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Protection From Liability: Promoting The Use And Development Of Recreational Trails
Presented at the 15th National Trails Symposium , Redding, California, September 21-24, 2000.
By Laura A. Reimche, Staff Counsel
I. THE GROWING TREND TO PROTECT THE LANDOWNER
II. RECREATIONAL USE OF PUBLIC PROPERTY
A. PUBLIC TORT LIABILITY IN CALIFORNIA IS GOVERNED BY THE TORT CLAIMS ACT (California Government Code (CA Gov't Code) §§ 810 et seq. )
1. What does the Tort Claims Act Cover?
2. Liability for dangerous condition of property &endash; CA Gov't Code § 835
3. No punitive damages &endash; CA Gov't Code § 818
B. GOVERNMENTAL IMMUNITIES RELATING TO RECREATIONAL TRAIL USE
1. Immunity for unpaved access roads and recreational trails (CA Gov't Code § 831.4)
(a) Applies both to access roads and trails and to those used for the recreational activity themselves. See Gianuzzi v. State 17 Cal.App.4th 462 (1993); and Armenio v. San Mateo 28 Cal.App.4th 413 (1994).
(b) Applies to any trail (regardless of surfacing) used for recreational purposes. See Farnham v. City of Los Angeles 68 Cal.App.4th 1097 (1998).
(c) Qualified immunity for paved trail/walkway on a public right of way easement provided, the trail is offering access to unimproved property and reasonable attempts are made to provide adequate warnings.
2. Design immunity (CA Gov't Code § 830.6).
(a) Injury caused by approved feature of plan;
(b) approval by authorized body prior to commencing construction or improvement;
(c) any substantive evidence supporting the reasonableness of the approved plan.
3. Immunity for hazardous recreational activities (CA Gov't Code § 831.7).
(a) What activities are considered hazardous in California?
(b) Exceptions to hazardous recreational activity immunity:(1) Failure to warn of a known dangerous condition or of another hazardous recreational activity that was not assumed by the participant as inherently part of the activity (CA Gov't Code § 831.7(c)(1)).
(2) When public pays specific fee to the entity for participation in the hazardous activity (CA Gov't Code § 831.7(c)(2)).
(3) Gross negligence (CA Gov't Code § 831.7(c)(4)(5)).
(4) Negligent failure to properly construct and maintain in good repair any structure, recreational equipment or machinery, or substantial work of improvement (CA Gov't Code § 831.7(c)(3).
4. Immunity for natural condition of unimproved property (CA Gov't Code § 831.2) - when users leave the trail.
III. RECREATIONAL USE OF PRIVATE PROPERTY
A. LIABILITY OF A PRIVATE LANDOWNER
Basic rule of liability: Landowner owes a duty of reasonable care to any person coming onto private property. See California Civil Code § 1714; and Rowland v. Christian 69 Cal.2d 108 (1968).
B. PROTECTIONS FOR THE OWNER OR POSSESSOR OF PRIVATE PROPERTY BEING USED FOR RECREATIONAL PURPOSES
1. Immunity under CA Gov't Code § 831.4 also protects private grantor of an easement.
2. California Civil Code § 846 provides that a private landowner (or one having any possessory interest in land) owes no duty to those who comes upon his/her property for "any recreational purposes". This applies to both trespassers and permittees but not to express invitees. See Delta Farms Reclamation District No. 2028 v. Superior Court 33 Cal.3d 699 (1983), cert. denied.
3. Protection of § 846 not available if:
(a) There is willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity. A duty arises when you know about prior injuries caused by the same condition. Attempts to guard or warn against known dangers have to be reasonable only. See Bacon v. Southern California Edison 53 Cal.App.4th 854 (1997);
(b) specific consideration is paid to landowner for the recreational use; or
(c) person is expressly invited to enter the premises.
4. Right to Reimbursement of Legal Fees: California Civil Code § 846.1
Landowners have failed to take advantage of this protection, enacted in 1996. It provides private land owners and public land trusts with the right to seek reimbursement of attorneys' fees incurred in defending actions brought by recreational users. Up to $25,000 can be paid by the State Board of Control if certain requirements are met.
