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The Georgia Supreme Court has agreed to hear an appeal by Atlanta Olympic organizers in their effort to avoid liability for the death and injuries caused by the 1996 bombing of Centennial Olympic Park. The court on Monday split 4-3 on whether to take up the case brought by the Atlanta Committee for the Olympic Games, which is fighting two suits brought by dozens of people injured in the bombing and John Hawthorne, whose wife, Alice Stubbs Hawthorne, was killed. The cases have seesawed between Fulton County State Court and the Georgia Court of Appeals for five years as lawyers have argued over whether the park’s purpose was commercial or purely recreational. If the courts determine that the park was purely recreational, the state Recreational Property Act would immunize ACOG from the suits. In 1999, Senior Judge Charles L. Carnes said ACOG was covered by the 1965 property act, which protects owners who make their private or public property available for recreational use to the public free of charge. Carnes’ decision went straight to the state Supreme Court because the plaintiffs challenged the constitutionality of the property act. In 2000, the high court upheld the law but adopted from a Wisconsin appeals court a balancing test to decide whether park activities were “recreational.” The Wisconsin test instructs courts to examine “the intrinsic nature of the activity, the type of service or commodity offered to the public, and the activity’s purpose and consequence.” Using that test, Carnes again ruled for ACOG, only to be reversed this past June by the Georgia Court of Appeals. Presiding Judge Edward H. Johnson acknowledged that Centennial Olympic Park had many “intrinsically recreational” aspects. But corporate pavilions, the Bud World sports bar, a food court and an Olympic souvenir store were “intrinsically commercial,” he added. “They not only generated millions of dollars in actual revenue, but also gained untold advertising and promotional value due to the conspicuous presence in the Park,” wrote Johnson, who was joined by Judges Frank M. Eldridge and Charles B. Mikell Jr. The panel sent the cases back to Carnes to hold a jury trial on whether “the nature of the Park, at the time of the explosion, was commercial or recreational.” Anderson v. Atlanta Committee for the Olympic Games and Hawthorne v. Atlanta Committee for the Olympic Games, A03A0428 and A03A0429. ACOG petitioned the Supreme Court to review the cases, and on Monday, Chief Justice Norman S. Fletcher, Presiding Justice Leah Ward Sears and Justices Robert Benham and P. Harris Hines agreed to do so. Justices Carol W. Hunstein, George H. Carley and Hugh P. Thompson dissented from the grant of certiorari. The court posed two questions for the parties: whether trial judges or juries should decide if an activity is recreational and whether the balancing test should be limited to the facts as they existed at the moment of injury. One of ACOG’s lawyers, T. Ryan Mock Jr. of Hawkins & Parnell, said the trial judge should decide whether the activity was recreational. He explained that his side has presented evidence showing that the park was recreational, while the other side has presented evidence showing that the park was commercial. But, Mock said, “There were no disputed questions of fact,” so the job of weighing those facts should belong to the judge. As for the second question, Mock said the appeals court incorrectly limited the balancing test to the moment of the explosion, which occurred in the early morning of July 27, 1996. The plaintiffs’ lawyers, James N. Sadd, of Slappey & Sadd, and Gilbert H. Deitch, of Bauer & Deitch, took an optimistic view of the case returning to the Supreme Court. “We don’t see it as terrible news,” said Sadd, noting that three of the justices would have let the appeals court decision stand. Sadd added that whether a particular activity was recreational or commercial was a dispute of fact, meaning a jury should make the determination. Considering they filed their cases in 1997, both Sadd and Deitch said they were surprised and a little frustrated they have yet to go before a jury. “Our hats are off to defense counsel to have gotten this far on the Recreational Property Act,” said Sadd. Deitch added that the Supreme Court would have an opportunity to clarify the law for future cases. “It’s a tough issue — a balancing test for a mixed-use facility,” he said.

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