on three sides, and enable patrons to

31

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access walking trails and a dock.

Moreover, the fact that the lodge charges money for

accommodations does not exclude it from the liability protections

provided by the recreational-use statutes. With regard to the parties'

competing arguments as to whether Goose Pond Colony was used for

commercial or noncommercial recreational purposes, we note the

following:

"At trial, and on appeal, Tyson has argued that this

statutory limitation on liability does not apply because, he

says, Noccalula Falls Park is a commercial enterprise. He

argues that because the City charges admission fees to some

users of the park and because there are 13 income-generating

attractions or concessions at the park, it is a commercial

enterprise and therefore falls outside the protection extended

by the statute. The definition of 'commercial recreational use'

is found at § 35-15-21(5):

" 'Commercial Recreational Use. Any use of

land for the purpose of receiving consideration for

opening such land to recreational use where such

use or activity is profit-motivated....'

"(Emphasis added.) The City produced witnesses who

testified that although there are charges for some of the

attractions at the park, the park has consistently been

operated at a significant loss and has never been envisioned

as a profit-producing asset for the City.

"In Owens[v. Grant, 569 So. 2d 707 (Ala. 1990)], this

Court was asked to interpret the phrase 'profit-motivated.' In

that case, we held that the fact that entry fees were charged

32

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by the landowner did not necessarily mean that the use of the

land was 'profit-motivated.' 569 So. 2d at 711-12. Instead of

adopting a rigid definition of that phrase, this Court decided

that the question of whether a landowner intends to derive a

profit from the use of its land, thus making it a commercial

enterprise, must be decided on a case-by-case basis and is

properly within the province of the jury. Id."

Martin, 584 So. 2d at 798 (bold typeface in original).

In Owens v. Grant, 569 So. 2d 707 (Ala. 1990), this Court reasoned

as follows:

"Owens argues, among other things, that the trial court

erred, at least in refusing to instruct the jury concerning the

fact questions regarding whether the activity at Big Foot Lake

was 'profit motivated.' We agree with Owens's argument that

the court should have submitted to the jury the fact questions

regarding whether granting to the public the right to enter his

property for recreational purposes for a fee constituted the

operation of a 'commercial enterprise for profit' within the

meaning of the statute.

"Although Alabama's recreational use statute has been

in effect since 1975, there have been few cases interpreting it.

The key to this case lies in the interpretation of the term

'profit-motivated,' which is contained in § 35-15-21(5). No

case law in Alabama has construed this particular portion of

the statute; therefore, we must determine what the

legislature intended by using this language. To do so, we

must look to the history and public policy behind the statute.

"The Alabama statute, passed in 1975, and later

amended in 1981, in large part, parallels a model act

promulgated over 25 years ago by the Council of State

Governments and entitled 'Public recreation on private lands:

limitations on liability.'

33

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"The relevant portions of the model act are as follows:

" 'Section 4. Except as specifically recognized

by or provided in Section 6 of this act, an owner of

land who either directly or indirectly invites or

permits without charge any person to use such

property for recreational purposes does not

thereby:

" '(a) Extend any assurance that

the premises are safe for any purpose.

" '(b) Confer upon such person the

legal status of an invitee or licensee to

whom a duty of care is owed.

" '(c) Assume responsibility for or

incur liability for any injury to person

or property caused by an act or

omission on such premises.'

"24 Suggested State Legislation 150 (Council of State

Governments, 1965) (emphasis added).

"Currently, 43 states have adopted the model act to

some extent.

"Generally, the purpose of recreational use legislation,

as expressed in the preambles of many of the statutes, is to

encourage owners of private lands to make their land

available to the public for recreational purposes. The concept

is that such legislation provides a type of 'quid pro quo'

whereby a landowner receives immunity from lawsuits in

exchange for opening his land to the public. The preamble in

Alabama's recreational statutes contains the purpose behind

the adoption of these statutes. It reads:

34

SC-2023-0720

" 'It is hereby declared that there is a need for

outdoor recreational areas in this state which are

open for public use and enjoyment; that the use

and maintenance of these areas will provide

beauty and openness for the benefit of the public

and also assist in preserving the health, safety,

and welfare of the population; that it is in the

public interest to encourage owners of land to

make such areas available to the public for non-

commercial recreational purposes by limiting such

owners' liability towards persons entering thereon

for such purposes; that such limitation on liability

would encourage owners of land to allow non-

commercial public recreational use of land which

would not otherwise be open to the public, thereby

reducing state expenditures needed to provide

such areas.'

