# 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).

> Supreme Court of Alabama · December 20, 2024

URL: https://www.frixlaw.com/law-library/cases/10764809

## Case

- **Court:** Supreme Court of Alabama
- **Decided:** December 20, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10764809

## How later opinions describe it (automated extraction)

- noting that Articles 1 and 2 of the recreational use statutes "are to be read complimentary to each other"

## Opinion text

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
26
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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
SC-2023-0720

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
SC-2023-0720

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
SC-2023-0720

"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
SC-2023-0720

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
SC-2023-0720

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
SC-2023-0720

"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:

37
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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
SC-2023-0720

"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

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10764809. Public record. Not legal advice.