C. ADJOINING LANDOWNERS ARE NOT LIABLE FOR ACTIVITIES OF TRAIL USERS. California Public Resources Code §5075.4.
IV. OTHER AVAILABLE DEFENSES
A. ASSUMPTION OF RISK
B. COMPARATIVE FAULT
V. INDEMNITY AGREEMENT - A WAY TO ADDRESS ANY LINGERING FEARS.
VI. A REMEDY FOR FRIVOLOUS LAWSUITS
VII. EXPRESS OR IMPLIED DEDICATION OF PUBLIC EASEMENT
LANGUAGE FROM THE RELEVANT STATUTES
California Government Code § 830.6 - Plan or design of, or improvement to, public property; remedial work; warnings.
Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which
(a) a reasonable public employee could have adopted the plan or design or the standards therefor or
(b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor. Notwithstanding notice that constructed or improved public property may no longer be in conformity with a plan or design or a standard which reasonably could be approved by the legislative body or other body or employee, the immunity provided by this section shall continue for a reasonable period of time sufficient to permit the public entity to obtain funds for and carry out remedial work necessary to allow such public property to be in conformity with a plan or design approved by the legislative body of the public entity or other body or employee or with a plan or design in conformity with a standard previously approved by such legislative body or other body or employee. In the event that the public entity is unable to remedy such public property because of practical impossibility or lack of sufficient funds, the immunity provided by this section shall remain so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of the condition not conforming to the approved plan or design or to the approved standard. However, where a person fails to heed such warning or occupies public property despite such warning, such failure or occupation shall not in itself constitute an assumption of the risk of the danger indicated by the warning.
California Government Code § 831.2 - Natural condition of unimproved public property.
California Government Code § 831.4 - Unpaved access roads to recreational or scenic areas; trails; paved paths on easements of way granted to public entities.
(a) Any unpaved road which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas and which is not a (1) city street or highway or (2) county, state or federal highway or (3) public street or highway of a joint highway district, boulevard district, bridge and highway district or similar district formed for the improvement or building of public streets or highways.
(b) Any trail used for the above purposes.
(c) Any paved trail, walkway, path, or sidewalk on an easement of way which has been granted to a public entity, which easement provides access to any unimproved property, so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of any condition of the paved trail, walkway, path, or sidewalk which constitutes a hazard to health or safety. Warnings required by this subdivision shall only be required where pathways are paved, and such requirement shall not be construed to be a standard of care for any unpaved pathways or roads.
California Government Code § 831.7 - Hazardous recreational activities; failure to guard or warn; negligence; duty of care.
(a) Neither a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity, including any person who assists the participant, or to any spectator who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to himself or herself and was voluntarily in the place of risk, or having the ability to do so failed to leave, for any damage or injury to property or persons arising out of that hazardous recreational activity.
(b) As used in this section, "hazardous recreational activity" means a recreational activity conducted on property of a public entity which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or a spectator.
"Hazardous recreational activity" also means:
(1) Water contact activities, except diving, in places where or at a time when lifeguards are not provided and reasonable warning thereof has been given or the injured party should reasonably have known that there was no lifeguard provided at the time.
(2) Any form of diving into water from other than a diving board or diving platform, or at any place or from any structure where diving is prohibited and reasonable warning thereof has been given.
(3) Animal riding, including equestrian competition, archery, bicycle racing or jumping, mountain bicycling, boating, cross-country and downhill skiing, hang gliding, kayaking, motorized vehicle racing, off-road motorcycling or four-wheel driving of any kind, orienteering, pistol and rifle shooting, rock climbing, rocketeering, rodeo, spelunking, sky diving, sport parachuting, paragliding, body contact sports (i.e., sports in which it is reasonably foreseeable that there will be rough bodily contact with one or more participants), surfing, trampolining, tree climbing, tree rope swinging, water-skiing, white water rafting, and wind surfing. For the purposes of this subdivision, "mountain bicycling" does not include riding a bicycle on paved pathways, roadways, or sidewalks.