"Section 35-15-20 (Supp.1982).

"While a majority of the other states have adopted the

model statute verbatim and therefore do not grant immunity

from suit if the landowner opens his land for a 'charge' (see

model statute, § 4), Alabama and Louisiana did not adopt the

model act. Alabama and Louisiana deny recovery only if the

activity is 'profit motivated.' Because of the similarity

between the Alabama and Louisiana statutes, and in view of

the fact that Louisiana has addressed the same question we

have before us, we look to the law of Louisiana for guidance.

"The Louisiana statute reads, in relevant part, as

follows:

" 'B. (1) Except for willful or malicious failure

to warn against a dangerous condition, use,

structure, or activity, an owner of land, except an

owner of commercial recreational developments or

facilities, who permits with or without charge any

35

SC-2023-0720

person to use his land for recreational purposes as

herein defined does not thereby:

" '(a) Extend any assurance that the premises

are safe for purposes.

" '(b) Constitute such person the legal status

of an invitee or licensee to whom a duty of care is

owed.

" '(c) Incur liability for any injury to person or

property incurred by such person.'

"La. Rev. Stat. Ann. § 9:2795 (West 1975) (emphasis added).

"The Louisiana Court of Appeals resolved the

ambiguities in the phrase 'commercial recreational

developments' and held that within the intendment of the

statute, a 'commercial recreational development' is one that is

'run for profit.' Thomas v. Jeane, 411 So. 2d 744 (La. App.

1982); Pratt v. State, 408 So. 2d 336 (La. App. 1982). In both

of those cases the plaintiff paid a fee to enter the recreational

area. Acknowledging this, the court specifically held that

charging fees would not, in and of itself, render an operation

commercial: '[P]rofit as a primary objective of the venture

would be essential to render it commercial.' 411 So. 2d at 747;

408 So. 2d at 342.

"Other states define 'charge' or related terms from a

negative perspective. For example, Wisconsin's statute

provides:

" ' "Valuable consideration" does not include

contributions to the sound management and

husbandry of natural resources of the state

resulting directly from recreational activity,

payments to landowners either in money or in

kind, if the total payments do not have an

36

SC-2023-0720

aggregate value in excess of $150 annually, or

those entrance fees paid to the state ...'

"Wis. Stat. § 29.68 (1979).

"Wisconsin is the only state, insofar as our research

shows, that specifies a certain dollar amount to meet the

consideration requirement.

"While the Alabama statute generally parallels the

model act, it clearly embraces a different approach when a fee

is charged, as in this case. It does not specifically require a

gratuitous entry, as the model statute does; in fact, the

legislature specified that charging a 'maintenance fee' would

not exclude a landowner from the protection of the statute. §

35-15-21(5). Federal courts in Alabama that have interpreted

Alabama's statute have held that the statutory immunity

applied, regardless of whether an admission fee was charged

or not. George v. United States, 735 F. Supp. 1524 (M.D. Ala.

1990); Clark v. Tennessee Valley Authority, 606 F. Supp. 130

(N.D. Ala. 1985); and Russell v. Tennessee Valley Authority,

564 F. Supp. 1043 (N.D. Ala. 1983).

"Alabama's statute does not follow the Louisiana statute

in specifying that the charging of fees does not render the

facility a commercial venture, see La. Rev. Stat. Ann. § 9:2795

(1975), and our legislature did not specify a dollar amount

that would necessarily constitute a commercial use, as the

Wisconsin legislature did, but rather our legislature used the

term 'profit-motivated.' What did the legislature intend by

adopting the term 'profit-motivated'?

