Torts – Immunity for Recreational Activities by Private Landowner

by Low, Ball & Lynch
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Yan Wang et al., v. Gregory Nibbelink, et al.

Court of Appeal, Third Appellate District (October 13, 2016)

Under Civil Code § 846, a landowner is shielded from liability from injuries to recreational users caused by any act of the recreational users themselves. This case considered whether a landowner would be held liable for injuries caused by a recreational user to an off-premises non-participant.

On June 8, 2009, a horse owned by defendant Robert Donald Burnley (“Burnley”) ran away from a meadow owned by defendant Gregory Nibbelink and others (“Defendants”) onto an adjacent property and trampled plaintiff Yan Wang as she got out of her car to dine at the lodge adjoining Defendants’ property.

The horse was part of the Wagon Train – an annual historical event simulating “Old West” travel by stage coach across the Sierras in Northern California. The Wagon Train used old-time stage coaches, accompanied by horses with riders, and traveled for a period of days from one stop to the next. One stop was the meadow owned by Defendants. The Defendants had no involvement in the event themselves. They were originally approached by Wagon Train after they purchased the property, and were asked if the Wagon Train could continue to use the meadow as it had done before. For several years thereafter, the Wagon Train quartered as many as 75 horses overnight on the property for the event. The only thing Defendants asked for in exchange was to be included as additional insureds on the Wagon Train’s liability insurance policy.

Plaintiff filed suit against Burnley for negligence, and against Defendants for negligence under Civil Code § 1714 (injury caused by want of ordinary care in management of one’s property) and negligent infliction of emotional distress for Plaintiff’s husband. Defendants filed a Motion for Summary Judgment based solely on Civil Code § 846. Plaintiffs opposed the motion, arguing that the injury occurred off Defendant’s property, that the Wagon Train was not “recreating,” and that parking a horse is not a recreational activity. The trial court granted the Defendants’ Motion for Summary Judgment. The trial court denied Plaintiffs’ motion for a new trial. Plaintiffs appealed.

The Court of Appeal affirmed the judgment, holding that Civil Code § 846(c) applies to off-premises injuries to non-recreating persons such as Plaintiff. Section 846 contains separate immunities shielding landowners from liability for (1) injuries to recreational users; and (2) injuries caused by recreational users. This case involved only the latter, which is found in the third paragraph of the statute, (§ 846(c)) which provides that “[a landowner] who gives permission to another for entry or use for [recreational purposes] does not thereby . . . assume responsibility for or incur liability for any injury to person or property caused by any act of the person to whom permission has been granted.” (with limited statutory exceptions). This was the situation at issue here.

Section 846 expressly includes “camping,” “nature contacting,” and “enjoying historical . . . scenic, [or] natural . . . sites.” The California Supreme Court also held that the statutory list was not exhaustive and the term recreational activity was to be broadly construed in Klein v. United States of America (2010) 50 Cal.4th 68, 85. The Court found that § 846(c) broadly relieves landowners of liability for “any injury to person” caused by “any act” of the recreational user. The Court found that since liability would otherwise be imposed for an injury both on and off the landowner’s property, logic demands that such immunity from liability would equally apply to injuries both on and off the property.

The Court disagreed with Plaintiffs’ argument that because subpart (c) of the third paragraph refers to persons to “whom permission has been granted,” its scope is limited to injury to those permittees, and not strangers, such as the plaintiff. However the Court noted that the quoted reference was to injury “caused by” any act of the permittee. Plaintiffs’ construction would have us add language not placed there by the Legislature, i.e., injury to a person on the premises for recreational purposes.

Plaintiffs also made an argument that whether or not § 846 applied, the landowners could be personally liable for negligence. The Court noted that § 846 does not apply to willful or malicious failure to guard or warn; however, the Court also found that Plaintiffs had no specific facts of landowner’s negligent act or omission independent of the recreational use that was specifically shielded by § 846. Therefore, the Court rejected Plaintiffs’ argument that the defendant could be found to be personally liable for negligence.

The Court of Appeal affirmed summary judgment in favor of the Defendants.

COMMENT

This case of first impression expanded the immunity a landowner enjoys under Civil Code § 846 from permitting their land to be used for recreational purposes which causes injuries both on and off of the landowner’s property. Unless the landowner is actively negligent, it will not matter if the injury occurs off the property, so long as the causative event was based on acts of the recreational user on the property.

For a copy of the complete decision, see: Wang v. Nibbelink

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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