(c) Notwithstanding the provisions of subdivision (a), this section does not limit liability which would otherwise exist for any of the following:
(1) Failure of the public entity or employee to guard or warn of a known dangerous condition or of another hazardous recreational activity known to the public entity or employee that is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the damage or injury arose.
(2) Damage or injury suffered in any case where permission to participate in the hazardous recreational activity was granted for a specific fee. For the purpose of this paragraph, a "specific fee" does not include a fee or consideration charged for a general purpose such as a general park admission charge, a vehicle entry or parking fee, or an administrative or group use application or permit fee, as distinguished from a specific fee charged for participation in the specific hazardous recreational activity out of which the damage or injury arose.
(3) Injury suffered to the extent proximately caused by the negligent failure of the public entity or public employee to properly construct or maintain in good repair any structure, recreational equipment or machinery, or substantial work of improvement utilized in the hazardous recreational activity out of which the damage or injury arose.
(4) Damage or injury suffered in any case where the public entity or employee recklessly or with gross negligence promoted the participation in or observance of a hazardous recreational activity. For purposes of this paragraph, promotional literature or a public announcement or advertisement which merely describes the available facilities and services on the property does not in itself constitute a reckless or grossly negligent promotion.
(5) An act of gross negligence by a public entity or a public employee which is the proximate cause of the injury.
Nothing in this subdivision creates a duty of care or basis of liability for personal injury or for damage to personal property.
(d) Nothing in this section shall limit the liability of an independent concessionaire, or any person or organization other than the public entity, whether or not the person or organization has a contractual relationship with the public entity to use the public property, for injuries or damages suffered in any case as a result of the operation of a hazardous recreational activity on public property by the concessionaire, person, or organization.
California Civil Code §813 - Recording Notice of Consent to Use of Land.
California Civil Code § 846 - Owner's Liability to Recreational Users.
California Civil Code 846.1 - Administrative Claim for Attorneys' Fees by Public Entity or by Owner in Contractual Relationship with Public or Nonprofit Agency &endash; Underlying Action Brought by Recreational User.
(a) Except as provided in subdivision (c), an owner of any estate or interest in real property, whether possessory or nonpossessory, who gives permission to the public for entry on or use of the real property pursuant to an agreement with a public or nonprofit agency for purposes of recreational trail use, and is a defendant in a civil action brought by, or on behalf of, a person who is allegedly injured or allegedly suffers damages on the real property, may present a claim to the State Board of Control for reasonable attorney's fees incurred in this civil action if any of the following occurs:
(1) The court has dismissed the civil action upon a demurrer or motion for summary judgment made by the owner or upon its own motion for lack of prosecution.
(2) The action was dismissed by the plaintiff without any payment from the owner.
(3) The owner prevails in the civil action.
(b) Except as provided in subdivision (c), a public entity, as defined in Section 831.5 of the Government Code, that gives permission to the public for entry on or use of real property for a recreational purpose, as defined in Section 846, and is a defendant in a civil action brought by, or on behalf of, a person who is allegedly injured or allegedly suffers damages on the real property, may present a claim to the State Board of Control for reasonable attorney's fees incurred in this civil action if any of the following occurs:
(1) The court has dismissed the civil action upon a demurrer or motion for summary judgment made by this public entity or upon its own motion for lack of prosecution.
(2) The action was dismissed by the plaintiff without any payment from the public entity.
(3) The public entity prevails in the civil action.
(c) An owner of any estate or interest in real property, whether possessory or nonpossessory, or a public entity, as defined in Section 831.5 of the Government Code, that gives permission to the public for entry on, or use of, the real property for a recreational purpose, as defined in Section 846, pursuant to an agreement with a public or nonprofit agency, and is a defendant in a civil action brought by, or on behalf of, a person who seeks to restrict, prevent, or delay public use of that property, may present a claim to the State Board of Control for reasonable attorney's fees incurred in the civil action if any of the following occurs:
(1) The court has dismissed the civil action upon a demurrer or motion for summary judgment made by the owner or public entity or upon its own motion for lack of prosecution.
