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self-study / Torts

Aug. 11, 2022

Recreational land use immunity

Allen P. Wilkinson

Email: allenpwilkinson1955@gmail.com

Allen is a widely published legal writer and bestselling author, and currently lives in Orange, California. He can be contacted at allenpwilkinsonjd@gmail.com.

Reza Torkzadeh

Founder and CEO, TorkLaw

11601 Wilshire Blvd Ste 500
Los Angeles , CA 90025

Phone: (310) 935-1111

Email: reza@torklaw.com

Thomas Jefferson SOL; San Diego CA

Reza's latest book is "The Lawyer as CEO."

Civil Code section 846 (hereafter Section 846) creates an immunity for landowners and others for injuries and deaths resulting from a dangerous condition of land when being used by a person for recreational purposes. Originally enacted in 1963, the goal of California's recreational use immunity statute is to constrain the growing tendency of private landowners to bar public access to their land for recreational uses out of fear of incurring tort liability. Jackson v. Pacific Gas & Elec. Co. (2001) 94 Cal. App. 4th 1110. Strictly speaking, the recreational use immunity statute does not confer immunity, but rather negates the tort altogether by eliminating any duty of care under specified conditions. Procedurally, the defendant must raise the recreational land use immunity as an affirmative defense. See CACI 1010.

Under Section 846, a landowner's duty to non-paying, uninvited recreational users is, in essence, that owed a trespasser under the common law as it existed before Rowland v. Christian (1968) 69 Cal. 2d 108, i.e., in the absence of willful or malicious conduct the landowner is immune from liability for ordinary negligence. Ornelas v. Randolph (1993) 4 Cal. 4th 1095; Calhoon v. Lewis (2000) 81 Cal. App. 4th 108. Section 846 is an exception to Civil Code section 1714, which makes everyone responsible for injury occasioned to another by his or her want of ordinary care or skill in the management of their property or person. Therefore, Section 846 subd. (b) is not in conflict with the Supreme Court's decision in Rowland v. Christian rejecting traditional common-law distinctions determinative of a landowner's liability. English v. Marin Municipal Water Dist. (1977) 66 Cal. App. 3d 725. Section 846 creates an exception to the general rule that a private landowner owes a duty of reasonable care to any person coming onto the land. Jackson v. Pacific Gas & Elec. Co. (2001) 94 Cal. App. 4th 1110.

What Section 846 Does

A landowner who gives permission to another for entry to or use of the land for a recreational purpose does not thereby (a) extend any assurances that the premises are safe for such purpose; (b) constitute the person to whom permission has been granted the legal status of an invitee or licensee to whom a duty of care is owed; or (c) assume responsibility for or incur liability for any injury to person or property caused by an act of such person to whom permission has been granted, except as otherwise provided in Section 846.

By enacting Section 846, the legislature did not intend to immunize landowners from all liability for permissive and nonpermissive use of their properties, but only those uses which could justifiably be characterized as "recreational" in nature. Gerkin v. Santa Clara Valley Water Dist. (1979) 95 Cal. App. 3d 1022. The provision of the recreational use immunity statute relieving landowners of the duty of care "to keep the premises safe for entry or use by others for any recreational purpose" encompasses only premises liability claims arising from alleged breaches of property-based duties.

Klein v. United States (2010) 50 Cal. 4th 68

If the landowner, an employee or agent were conducting an activity on the property, such as negligently operating a vehicle, and injures someone on the land, Section 846 would not preclude liability. Klein v. United States (2010) 50 Cal. 4th 58; Klein v. United States (9th Cir. 2010) 627 F.3d 1272.

Who Is Granted Immunity

Section 846 subd. (a) provides that the owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses, structures, or activities on those premises to persons entering for a recreational purpose, except as otherwise provided in this section. This immunity applies not only to the landowner or possessor, but to all those who may have any interest in the property, such as an easement or revocable license. Prince v. Pacific Gas & Elec. Co. (2009) 45 Cal. 4th 1151 (easement); Miller v. Weitzen (2005) 133 Cal. App. 3d 732 (encroachment permit); Manuel v. Pacific Gas & Elec. Co. (2000) 77 Cal. App, 4th 1424 (easement); Hubbard v. Brown (1990) 50 Cal. 3d 189 (holder of United States Forest Service grazing permit held an "interest" in property within meaning of this section).

