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Statutory Immunity For A Landowner When An Injured Claimant Is Engaged In A Recreational Activity

Landowners in California are often sued by members of the public who sustain injuries while engaging in recreational activities on the private landowner’s property, such as skateboarding, watching fireworks, hiking, camping, fishing, et cetera. In defending against lawsuits initiated by such injured members of the public, defense counsel should always plead the affirmative defense of statutory immunity for landowners provided by Civil Code section 846. What follows is an analysis of that defense and its application as illustrated in a recent case wherein our client, a private landowner, prevailed on a motion for summary judgment against plaintiffs who were injured while allegedly on our client landowner’s private property for the purpose of watching a 4th of July fireworks display. 

In California, public policy favors private landowners allowing their property to remain open for members of the public to use that land for recreational purposes. To effectuate that policy, the California Legislature enacted Civil Code section 846, granting statutory immunity to landowners in cases where members of the public sustain injury while engaged in recreational activities, so long as certain conditions are met, as described herein below.

A. Statutory Language of Civil Code§ 846

Civil Code§ 846 provides:

An owner of any estate or any other interest in real property, whether possessory or non-possessory, 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 of, structures, or activities on such premises to persons entering for such purpose, except as provided in this section.

A "recreational purpose," as used in this section, includes such activities as fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.

An owner of any estate or any other interest in real property, whether possessory or non-possessory, who gives permission to another for entry or use for the above purpose upon the premises does not thereby (a) extend any assurance that the premises are safe for such purpose, or (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 any act of such person to whom permission has been granted except as provided in this section.

This section does not limit the liability which otherwise exists (a) for willful or malicious failure to guard against a dangerous condition, use, structure or activity; or (b) for injury suffered in any case where permission to entre for the above purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose; or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.

Nothing in this section creates a duty of care or ground of liability for injury to person or property.

This section does not limit the liability which otherwise exists (a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose; or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.

B. The Requisite Elements to Perfect the Statutory Immunity Defense

1. “Recreational Purpose

As stated above, the statute defines “recreational purpose” to include such activities such as “fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.”

“The determination as to whether the land is ‘suitable’ for recreation is placed on the user, not the courts….The statute encompasses any land that is used for recreation, rather than what some court may determine is recreational land.” (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1106.)  “By stating that a recreational purpose ‘includes such activities as’ those listed therein, the statute clearly indicates that the list is merely illustrative….A recreational purpose is one intended to refresh the body or mind by diversion, amusement, or play.” (Valladares v. Stone (1990) 218 Cal.App.3d 362, 369.)

For illustrative purposes, we recently won a motion for summary judgment in a case where an out of control vehicle jumped a curb and plowed into a crowd of spectators watching a Fourth of July fireworks display from, and bordering, a privately owned shopping center. The court agreed with our argument that the plaintiff spectators were engaged in a recreational activity (e.g., sightseeing, picnicking…viewing or enjoying historical, scenic…sites), over plaintiffs’ argument that because one of the plaintiffs had made a purchase at one of stores within the defendant shopping center prior to sitting down to watch the fireworks display, plaintiffs were not engaged in a recreational activity, but rather, the activity for which the shopping center was open (i.e., retail sales).

2. Willful or Malicious Failure to Guard Against a Dangerous Condition

In the context of Civil Code§ 846, ‘willful or malicious’ failure to guard or warn against a dangerous condition, use, structure or activity on private property, involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences. (See Manuel v. Pacific Gas & Electric Co. (2009) 173 Cal.App.4th 927, 947-948.) The intention must relate to the misconduct and not merely to the fact that some act was intentionally done. “Willfulness generally is marked by three characteristics: (1) actual or constructive knowledge of the peril to be apprehended; (2) actual or constructive knowledge that injury is a probable, as opposed to possible, result of the danger; and (3) conscious failure to act to avoid the peril.” (Manuel, supra, at pg. 940; emphasis added.)