"In answering this question, we are aided by a decision

of this Court written by Chief Justice Brickell interpreting the

phrase 'carrying on a business for profit,' which was contained

in a legislative enactment. In Weil v. State, 52 Ala. 19, 21

(1875), this Court stated:

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" 'The true inquiry is, and one which a jury will

seldom fail correctly to solve, what was the intent

of the party? Was it to derive a profit, or the means

of livelihood from retailing, or from any of the

other occupations mentioned in the statute? If it

was, he is guilty; if it was not, he should not be

convicted. Whether actual profit is derived from

the acts imputed to the defendant, and which are

supposed to be evidence of his having engaged in,

or carried on a business, is not a material inquiry.

There is no business which may not be so

conducted as not to yield a profit. The inquiry is,

was it the purpose to derive profit?'

"The application of the recreational use statute cannot

be decided simplistically on the basis of whether the use of the

property was totally gratuitous. In view of the history of the

statute and its prior interpretation, we cannot accept the

appellee's argument that, as a matter of law, the statute does

not apply. If, after a trial, the factfinder determines that the

appellant intended to derive a profit from the recreational use

of the lake, then the recreational use statute would not protect

him. If, however, the factfinder determines that he did not

intend to derive a profit, then the immunity provisions of the

statute would apply."

569 So. 2d at 710-12.

The Board was incorporated pursuant to Act No. 218, Ala. Acts

1967, "for the specific purpose of acquiring a project for a public park

including public accommodation facilities" and "for the benefit of the

public." Also, the title to Act No. 218 states that the act authorizes the

creation of only a "non-profit" corporation and specifically states that

38

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"such corporations shall not be authorized to operate as a commercial

enterprise." See also Opinion of the Justices No. 188, 280 Ala. 692, 694,

198 So. 2d 269, 271 (1967) (quoting House Bill No. 217, on which Act No.

218 was apparently based)) (emphasis added). The City expressly used

Act No. 218 to incorporate the Board, thus placing these same limits on

the Board. Further, § 15 of Act No. 218 authorizing the existence of such

"non-profit" corporations -- such as the Board -- also expressly allows such

entities to make "net earnings," so long as they are "used to pay the cost

of extensions and improvements to any of its projects." Finally, the Board

produced sufficient evidence, via the affidavit testimony of its general

manager, Lyle Sosebee, that it uses its net earnings from Goose Pond

Colony only for maintenance and improvements of its projects. Sosebee

testified that "Goose Pond Colony is a not for profit entity, and operates

for the benefit of the public," and that "[w]hile Goose Pond charges fees

for use of its facilities, said fees are used for improvements and

maintenance of the park." Therefore, the Board clearly established that

the lodge, which is part of Goose Pond Colony, is not profit-motivated and

is not used for commercial recreational purposes so that the recreational-

use statutes would not apply.

39

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The Board also argues that the exception to the liability protections

provided by the recreational-use statutes set forth in § 35-15-24 does not

apply in this case. Specifically, it contends that Patrick did not present

substantial evidence establishing that it had actual knowledge of the

existence of "a condition … which involves an unreasonable risk of death

or serious bodily harm." § 35-15-24(a)(2). In this case, Patrick had the

burden of "present[ing] substantial evidence of each element to prove

that the exception … applies." Ex parte City of Guntersville, 238 So. 3d

1243, 1247 (Ala. 2017).

It is undisputed that the Board had actual knowledge of the

existence of the dip in the parking lot. However, Patrick produced no

evidence, much less substantial evidence, indicating that the Board had

actual knowledge that the dip presented an "unreasonable risk of death

or serious bodily harm." § 35-15-24(a)(2). Although Summerford testified

that he had been personally aware of the dip in the parking lot for

approximately 12 years, he also testified that he was not aware of any

previous trip-and-fall accidents that had occurred in the parking lot.

Additionally, Patrick admitted that she had navigated the parking lot

earlier that day without any injury. Based on the foregoing, Patrick did

40

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not present substantial evidence indicating that the Board had actual

knowledge before Patrick's accident that the dip in the parking lot posed

an "unreasonable risk of death or serious bodily harm." § 35-15-24(a)(2).

