Fault in recreational activities depends on permissions 

click to enlarge California Civil Code Section 846 states that a property owner is not necessarily liable for accidents on his or her land.
  • California Civil Code Section 846 states that a property owner is not necessarily liable for accidents on his or her land.
This week’s question comes from Jason M. in Pacifica, who asks:

Q: “A friend of mine and I were invited by a group of guys to go to a place in the Central Valley where you can do motocross on a fairly large piece of land. They have hills which people jump over and other features that make it a challenging course. Generally, everyone knows to travel in one direction, counterclockwise. I have ridden there before without a problem. The last time, I was nearly killed when someone was going the wrong way and slammed into me crushing my left leg and foot as we both rounded the same corner going in opposite directions. There is usually an arrow pointing the right direction at the entrance to the course from where people park. Later, I saw that one side had fallen so that it pointed up in the air. I have hundreds of thousands of dollars in medical bills. Do I have a case?”

A: Jason, as avid (former) motorcyclist who suffered a catastrophic injury myself, my heart goes out to you. Your question, like many, involves the interpretation of several intersecting areas of the law. You have not stated whether you were present on the land as an invited guest of the owner or someone renting the land and I don’t know if you paid anyone to use this area or not. As you will see below, this creates a critical difference as to whether or not the landowner or renter can be held labile for failing to provide adequate direction to riders to make sure that they all were traveling in the same direction.

If you were on public or private land, without paying any fee for use, then you may have no remedy as against the landowner based upon the recreational use immunity statute embodied in California Civil Code Section 846. This immunity was enshrined in law so as to promote the opening of private lands to the public for recreational purposes without the fear that lawsuits will arise for not safeguarding against all possible hazards.

Section 846 states that “An owner of any estate or any other interest in real property (renter, owner, etc.), 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 those premises to persons entering for a recreational purpose, except as provided in this section.”

A recreational purpose, as used in Section 846, includes activities such 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, private noncommercial aviation activities, winter sports, and viewing or enjoying historical, archaeological, scenic, natural or scientific sites.

Section 846 states: “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 that 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 the person to whom permission has been granted except as provided in this section.”

As is often the case, to every rule there are exceptions. Section 846 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 (money or exchange of something of value) 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.”

So, Jason, as to the owner or possessor of the land, if you were not invited (rather than permitted) to use the course by the owner or did not pay to use the course, or exchange some other valuable consideration, you may have no recourse against the landowner-possessor. This does not mean that you don’t have rights against the other biker for his-her negligence. That analysis, too, is exceptionally complicated so I suggest that you speak to a trial lawyer about your rights.

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