Going back to the aforementioned exemplar, we presented undisputed evidence that established the owner of the shopping center: (1) was not involved in any way in the preparation, or execution, of the fireworks display; (2) had no knowledge prior to the incident that members of the public used its private property as a viewing area for the fireworks display; (3) did not know, or have reason to know, that a vehicle would or would likely strike another vehicle in the intersection and subsequently strike spectators on the corner of that intersection, because to their knowledge, that had never happened before; (4) never intended to harm anyone by not placing barricades or some other type of protective devices (a) on the private property, (b) on the public sidewalk bordering the private property, or (c) beyond the public sidewalk in the public street, to attempt to prevent the incident from happening, because it had no authority to do so; and (5) did not consciously fail to act to prevent the incident from occurring based on the aforementioned undisputed facts.

Plaintiffs’ argument in opposition was that an employee of the shopping center assumed people would be watching the fireworks display near the property, and perhaps tailgating, and thus, the private landowner’s decision to basically ‘do nothing’ was ‘willful and malicious.’ The court found plaintiffs’ argument unpersuasive.

3. Consideration

“Consideration means some type of entrance fee or charge for permitting a person to use specially constructed facilities.” (Moore v. City of Torrance (1979) 101 Cal.App.3d 66, 72.)

Again using the aforementioned exemplar, we presented undisputed evidence that plaintiffs paid no consideration to the landowner to use the shopping center, and/or the sidewalk bordering the shopping center, as a viewing area for the fireworks display. 

Plaintiffs argued that stores and restaurants within the shopping center were open for business and that the landowner’s assumed knowledge and permitting of members of the public to watch the fireworks display from its property, and to tailgate therefrom, established goodwill in the community which amounts to consideration.  Plaintiffs concurrently argued that one of the plaintiffs shopped at one of the stores in the shopping center prior to sitting down to watch the fireworks display, and that since that store made a profit from that sale, and the shopping center thereby obtained a percentage of the profit from that sale pursuant to the lease, the shopping center obtained the requisite consideration. The court again found plaintiffs’ arguments unpersuasive.

4. “Express Invitation

“In ordinary parlance, an advertisement to the general public is not considered an ‘express invitation’ to each member of the public to whom the message is beamed.  Nothing in the sparse legislative history of Civil Code§ 846 suggests that a more encompassing reading of the term ‘expressly invited’ was intended. To the contrary, the little history available indicates that the Legislature intended the term ‘expressly invited’ to include only those persons who were personally selected by the landowner.” (Phillips v. U.S. (1979) 590 F.2d 297, 299.)  Furthermore, Ravell v. U.S. (1994) 22 F.3d 960 held that Johnson v. Unocal Corp. (1993) 21 Cal.App.4th 310, correctly set forth the law of the State of California, and that plaintiff, a member of the public, came onto the property without “a direct personal invitation” and thus, the defendant did not owe a duty of care to make the property safe for her use, which was a recreational air show (citing Johnson, supra).

Again citing the exemplar, we presented undisputed evidence that the shopping center played no part in the promotion, or execution of the fireworks display. It did not advertise or market to members of the public that they could watch the fireworks display from the shopping center. The landowner did not send out any direct, personal invitations to any members of the public, much less plaintiffs, to come watch the fireworks display from its property. Plaintiffs even admitted in written discovery and depositions that they received no invitations from anyone to watch the fireworks display from where the incident occurred.

C. Handling the Landowner’s Statutory Immunity Defense

Counsel for the landowner should ascertain as soon as possible what the injured plaintiffs were doing on the property when the injury occurred. If such was a recreational activity, whether expressly enumerated by the statute, or simply something that “refreshthe body or mind by diversion, amusement, or play,” then counsel should then attempt to develop evidence that establishes that the exceptions enumerated above do not apply, and that the landowner is entitled to statutory immunity. Evidence establishing the elements of ‘recreational purpose,’ ‘consideration’, and ‘express invitation’ can be obtained from the plaintiff(s), most commonly through written discovery and/or deposition testimony. The landowner can also provide the evidence establishing the elements of ‘consideration,’ ‘express invitation,’ and ‘willful or malicious,’ most commonly through a declaration based on personal knowledge.

As a procedural matter, the landowner must plead as an affirmative defense statutory immunity pursuant to Civil Code§ 846.

 

Cary L. Wood, Esq. is a partner, and Matthew M. Taylor, Esq., is an associate at Lewis Brisbois Bisgaard & Smith LLP in the General Liability Practice Group. Both are well versed in this area of law, and would be more than happy to answer any questions one might have on this subject.

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