Section 846 does not apply to state, county, and locally owned governmental property. Delta Farms Reclamation Dist. No. 2028 v. Superior Court (1983) 33 Cal.3d 699, cert. denied 464 U.S. 915. However, it does apply to federally owned property and actions brought under the Federal Tort Claims Act. Winters v. United States (E.D. Cal. 2014) 26 F. Supp. 3d 998, aff'd (2016) 655 Fed. Appx. 547, 2016 WL 3671566; Singh v. United States (N.D. Cal. 2010) 718 F. Supp. 2d 1139.

What Activities Are Covered

Section 846 subd. (b) lists a number of specific recreational activities the statute applies to, such as fishing, hunting, camping, swimming, all types of vehicular riding, picnicking, winter sports, and so forth. Earlier decisions inferred that if an activity was not specifically listed in the statute, it was not subject to the recreational immunity. For example, activities such as kite flying, throwing frisbees or horseshoes, hitting golf balls, or playing football on the property were thought to be outside the scope of recreational purposes since they were not expressly listed in section 846 subd. (b).

However, it is now well-established law that inasmuch as Section 846 subd. (a) states that the section applies to any recreational purpose, and section 846 subd. (b) uses the word includes, which is ordinarily a term of enlargement rather than limitation, the recreational use goes beyond those specifically enumerated in Section 846 subd. (b). Section 846 subd. (b)'s list of activities is not exhaustive, and the term "recreational activity' is to be broadly construed. Wang v. Nibbelink (2016) 4 Cal. App. 5th 1.

A "recreational activity" is an activity engaged in for pleasure or exercise that is intended to refresh the body or mind by diversion, amusement, or play. Rucker v. WINCAL, LLC. (Cal. App. 2022) 2022 WL 336718; Valladares v. Stone (1990) 218 Cal. 3d 362, 369. The activities listed in 846 subd. (b) are merely illustrative of the activities which constitute a recreational purpose within the meaning of Section 846. Accordingly, although not specifically enumerated in the list of recreational activities in section 846 subd. (b), "tree climbing" was found to be a recreational use within the meaning of the statute. Valladares v. Stone (1990) 218 Cal. App. 3d 362, 369. Likewise, motorcycle and dirt bike riding can constitute a covered recreational activity. Myers v. Atchison, Topeka & Santa Fe Ry. Co. (1990) 224 Cal. App. 3d 752, 760.

A child who accompanied other children onto private property and was playing with a hand-held toy while the other children were playing on the landowner's farm equipment did not preclude the child's use of the land as recreational under Section 846. (In that case, the farm equipment was knocked over onto the child who was playing with a toy, causing injury). The plaintiff's attorney argued that 846 did not apply to the child because he wasn't climbing on the equipment. Nevertheless, the child had accompanied his friends onto the property for a recreational purpose (to play with his toy) so Section 846 still applied to him.

Ornelas v. Randolph (1993) 4 Cal. 4th 1095. A landowner was entitled to recreational use immunity where the injured plaintiff claimed that, at the time of his injury, he dove into a river not for recreational purposes but to "cool off." Charpentier v. Von Geldern (1987) 191 Cal. App. 3d 101.

Exceptions

A. Payment of Consideration. Section 846 does not bar recovery for any injury suffered where permission to enter the land for a recreational purpose was granted for a consideration or where consideration has been received from others for the same purpose. Miller v. Weitzen (2005) 133 Cal. App. 4th 732. See also Pacific Gas & Elec. Co. (2017) 10 Cal. App. 5th 563. Consideration must be for permission to enter, or payment of an entry fee to use the land or other benefit that gives the landowner an immediate and reasonably direct advantage; it cannot consist simply of the right to be returned to the status quo upon the occurrence of a future event. Wang v. Nibbelink (2016) 4 Cal. App. 5th 1. Payment of a fee to use a portion of the property may not abrogate the immunity provided by Section 846 as to other portions of the land. Hence, paying a fee for entering a campground in a federal forest did not bring the entire forest, including the hot creek area where the plaintiff was injured, under the consideration exception to the United States' immunity under Section 846. Hannon v. United States (E.D. Cal. 1992) 801 F. Supp. 323.

B. Express Invitation. Section 846 does not apply to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner. The "express invitation" exception requires a direct, personal request from the landowner to the person whom the landowner personally selects to come onto the property, although the invitation need not be for the express purpose of engaging in recreation. Jackson v. Pacific Gas & Elec. Co. (2001) 94 Cal. App. 4th 1110. See also Wang v. Nibbelink (2016) 4 Cal. App. 5th 1. Advertisements, brochures, promotional materials, or other invitations to the general public are not express invitations to anyone in particular. Casas v. United States (C.D. Cal. 1998) 19 F. Supp. 2d 1104. Promotional literature published by a forest service did not constitute an "express invitation" to the general public to hike in the advertised national park. Phillips v. United States (9th Cir. 1979) 590 F.2d 297.

