Gary is riding his bike along a road next to the woods when a tree branch suddenly falls and injures him. It turns out that the tree is growing in a park that is government-owned property. Does Gary have a claim against the government for his injuries? The answer to this question is controlled by Government Code Section 831.2.
First enacted in 1963, the purpose of Section 831.2 (commonly known as the "natural condition immunity" defense) is "to ensure that public entities will not prohibit public access to recreational areas due to the burden and expense of defending against personal injury suits and of placing such land in a safe condition." Goddard v. Department of Fish & Wildlife, 243 Cal. App. 4th 350, 360 (2015).
In order to prove a "natural condition immunity" defense, the government has to meet four elements: (1) the plaintiff's harm was caused by (2) a natural condition (3) of an unimproved (4) public property. See CACI No. 1110. These terms are not defined by Section 831.2, and the elements tend to overlap in the caselaw interpreting it. Therefore, it is suggested that the best way to analyze the applicability of this defense in any given tree injury case is to answer the following four questions:
1. What kind of tree is it?
Trees are generally considered to be "natural conditions." See, e.g., County of San Mateo v. Superior Court, 13 Cal. App. 5th 724, 731 (2017). However, only trees native or indigenous to California count as "natural conditions." See Milligan v. City of Laguna Beach, 34 Cal. 3d 829, 835-36 (1983), concurring opinion; see also Alana M. v. State of California, 245 Cal. App. 4th 1482, 1491 (2016); City of Chico v. Superior Ct. of Butte Cty., 68 Cal. App. 5th 352 (2021).
2. How was the tree treated by the public entity?
A tree will also be considered a "hybrid condition" instead of a "natural condition" if the government "engaged in conduct which actively increased the degree of dangerousness of [the tree]." Morin v. County of Los Angeles, 215 Cal. App. 3d 184, 194 (1989). For example, in Meddock v. County of Yolo, 220 Cal. App. 4th 170, 175 (2013), the court suggested that poorly pruning the tree could cause a nonnatural danger. By contrast, in City of Chico, the court found that poor pruning did not cause the tree to be a nonnatural condition. Ultimately however, whether a tree is a "natural condition" is generally considered to be a question of fact. County of San Mateo, 13 Cal. App. 5th at 731.
Similarly, "section 831.2 is no bar to liability where a public entity voluntarily assumes the duty of protecting the public from a hazardous condition, and then negligently fails to perform that duty." Winterburn v. City of Pomona, 186 Cal. App. 3d 878, 882 (1986).
3. Where was the plaintiff harmed?
The location of the plaintiff's harm is particularly relevant in tree injury cases because, unlike other dangerous condition of public property cases, the location of injury is not necessarily the same location as the dangerous condition. This aspect is important for two main reasons:
First, the "natural condition immunity" defense only applies to users of the recreational area, not nonusers who are harmed on adjacent property. For example, in Milligan, the defense did not apply when a tree that was growing on city property fell onto the plaintiffs' house.
Second, with respect to the "unimproved" element of the defense, there is a split among the appellate courts about whether or not the location of the injury or the location of the tree is the relevant focus. County of San Mateo, 13 Cal. App. 5th at 732. On the one hand, Rendak v. State of California, 18 Cal. App. 3d 286 (1971), and its progeny "developed the rule that 'some form of physical change in the condition of the property at the location of the injury is required." Ibid. On the other hand, Alana M. more recently held that "[w]hen the location of the injury is different from the location of the natural condition, the character [i.e., improved or unimproved] of the location of the injury is not relevant." Id. at 733.
4. Where was the tree located?
Regarding the location of the tree itself, the first thing to do is find out if it is actually on public property. "[B]efore governmental tort liability may be imposed for a dangerous condition, the public entity must either own or control the public property at issue at the time of the injury." Goddard, 243 Cal. App. 4th at 366. "Public property" is defined as "real or personal property owned or controlled by the public entity, but do[es] not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity." Gov. Code Section 830(c).
Next, if the court is following Alana M., the tree has to be on "unimproved" land. When there has been some form of artificial, physical change to the nature or characteristics of the property, it has been "improved." Alana M., 245 Cal. App. 4th at 1489; see also Mercer v. State of California, 197 Cal. App. 3d 158, 165 (1987). However, it is the immediate area around the tree that matters because "improvements in one portion of public property do not destroy governmental immunity for unimproved areas." County of San Mateo, 13 Cal. App. 5th at 731. Whether the relevant property is "unimproved" is generally a question of fact. Ibid.
Answering the above questions in Gary's case: (1) the tree was a Valley Oak and thus native to California; (2) government employees properly maintained the tree and did not cause the branch to fall; (3) Gary was harmed on improved land adjacent to the park; and (4) the tree was located on unimproved, government land. Therefore, Section 831.2 does not apply because it would not serve the purpose of preserving unimproved recreational public property for all to enjoy since Gary was not using the park when he was hurt.
The author wishes to thank Ronald L. M. Goldman and Timothy A. Loranger for their valuable feedback on this article.