(2) The action was dismissed by the plaintiff without any payment from the owner or public entity.
(3) The owner or public entity prevails in the civil action.
(d) The State Board of Control shall allow the claim if the requirements of this section are met. The claim shall be paid from an appropriation to be made for that purpose. Reasonable attorneys' fees, for purposes of this section, may not exceed an hourly rate greater than the rate charged by the Attorney General at the time the award is made, and may not exceed an aggregate amount of twenty-five thousand dollars ($25,000). This subdivision shall not apply if a public entity has provided for the defense of this civil action pursuant to Section 995 of the Government Code. This subdivision shall also not apply if an owner or public entity has been provided a legal defense by the state pursuant to any contract or other legal obligation.
(e) The total of claims allowed by the board pursuant to this section shall not exceed two hundred thousand dollars ($200,000) per fiscal year.
California Civil Code §1006 - Occupancy Without Prescription.
Occupancy for any period confers a title sufficient against all except the state and those who have title by prescription, accession, transfer, will, or succession; but the title conferred by occupancy is not a sufficient interest in real property to enable the occupant or the occupant's privies to commence or maintain an action to quiet title, unless the occupancy has ripened into title by prescription.Leg.H. 1915 p. 933, 1980 ch. 44.
California Civil Code §1007 - Full Period Adverse Possession or Prescription.
Occupancy for the period prescribed by the Code of Civil Procedure as sufficient to bar any action for the recovery of the property confers a title thereto, denominated a title by prescription, which is sufficient against all, but no possession by any person, firm or corporation no matter how long continued of any land, water, water right, easement, or other property whatsoever dedicated to a public use by a public utility, or dedicated to or owned by the state or any public entity, shall ever ripen into any title, interest or right against the owner thereof. Leg.H. 1872, 1935 ch. 519, 1968 ch. 1112.
California Civil Code §1008 - Prescriptive Easement Barred by Periodic Posting of Sign.
No use by any person or persons, no matter how long continued, of any land, shall ever ripen into an easement by prescription, if the owner of such property posts at each entrance to the property or at intervals of not more than 200 feet along the boundary a sign reading substantially as follows: "Right to pass by permission, and subject to control, of owner: Section 1008, Civil Code." Leg.H. 1965 ch. 926.
California Civil Code §1009 - Means of Protecting Owners of Private Real Property Who Make Lands Available for Public Use.
(a) The Legislature finds that:(1) It is in the best interests of the state to encourage owners of private real property to continue to make their lands available for public recreational use to supplement opportunities available on tax-supported publicly owned facilities.
(2) Owners of private real property are confronted with the threat of loss of rights in their property if they allow or continue to allow members of the public to use, enjoy or pass over their property for recreational purposes.
(3) The stability and marketability of record titles is clouded by such public use, thereby compelling the owner to exclude the public from his property.
(b) Regardless of whether or not a private owner of real property has recorded a notice of consent to use of any particular property pursuant to Section 813 of the Civil Code or has posted signs on such property pursuant to Section 1008 of the Civil Code, except as otherwise provided in subdivision (d), no use of such property by the public after the effective date of this section shall ever ripen to confer upon the public or any governmental body or unit a vested right to continue to make such use permanently, in the absence of an express written irrevocable offer of dedication of such property to such use, made by the owner thereof in the manner prescribed in subdivision (c) of this section, which has been accepted by the county, city, or other public body to which the offer of dedication was made, in the manner set forth in subdivision (c).
(c) In addition to any procedure authorized by law and not prohibited by this section, an irrevocable offer of dedication may be made in the manner prescribed in Section 7050 of the Government Code to any county, city, or other public body, and may be accepted or terminated, in the manner prescribed in that section, by the county board of supervisors in the case of an offer of dedication to a county, by the city council in the case of an offer of dedication to a city, or a governing board of any other public body in the case of an offer of dedication to such body.