Accordingly, Patrick failed to present substantial evidence establishing

that the exception in § 35-15-24 applies in this case.

Conclusion

For the above-stated reasons, the Board is entitled to immunity

from Patrick's claims against it pursuant to Alabama's recreational-use

statutes. Therefore, we grant the petition for a writ of mandamus and

direct the trial court to vacate its August 22, 2023, order denying the

Board's motion for a summary judgment and to enter an order granting

its motion for a summary judgment as to Patrick's claims against it.

PETITION GRANTED; WRIT ISSUED.

Parker, C.J., and Shaw, Wise, Bryan, Mendheim, Stewart, Mitchell,

and Cook, JJ., concur.

Sellers, J., concurs specially, with opinion.

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SELLERS, Justice (concurring specially).

I concur with the main opinion holding that The Public Parks and

Recreation Board of the City of Scottsboro is entitled to a writ of

mandamus directing the Jackson Circuit Court to enter a summary

judgment in its favor based on Alabama's recreational-use statutes, Ala.

Code 1975, §§ 35-15-1 through -5 ("Article 1") and §§ 35-15-20 through -

28 ("Article 2"). I write specially to discuss the "wilful or malicious"

language contained in Article 1 and, specifically, its omission from the

language contained in Article 2.

Article 1 of the recreational-use statutes, enacted in 1965, defines

and limits the duties of an owner of land in relation to persons using the

owner's land for recreational purposes. Section 35-15-3, Ala. Code 1975,

provides that an owner of public or private land used for certain

recreational purposes owes no duty to users of the land except for injury

caused by a "wilful or malicious failure to guard or warn against a

dangerous condition, use, structure, or activity."

Article 2 of the recreational-use statutes, enacted in 1981, applies

specifically to owners of noncommercial, public land used for recreational

purposes and it provides those owners with even greater protections than

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Article 1. See Ala. Code 1975, § 35-15-22 (stating, in relevant part, that

an owner of outdoor recreational land "owes no duty of care to inspect or

keep such land safe for entry or use by any person for any recreational

purpose, or to give warning of a dangerous condition, use, structure, or

activity on such land to persons entering for such persons") and § 35-15-

23 (stating, in relevant part, that an owner of outdoor recreational land

does not (1) "[e]xtend any assurance that the outdoor recreational land is

safe for any purpose"; (2) "[a]ssume responsibility for or incur legal

liability for any injury … as a result of the entry on or use of such land

by such person for any recreational purpose"; or (3) "[c]onfer upon such

person the legal status of an invitee or licensee to whom a duty of care is

owed"). Relevant here, § 35-15-24, Ala. Code 1975, carves out an

exception to the liability protections provided in § 35-15-22 and § 35-15-

23. Section 35-15-24 states that an owner of land is not shielded from

liability when a condition of the land involves an "unreasonable risk of

death or serious bodily harm," § 35-15-24(a)(2), and, having such

knowledge, the owner "chooses not to guard or warn [of the condition], in

disregard of the possible consequences." § 35-15-24(a)(4). In my opinion,

Articles 1 and 2 of the recreational-use statutes should be construed

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together such that the "wilful or malicious" requirement of § 35-15-3 in

Article 1 applies equally to § 35-15-24 in Article 2. Thus, the exception

to liability found in § 35-15-24 can be satisfied only when an owner of

land willfully or maliciously fails to warn or guard against a known

condition of the land that involves an unreasonable risk of death or

serious bodily harm. See Grice v. City of Dothan, 670 F. Supp. 318, 321

(M.D. Ala. 1987) (noting that Articles 1 and 2 of the recreational use

statutes "are to be read complimentary to each other"); see also Clark v.

Tennessee Valley Auth., 606 F. Supp. 130, 131 (1985) (noting that the

statutes in Article 2, which were enacted in 1981, provide owners of

noncommercial public recreational land with "even tighter limitations"

than the statues in Article 1 and that the "1981 piece of legislation

recognizes a public policy in Alabama to encourage public owners to allow

the opening up and promotion of their facilities without exposing

themselves to law suits").

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