Recreational Immunity – Thinking of Hiking, Camping, Fishing, Bike Riding, Sightseeing, Picnicking, or Nature Walks? You Should Know About This Law That May Prevent You From Getting Compensation for Your Injuries!
It’s about that time of year again. Spring is just around the corner and summer is trailing close behind. That means the warm and hot days are coming soon. The sun will be out and so will people. At this time of year, we all like to be outside and enjoy the outdoors no matter where we are. As long as the sun is out and it’s nice outside, people will find something to do. Some will go hiking, bike riding, camping, sightseeing, picnicking, fishing, or camping. These are activities we all love to do.
However, have you ever thought about what your rights are if you got injured by a dangerous condition on the property while participating in one of these recreational activities? What happens if you trip and fall on something hidden or dangerous? If you break a leg or something worse? Who will pay for your medical bills and your pain and suffering? The private or public landowner? The answer will surprise you.
The general rule, with very limited exceptions, is that if you are injured while engaging or participating in one of these “recreational activities”, you cannot pursue compensation against any public or private landowner. The public or private landowner is immune from liability. Basically, that means you cannot sue them for your injuries if it was caused by something on their land. This is known as “Recreational Immunity.”
Civil Code §846 essentially states that a landowner “owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give warnings of hazardous conditions…. on the premises to person entering for recreational purpose.”
A “recreational purpose” includes but is not limited to the following: “fishing, hunting, camping, water sports, hiking, spelunking (exploring caves), 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.” The courts have expanded this to include kite-flying and tree climbing as recreational activities as well.
Normally, a landowner owes a duty of reasonable care to keep the premises safe for any person going on their land. But, if you enter onto a piece of land (private or public) for recreational reasons, then this Recreational Immunity may apply. The California Supreme Court states that whether or not a person enters onto a piece of land for recreation shall be determined by the totality of the circumstances. Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1102. In Ornelas, Ornelas, a minor child, and 5 other children entered onto a property to play on or near a farm equipment that was being stored on the property. Some of the kids were playing on top of the farm equipment when a piece of metal broke and hit Ornelas. At the time of the injury, Ornelas was not playing on the farm equipment. Ornelas was just sitting by it, playing with a toy on the ground because he was too tired to play on the farm equipment. The California Supreme Court held that Recreational Immunity applied because the only reason Ornelas was on the property in the first place was because it was for a recreational purpose. He entered onto the property to play. The fact that he wasn’t playing at the time of the incident was irrelevant.
It is the intent of the person entering onto the land that determines whether or not Recreational Immunity applies. It does not matter if the land was blocked off, fenced off, or not. The legislature wrote the law with the intention of encouraging landowners to allow or permit access to their land for people to enjoy it. At the same time, the legislature protected these landowners from liability just in case someone got hurt.
The Court stated “One who avails oneself of the opportunity to enjoy access to the land of another for one of the recreational activities within the statute may not be heard to complain that the property was inappropriate for the purpose.” Id. at p. 1108.
There are three limited exception to this rule. Recreational Immunity applies unless there is (a) 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. (C.C. §846.)
The first exception is “willful or malicious failure to guard or warn against a dangerous condition.” This exception applies if a landowner knew about the dangerous condition and the same condition caused prior injuries. Lostritto v. Southern Pac. Transportation Co. (1977) 73 Cal. App.3d 737. In this case, Lostritto, dived of a trestle (bridge for railroads) into a river that was too shallow and broke his neck. The trestle was owned by Southern Pacific. Numerous witnesses testified that people were jumping off the trestle and getting hurt. The reason was that the depth of the water was always changing due to the tides of the ocean. People jumping off could not accurately gauge the depth and would get hurt. These witnesses informed the railroad. A newspaper article reported that one person died jumping off the trestle. Despite the prior event and reports to the railroad, the railroad did nothing to prevent it or warn against it. The jury found that this amounted to willful failure to guard against the dangerous condition. Thus, Recreational Immunity did not apply.
Another exception is the “paid admission exception.” This must be in the form of an “entrance fee.” Miller, a horse rider, was injured when the horse fell due to an alleged dangerous condition on the trail. Miller paid her dues to a riding club. As part of her membership in this riding club, she was allowed to ride the horse on the trail. The riding club in turn pays an association $1.00. The association maintains the trails. The payment of $1.00 was for a physical facility that the riding club had on the trail. The Court ruled that the “paid admission exception” did not apply here because Miller did not pay an “entrance fee” simply by paying her dues. The dues were not for “entrance”, it was to help pay for her riding club membership and to help pay for the $1.00 fee. Thus, the Recreational Immunity did apply and Miller was barred from suing the landowner.
The last exception is the “expressly invited exception.” For this exception to apply, one must be expressly invited onto the property regardless if the invite was for recreational purpose or otherwise. Calhoon, plaintiff, was injured while skateboarding on Defendant Lewis’ property. Earlier, Lewis had asked Calhoon to pick up Lewis at his house so that they can go somewhere else. Calhoon arrived, but Lewis was not ready. Calhoon proceeded to ride his skateboard on Lewis’ driveway. Calhoon somehow fell and impaled himself on a metal object. Calhoon sued. Lewis asserted Recreational Immunity. The Court ruled that Recreational Immunity did not apply because Lewis “expressly invited” Calhoun onto the property. Calhoon v. Lewis (2000) 81 Cal. App. 4th 108.
Recreational Immunity is a defense. Defendant will always try to use it to get a plaintiff’s case kicked out of court. The three exceptions to the Recreational Immunity Rule is very limited and strictly construed. Any person injured while engaging in a recreational activity should contact The Law Firm of R. Sam immediately to discuss their legal rights.