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If the Atlanta Committee for the Olympic Games granted free admission to Centennial Olympic Park for commercial purposes, then it might be liable for the injuries people suffered when a bomb exploded there. The Georgia Supreme Court ruled last week that it’s up to a jury to decide whether the park was a space for recreation or a space for commercial activity. And the high court noted that the jury is to consider the “totality” of the circumstances under which the public used the park when a bomb exploded there during the 1996 Olympics. Atlanta Committee for the Olympic Games v. Hawthorne, No. S03G1491, and Atlanta Committee for the Olympic Games v. Anderson, No. S03G1492 (Sup. Ct. Ga. June 28, 2004), collectively known as Anderson III. “Was it commercial or recreational?” is a question that could be asked of the entire Atlanta Olympics, and it’s one ACOG and scores of plaintiffs have disputed for seven years. But this is no exercise in legal rhetoric. The consequences are profound for defendants — reaching potentially hundreds of millions of dollars in damages. The decision also has implications for street festivals and other instances in which private property holders allow the public free admission to their property. Last week’s ruling stems from a spate of suits in the wake of the Centennial Olympic Park bombing, which killed one woman, Alice S. Hawthorne, and injured more than 100. Three times, however, Fulton State Court Senior Judge Charles L. Carnes ruled in favor of ACOG, granting summary judgment and saying that the Recreational Property Act shielded ACOG from liability for the victims’ damages and injuries. Before last week’s ruling, the case had been once to the Georgia Supreme Court and once to the Georgia Court of Appeals. In its first ruling, the state Supreme Court devised a balancing test, requiring an assessment of the park’s social and commercial use. Anderson v. Atlanta Committee for the Olympic Games, 273 Ga. 113 (2000), known as Anderson I. Last week’s opinion clears the way for a trial — and possibly several trials, as each of 46 plaintiffs decides how to bring suit. The plaintiffs are represented by a number of well-known members of the plaintiffs’ bar, including the lawyer for the plaintiffs in this case, James N. Sadd of Slappey & Sadd. Lawyers for the other plaintiffs include Robin N. Loeb of Garland, Samuel & Loeb; Bauer & Deitch’s Gilbert H. Deitch; Hardy Gregory Jr. of Gregory, Christy, Maniklal & Dennis; and Willie E. Gary of Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando in Stuart, Fla. The plaintiffs’ various suits include complaints for injuries, wrongful death and loss of consortium. A FACTUAL DISPUTE ACOG’s lawyer, T. Ryan Mock Jr., said he believes the court mistakenly converted the recreational versus commercial portion of the suit into a factual dispute. “It’s rightly a question of law and a question of policy,” he said. In turn, plaintiffs lawyer Sadd said the court recognized that the facts surrounding the park’s primary purpose were in dispute, and rightly gave it to the proper entity for sorting out facts — a jury, not a judge. “That sort of factual decision should be in the hands of a jury,” he said. “Any time there is a factual dispute, it’s better for a jury to decide.” Writing for the unanimous court, Justice Carol W. Hunstein found once again that the trial court has more work to do on the issue of the RPA — but this time Carnes should have the help of a jury. The high court found that determining whether the RPA “applies to limit the liability of the owner of a certain property � is a question of law for the trial court.” However, it also found that because Centennial Olympic Park had commercial and recreational aspects tightly intertwined, it is up to a jury to sort out whether the purpose of free public admission was purely for recreation, or to make a profit. The limit of ACOG’s liability, therefore, is for all practical purposes in the hands of a jury. According to Mock and Sadd, ACOG’s insurance policy provides applicable coverage of up to $100 million. A judge will decide whether the RPA applies, but he will have to rely on facts as assessed by the jury. The high court relied on Lau’s Corp. v. Haskins, 261 Ga. 491 (1991), which found that summary judgment on this issue is only appropriate when “reasonable minds cannot differ” about the location’s primary function. And reasonable minds do differ on this issue. A lot. DIFFERENT VIEWS ON PARK’S PURPOSE ACOG points to Billy Payne’s original intention for the park — as a gathering place for the city’s international visitors and a gift to the city when the Olympics were over. “The park was always going to cost more money than it made,” Mock said. However, the plaintiffs noted that the site was rife with commercialism. There was a mammoth food court. There was an AT&T communications tent. There was a Swatch store. There was a sports bar run by Anheuser-Busch. And there was ACOG’s own Super Store, which sold Olympic souvenirs. There was, Sadd said, at least some commercial aspect to the park. But corporate sponsorship and the presence of vendors don’t in themselves determine the park’s primary function. The balancing test the high court set out in Anderson I envisions an evaluation that considers, in essence, whether the vending was there to enhance recreation, or the recreation was staged for the sake of making a profit. The balancing test was adopted “to assist the fact-finder in assessing in mixed-use properties the owner’s true purpose for making the locus delecti available free of charge to the public,” Hunstein wrote. The jury, the high court found, must examine “all relevant social and economic aspects of the activity.” ACOG claims that it lost between $8 million and $22 million on the operation of the park, Mock said. Any vending there was allowed only to defray the committee’s cost for free admission to the public, he added. “If the recreation was there for the sake of the vending, then it was the worst business deal ACOG ever made,” he said. But that’s for a jury, and not for a judge, to decide, following an appeals court decision in 2000. Anderson v. Atlanta Committee for the Olympic Games, 261 Ga. App. 895 (2003), known as Anderson II. “The pressure is off Judge Carnes now,” Sadd said. The prospect of having a jury trial to determine whether ACOG has shelter under RPA is proper under the law, Sadd added. “The RPA never automatically applied to street festivals or to anything else,” he said. In the Court of Appeals case, known as Anderson II, the court found that the jury had issues of fact to sort out, and it sent the case back to Carnes on remand. Presiding Judge Edward H. Johnson wrote for the unanimous panel, which included Frank M. Eldridge and Charles B. Mikell Jr. “On remand, there are two questions that must be answered. The first is a question of fact to be resolved by a jury, and the second is a question of law to be resolved by the court. The question of fact to be resolved by a jury is whether the nature of the Park, at the time of the explosion, was commercial or recreational. After a jury answers that question, the question of law to be resolved by the court is whether the Act applies to the Park and thereby insulates ACOG from liability,” he wrote. BEFORE, DURING AND AFTER Hunstein wrote that the Court of Appeals had part of the issue wrong. “We do not agree with the Court of Appeals that it is appropriate under the facts in this case to limit the jury’s consideration to the ‘time of the explosion,’” she wrote. Rather, Hunstein wrote, the high court agrees with ACOG that the jury may consider evidence of the park’s use before, during and after the Olympics, as long as that evidence helps the jury determine the reason ACOG allowed the public into the park for free during the Olympics — and especially on the night of the bombing. Mock said leaving that role to a jury could expose ACOG to scores of separate complaints — in some of which jurors will find ACOG was protected by the RPA and in others of which the jury will find ACOG is not protected. That’s why the finding should have been left to a judge on summary judgment, he said. “The cost of litigation alone can bankrupt a litigant,” Mock said. Sadd said he and his co-counsel have considered splitting his 37 plaintiffs into groups — or even into separate suits. But he hasn’t made a decision on that yet. “It doesn’t take creative legal arguments to press this case,” he said. “The merits are very strong.” The only defendant the ruling doesn’t affect is Eric R. Rudolph, who is charged with the park bombing. Rudolph was arrested in North Carolina last May after evading a federal manhunt for five years. Earlier this month, a federal judge postponed until next spring Rudolph’s criminal trial for charges of bombing an abortion clinic in Alabama.

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