(d) Where a governmental entity is using private lands by an expenditure of public funds on visible improvements on or across such lands or on the cleaning or maintenance related to the public use of such lands in such a manner so that the owner knows or should know that the public is making such use of his land, such use, including any public use reasonably related to the purposes of such improvement, in the absence of either express permission by the owner to continue such use or the taking by the owner of reasonable steps to enjoin, remove or prohibit such use, shall after five years ripen to confer upon the governmental entity a vested right to continue such use.
(e) Subdivision (b) shall not apply to any coastal property which lies within 1,000 yards inland of the mean high tide line of the Pacific Ocean, and harbors, estuaries, bays and inlets thereof, but not including any property lying inland of the Carquinez Straits bridge, or between the mean high tide line and the nearest public road or highway, whichever distance is less.
(f) No use, subsequent to the effective date of this section, by the public of property described in subdivision (e) shall constitute evidence or be admissible as evidence that the public or governmental body or unit has any right in such property by implied dedication if the owner does any of the following actions:
(1) Posts signs, as provided in Section 1008, and renews the same, if they are removed, at least once a year, or publishes annually, pursuant to Section 6066 of the Government Code, in a newspaper of general circulation in the county or counties in which the land is located, a statement describing the property and reading substantially as follows: "Right to pass by permission and subject to control of owner: Section 1008, Civil Code."
(2) Records a notice as provided in Section 813.
(3) Enters into a written agreement with any federal, state, or local agency providing for the public use of such land.
After taking any of the actions set forth in paragraph (1), (2), or (3), and during the time such action is effective, the owner shall not prevent any public use which is appropriate under the permission granted pursuant to such paragraphs by physical obstruction, notice, or otherwise.
(g) The permission for public use of real property referred to in subdivision (f) may be conditioned upon reasonable restrictions on the time, place, and manner of such public use, and no use in violation of such restrictions shall be considered public use for purposes of a finding of implied dedication. Leg.H. 1971 ch. 941.
California Public Resources Code § 5075.4 - Liability of Adjoining Property Owners.
No adjoining property owner is liable for any actions of any type resulting from, or caused by, trail users trespassing on adjoining property, and no adjoining property owner is liable for any actions of any type started on, or taking place within, the boundaries of the trail arising out of the activities of other parties.
California Code of Civil Procedure § 128.7 - [Repealed Jan 1, 2003] Award of Sanctions for Actions Violating Specified Conditions. (Reproduced in part only.)
(a) Every pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer's address and telephone number, if any. Except when otherwise provided by law, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.
(b) By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:
(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
(c) If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation. In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence…
California Code of Civil Procedure § 1038 - Actions Under Tort Claims Act &endash; Payment of Defense Costs for Action Brought in Bad Faith. (Reproduced in part only.)
(a) In any civil proceeding under the California Tort Claims Act or for express or implied indemnity or for contribution in any civil action, the court, upon motion of the defendant or cross-defendant, shall, at the time of the granting of any summary judgment, motion for directed verdict, motion for judgment under Section 631.8, or any nonsuit dismissing the moving party other than the plaintiff, petitioner, cross-complainant, or intervenor, or at a later time set forth by rule of the Judicial Council adopted under Section 1034 determine whether or not the plaintiff, petitioner, cross-complainant, or intervenor brought the proceeding with reasonable cause and in the good faith belief that there was a justifiable controversy under the facts and law which warranted the filing of the complaint, petition, cross-complaint, or complaint in intervention. If the court should determine that the proceeding was not brought in good faith and with reasonable cause, an additional issue shall be decided as to the defense costs reasonably and necessarily incurred by the party or parties opposing the proceeding, and the court shall render judgment in favor of that party in the amount of all reasonable and necessary defense costs, in addition to those costs normally awarded to the prevailing party. An award of defense costs under this section shall not be made except on notice contained in a party's papers and an opportunity to be heard.
(b) "Defense costs," as used in this section, shall include reasonable attorneys' fees, expert witness fees, the expense of services of experts, advisers, and consultants in defense of the proceeding, and where reasonably and necessarily incurred in defending the proceeding…
For more information, contact Margie Coffin Brown, Historical Landscape Architect, Olmsted Center for Landscape Preservation, National Park Service: Margie_coffin@nps.gov
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