By: Ara Jabagchourian
Forum, Vol. 46, Number 4
Civil Suits against government entities are equivalent to navigating a minefield. Part of the reason, beyond the requirement that an affirmative duty exist to trigger the Government Claims Act,, are the countless statutory immunities. Therefore, it should come as no surprise that premise liability claims against government entities are no different. The focus on this article will be centered around the statutory creation of what is known as “recreational immunity.”
CIVIL CODE SECTION 846
Several different statutes exist that provide immunity to government entities for land that is used for some form of recreation. One often used and misapplied has been promulgated under California Civil Code 846. Section 846 provides immunity to private landowners related to the issue of premise liability if the land is used for “recreational purposes.” When enacted back in 1963, the goal of section 846 was to “encourage property owners ‘to allow the general public to recreate free of charge on privately owned property.'” (Spence v. United States (2009) 629 F.Supp.2d 1068, 1084; quoting Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707-708.) The concern at the time was that private landowners were closing off their undeveloped land to the public as a result of a concern of tort liability. (Hubbard v. Brown (1990) 50 Cal.3d 189, 193.)
Pursuant to section 846, immunity is applied for activities that are for a “recreational purpose.” The phrase recreational purpose” has been defined in the statute to include:
“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, private noncommercial aviation activities, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.”
(Civ. Code section 846.)
There are three statutory exceptions to section 846’s immunity. These include (1) willful or malicious failure to guard or warn against a dangerous condition, use structure or activity; or (2) for injury suffered in any case where permission to enter for the above purpose was granted for consideration; or (3) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.
A highly litigated issue related to section 846’s exceptions is the “consideration” issue. In order “[t]o trigger section 846’s consideration exception, payment must be made in exchange for ‘permission to enter’ the property or ‘received from others for the same purposes.'” (Spence, supra, 629 F.Supp.2d at 1087; quoting Miller v. Weitzen (2005) 133 Cal.App.4th 732, 739.) California cases interpreting consideration have found that it must generally be paid “in the form of an entrance fee.” (Johnson v. Unocal Corp. (1993) 21 Cal.App.4th 310, 316-317.)
One case that interpreted the consideration exception narrowly was Spence v. United States. The Spence case involved an individual who brought suit against the United States after taking a fall during a bicycle riding event held by a private group. A portion of the ride went through the military base, Fort Hunter Liggett. A fee was paid to the event organizer by the plaintiff and other riders. However, neither the riders nor the event organizer paid to enter Fort Hunter Liggett. (Spence, supra, at 1072-1073.)
The court found that the fee paid by the plaintiff to the event was not “a base entrance fee.” (Spence, supra, at 1087.) Rather, it was “a race entry fee.” (Ibid.) Additionally, there was no fee required to enter the base. The court held that section 846 served to immunize the United States government in this case as the consideration exception was not triggered given the absence of an entry fee. To the extent you are evaluating such a case, understanding what the consideration was actually paid for.
SECTION 846’S APPLICATION TO PUBLICLY OWNED LANDS
There was a roughly six year period (from 1977-1983) where California courts applied section 846 to publicly owned lands. The case of English v. Marin Mun. Water Dist. (1977) 66 Cal.App.3d 725 implicitly held that section 846 applied to lands owned by the public. Moore v. City Torrance (1979) 101 Cal.App.3d 66, took the holding of English and explicitly held that section 846 applied to publicly-owned lands. In reversing this line of cases, the California Supreme Court in Delta Farms Reclamation Dist. v. Superior Ct. (1983) 33 Cal.3d 699, 710, held that section 846 does not apply to publicly-owned lands. Rather, the Government Code statutes related to dangerous condition on public land apply. (Gov. Code section 830, et seq.)
Section 846 applies to the federal government in that the federal government’s tort liability under the Federal Tort Claims Act, if any, is to be determined according to the law of California, since that is where the negligent act allegedly occurred. (Richards v. United States (1962) 369 U.S. 1, 6-8; Ravell v. U.S. (9th Cir. 1994) 22 F.3d 960, 961.) “Thus, in California section 846 applies to the United States in the same manner it would apply yo an individual.” (Casas v. United States (C.D. Cal. 1998) 19 F.Supp.2d 1104, 1107.)
It is not enough to determine whether recreational immunity applies to land that is privately held versus publicly held. In evaluating the claim, it becomes important to understand which public entity owns the land to understand section 846’s applicability.
RECREATIONAL IMMUNITIES THAT APPLY TO CALIFORNIA OWNED PROPERTIES
Many of you know that a government entity can be liable for creating or maintaining a dangerous condition on public land. (Gov. Code section 835.) The one major difference in the elements of proof between proving a dangerous condition on public land versus private land is that it must be shown that the government entity had actual or constructive knowledge of the dangerous condition or that the government employee failed to act in a manner required in its scope of employment that created the dangerous condition. (Ibid.; Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105-1106.)