C. Willful Misconduct. Section 846 does not apply to a willful or malicious failure to guard against a dangerous condition, use, structure, or activity. "Willful misconduct" is any intentional act of an unreasonable character undertaken in disregard of a known risk or a risk so obvious that the actor must be taken to have been aware of it, and so great as to make resulting harm highly probable. Spence v. United States (E.D. Cal. 2009) 629 F. Supp. 1068, aff'd 374 Fed. Appx. 717, 2010 WL 1050141. To establish willful misconduct that would preclude application of the recreational use statute to limit a landowner's liability, the plaintiff must prove that the defendant (1) had actual or constructive knowledge of the peril; (2) had actual or constructive knowledge that injury was probable, not just possible; and (3) consciously failed to act to avoid the danger. Kolar v. United States (C.D. Cal, 2020) 445 F. Supp. 3d 628.

Land Unsuitable for or Withdrawn from Recreational Use

One judicial exception to Section 846 is land that is unsuitable for or withdrawn from recreational purposes. Domingue v. Presley of So. C.al (1988) 197 Cal. App. 3d 1060, 1067. This rule has traditionally been applied to land being prepared for construction. Property in the process of being developed is excluded "because the purpose of encouraging landowners to permit recreational access to their property would not be furthered by extending [Section 846's] protection to those who own an interest in such property." Valladares v. Stone (1990) 218 Cal. App. 3d 362, 370-71; Domingue v Presley of So. Cal., supra, 197 Cal App. 3d at 1066 ("Free recreational use by the public during such development would interfere with that developer's purpose and use of its private property and is consequently not encouraged."); Potts v. Halsted Financial Corp. (1983) 142 Cal. App. 3d 727, 730 ("Landowners who have begun to erect private dwelling units have already withdrawn this portion of their land from public recreational access by making it unsuitable for such purposes."); Paige v. North Oak Partners (1982) 134 Cal. App. 3d 860, 863-64 (Legislature could not have intended to encourage owners and building contractors to allow their temporary construction project to be used for recreational purposes).

In Valladares v. Stone, a four-year-old boy was injured when he fell from a tree he had been climbing on at a vacant lot. The plaintiff contended that the lot was unsuitable for recreational use and therefore did not apply. The vacant lot was adjacent to a residential housing development and was unimproved and covered with weeds, trees, sand and dirt paths. The plaintiff argued that the lot was not the type of "open, natural and environmentally wholesome land the Legislature envisioned to be governed by" Section 846. The court rejected the plaintiff's implied argument that Section 846 applies only to pristine land which is relatively isolated from densely populated neighborhoods, stating:

The Legislature did not limit section 846 to rural as opposed to urban land. To the contrary, we believe that defendant's parcel is one type of property the Legislature had in mind when enacting section 846. Applying this section to a vacant lot in a residential area promotes the legislative intent to maximize land available for recreational purposes by encouraging landowners to keep their property accessible and open to the public for recreational use without charge. Such access is needed most in urban areas, particularly inner cities, where residents have no easy access to the great outdoors contemplated by plaintiffs. Plaintiff['s] . . . deposition testimony supports this conclusion. Under cross-examination, she acknowledged that, for the families of the subdivision in which she lives, defendant's vacant lot "takes the place of a park because a park is rather far away." Valladares v. Stone (1990) 218 Cal. App. 3d 362, 370-71.

Since the property was in an unimproved, undeveloped state and the defendant had done nothing to withdraw his vacant lot from recreational access, the appellate court upheld the trial court's conclusion that the land and the boy's use thereof fell within the scope of Section 846.

Conclusion

When representing a client in a recreational land use case, some of the foundational questions that must be asked include:

How did the client come to be on this particular area of land? I.e., a specific, direct invitation by the landowner, an advertisement to the general public, just by driving through the area, etc.

Was any fee charged for entry and, if so, did it encompass the whole property or only a part of it?

What was the client's intent when entering the property? That is, was the client's reason for going onto the property for a recreational purpose or something else?

Had similar accidents happened in the same spot because of a dangerous condition of land that the landowner knew of or should have known, but the landowner had taken no steps to remove the danger or warn of it, knowing that more injuries would probably occur if the landowner left it the way it was?

Was the property in the process of being developed or construction taking place?

Californians are the most active people in the United States and the areas for recreation, public and private, are seemingly endless - everything from a vacant lot to a fishing hole to mountain cliffs to major theme parks and attractions. Section 846 seems to be effective in its intended legislative purpose, keeping land open for all types of recreational activities.

#1201

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