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Cole v. South Carolina Electric & Gas1/31/2005
their liability toward persons entering thereon for such purposes.
§ 27-3-20. Definitions.
(c) "Recreational purpose" includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, summer and winter sports and viewing or enjoying historical, archaeological, scenic, or scientific sites.
(d) "Charge" means the admission price or fee asked in return for invitation or permission to enter or go upon the land. § 27-3-40. Effect of permission to use property for recreational purposes.
Except as specifically recognized by or provided in § 27-3-60, an owner of land who permits without charge any person having sought such permission 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 of omission of such persons.
§ 27-3-60. Certain liability not limited.
Nothing in this chapter limits in any way any liability which otherwise exists:
(a) For grossly negligent, willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.
(b) For injury suffered in any case where the owner of land charges persons who enter or go on the land for the recreational use thereof. . . .
(emphasis added).
It is undisputed that on the day George drowned, the driver of the car in which George was a passenger paid a three-dollar parking fee at SCE&G's recreational site on Lake Murray. The fee is a per-vehicle charge and is not related to the number of visitors in the vehicle. People who enter on foot or by bicycle are charged no fee. The trial court ruled that the parking fee was not a "charge" within the meaning of the RUS and therefore SCE&G was entitled to the protection of the RUS.
Cole contends the parking fee is a "charge" that fits within the exception to landowner immunity stated in § 27-3-60(b). However, subsection (d) specifically defines "charge" as "the admission price or fee asked in return for invitation or permission to enter or go upon the land." (emphasis added.) This definition limits a "charge" to a general charge for admission to the property. Courts interpreting this phrase have consistently held that a parking fee does not qualify as a "charge" because not everyone must pay it for admission to the property. See Stone Mountain Mem. Assoc. v. Herrington, 171 S.E.2d 521 (Ga. 1969); City of Louisville v. Silcox, 977 S.W.2d 254 (Ky. App. 1998); Hanley v. State, 837 A.2d 707 (R.I. 2003); see generally Moss v. Dep't of Nat. Resources, 404 N.E.2d 742 (Ohio 1980) (admission fee is a charge necessary to utilize the overall benefits of a recreational area). We concur in this view and conclude a parking fee does not fit within the statutory definition of "charge." The trial court therefore properly held SCE&G is entitled to immunity for simple negligence under the RUS.
SCE&G's Appeal
1. Burden of Proof on Assumption of Risk
The trial judge declined to charge that SCE&G had the burden of proving its affirmative defense of assumption of the risk and instead charged generally that SCE&G had the burden of proving the plaintiff's "fault" for purposes of comparative negligence and that the jury should "consider the defenses" set forth by
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