Opinion
65008.
DECIDED JANUARY 12, 1983.
Action for damages. DeKalb Superior Court. Before Judge Peeler.
Morton P. Sherzer, for appellants.
Michael J. Bowers, Attorney General, Royce F. Morris, Daniel M. Formby, Assistant Attorneys General, for appellee.
This is a joint action involving a husband and wife seeking damages on account of the personal injuries suffered by the wife while bicycling on a Stone Mountain Park trail. They allege same to be unsafe and dangerous, and Stone Mountain Memorial Association, the defendant herein, knew or should have known that the trial was unsafe and dangerous. To all intents and purposes this case is virtually the same on its facts as Stone Mtn. Memorial Assn. v. Herrington, 225 Ga. 746 ( 171 S.E.2d 521), wherein the Supreme Court reversed this court which had reversed the trial court in granting summary judgment in favor of the Stone Mountain Memorial Association. See Herrington v. Stone Mtn. Memorial Assn., 119 Ga. App. 658 ( 168 S.E.2d 633), thereafter conforming to the opinion and judgment of the Supreme Court, s.c., 121 Ga. App. 20 ( 172 S.E.2d 434). In the case sub judice, the trial court sustained defendant's motion for summary judgment basing same in substance upon evidence that no fee is charged for the recreational use of defendant's land, that is, for the invitation or permission of the owner to go upon the land. See Code Ann. § 105-404 (Ga. L. 1965, p. 476) (now OCGA § 51-3-21, effective November 1, 1982). Plaintiffs then filed a motion for new trial. The plaintiffs appeal the denial of the motion for new trial. Held:
Notwithstanding any questions involved in the denial of the motion for new trial with reference to representation by counsel and a motion for continuance, among other things, as shown therein, the evidence demanded a finding in favor of the Stone Mountain Memorial Association based upon the case of Stone Mtn. Memorial Assn. v. Herrington, 225 Ga. 746, 748-749 (2) (3) (4), supra. As the trial court properly granted summary judgment in favor of the defendant any ruling thereafter was controlled by the decision of the Supreme Court in the Herrington case. See Coker v. City of Atlanta, 186 Ga. 473 (1), 475 ( 198 S.E. 74); Hill v. Rivers, 200 Ga. 354, 356 ( 37 S.E.2d 386); Lampkin v. Edwards, 222 Ga. 288, 289 (1) ( 149 S.E.2d 708).
Judgment affirmed. Banke and Birdsong, JJ., concur.