Recreational Immunity

The recreational immunity defense is a feature of California statutory law and similar laws in other jurisdictions. The rule of landlord liability appears to conflict with the recreational immunity defense, and no case has resolved the conflict. The issue of immunity would be presented where a landowner keeps his property opened to the public, so that people can walk their dogs and kids can play ball, but the landowner knows that some of the dogs snap at the kids. If a dog seriously injures one of the children, can the victim sue the landlord?

The recreational use immunity statute (Civil Code 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. It states:

Civil Code section 846: An 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 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 nonpossessory, 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 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.

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

Jackson v. Pacific Gas & Elec. Co. (2001) ___ Cal.App.4th ___ , 2001 DJDAR 13261, held that a utility is immune, under Civil Code section 846, from suit by a child who suffered injuries when he attempted to retrieve his kite from an overhead power line, and none of the statutory exceptions applies. The court noted that flying a kite was a recreational activity. In that case, it required that the child go onto the property of a neighbor, and then come into contact with the power line, which was located on an easement belonging to Pacific Gas & Electric Company. The court cited Hubbard v. Brown (1990) 50 Cal.3d 189, 193, for the proposition that the goal of section 846 is to constrain the tendency of private landowners to bar public access to their land for recreational uses out of fear of incurring tort liability.

Landlords who know that there are dangerous dogs on their property become liable to victims when the landlords fail to remove this danger from their land. By opening up their land to children, as in the example given at the beginning of this section, should the landlords’ duty to get rid of vicious dogs come within the protection of section 846 and the recreational use immunities provided by other jurisdictions? The enlightened view would be that 846 does not relieve landlords of their responsibility to keep their property free of dangerous dogs. The primary reason is that the section specifically “does not limit the liability which otherwise exists … for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.” (Section 846.) The presence of a dangerous dog certainly is a dangerous condition; allowing dangerous dogs to roam the property clearly is a dangerous activity. However, no case has decided this point.