An entire treatise can be prepared assessing the law related to a dangerous condition of public property. The focus here is to look at the myriad immunities that apply to the state related to recreational activities. Below are some of the statutory exceptions that exist under the Government Claims Act.
1. Trails and roads
In conjunction with section 846, California adopted Government Code section 831.4 in 1963. Section 831.4 provides liability for claims arising from the use of unpaved roads or trails that provide “access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas . . . .” (Gov. Code section 831.4 (a), (b); Astenius v. State of California (2005) 126 Cal.app.4th 472.) This immunity applies if the road or trail is not a public street or highway. (Ibid.) Furthermore, “paved trails, walkway, path or sidewalk” that provide access to unimproved land is also immune as long as the public entity owning the trail makes reasonable attempts to provide adequate warning of the existence of any condition. (Gov. Code section 831.4(c).)
Unlike section 846, section 831.4’s immunity is absolute. Where a fee is charged by the state to enter the park, it does not abrogate the state’s immunity. (Bartlett v. State of California (1988) 199 Cal.app.3d 392, 398; Astemius, supra.) No statutory exceptions exist related to section 831.4’s immunity.
The courts have also given section 831.4’s immunity an expansive reading. Legislative history indicates that subdivision (c) (relating to paved roads), which was enacted after subdivisions (a) and (b), was not intended to limit existing immunity in any way, but rather to expand it. (Giannuzzi v. State of California (1993) 17 Cal.App.4th 462, 466.) A path within a dog park was deemed to be a “trail” or even a “sidewalk” under section 831.4. (Amberger-Warren v. City of Piedmont (2006) 146 Cal.App.4th 1074.) Likewise, a bike path that ran along a river was also held to be within the purview of section 831.4. (Prokop v. City of Los Angeles (2007) 150 Cal.app.4th 1332.)
2. Hazardous recreational activity
Immunity also exists to protect the government for activity undertaken that is deemed to be “hazardous recreational activity.” Pursuant to Government Code section 831.7, “hazardous recreational activity” is defined as “a recreational activity conducted on property of a public entity that creates a substantial, as distinguished from a minor, trivial, or insignificant, risk of injury to a participant or a spectator.” ( Gov. Code section 831.7(b).) The code further goes on to include a whole host of activities “animal riding, [ ] archery, bicycle racing or jumping, bicycle motocross, mountain bicycling, boating, cross-county and downhill skiing . . . .” (Gov. Code section 831.7(b)(3).) Section 831.7’s reach appears to stretch to those activities that come within the primary assumption of risk doctrine.
Similar to section 846, section 831.7 has several exceptions to immunity. Some of these include knowing of a dangerous condition, consideration paid to participate in the specific “hazardous recreational activity,” failure to properly maintain or construct any structure or equipment used in the activity, or an act of gross negligence. (Gov. Code section 831.7(c).) Again, the courts have read these exceptions to the immunity very narrowly. (See DeVito v. State of California (1988) 202 Cal.App.3d 264.)
3. Natural condition on unimproved land
Government Code section 831.2 provides for immunity related to any injury caused by a natural condition occurring on unimproved lands such as “lake, stream, bay, river or beach.” (Gov. Code section 831.2.) Again, the purpose of this section is to permit the public to use governmental property and to discourage governmental agencies from prohibiting such use if they were put to the expense of making the property safe, responding to tort actions, and paying damages. (Winterburn v. City of Pomona (1986) 186 Cal.App.3d 878, 880-881.) However, if a public entity voluntarily assumes the duty to protect the public from a hazardous condition, it must do so reasonably. (Gonzalez v. City of San Diego (1982) 130 Cal.App.3d 882, 885-886.)
It is worth noting that section 831.2’s reach only applies to user of public lands, not to adjacent property owners. (Milligan v. City of Laguna Beach (1983) 34 Cal.3d 829.) In Milligan, a tree from the City of Laguna Beach fell on plaintiff’s residence. The City argued that the fallen tree resulted from a natural condition and was therefore immune under section 831.2. The California Supreme Court held that “the natural condition immunity of section 831.2 is inapplicable to injuries caused to nonusers of adjacent property” and therefore did not need to determine whether the falling tree was a natural condition.
When faced with a potential premises liability action related to a government entity, it is worthwhile to read through the Government Claims Act beginning at section 830 of the Government Code. If you are dealing with a premises liability action against the federal government, depending on the activity that caused the injury, Civil Code section 846 may apply. There are many specific statutory immunities that relate to specific conduct on certain types of property. Just like with all actions instituted against government agencies, it is critical to understand the immunities that exist and any exceptions that may provide an avenue of recovery for your clients.