section 846 immunity in California

2010IV Having concluded that Civil Code section 846's safe-premises immunity clause does not encompass vehicular negligence claims, we consider and reject the arguments that defendant United States offers against this statutory construction. *85 To support its position that Civil Code section 846 precludes recovery against a landowner for an injury caused by vehicular negligence, defendant United States seizes on language in this court's decision in Ornelas characterizing section 846 as "extremely broad" ( Ornelas, supra, 4 Cal.4th 1095, 1105 ).

2010The injuries occurred when other children playing on top of old farm machinery that was stored on the defendant's property dislodged a metal pipe that fell on the Ornelas child. ( Ornelas, supra, 4 Cal.4th 1095, 1098 .) This court rejected the argument, supported by earlier Court of Appeal decisions, that Civil Code section 846 does not apply if the property on which the injury occurred was, at the time of the injury, unsuitable for recreational use. ( Ornelas, supra, at p. 1108 .) The Ninth Circuit found significance in this court's explanation in Ornelas of the rationale for section 846 immu

2005Appeals Bd. (1973) 10 Cal.3d 222, 230 [ 110 Cal.Rptr. 144 , 514 P.2d 1224 ] [noting “fundamental rule” that a court “ ‘should ascertain the intent of the Legislature so as to effectuate the purpose of the law’ ”]; Hubbard, supra, 50 Cal.3d at p. 197 [“the Legislature clearly intended ... to immunize private owners of easements . . . from tort liability to recreational users”]; cf. Jackson v. Pacific Gas & Electric Co. (2001) 94 Cal.App.4th 1110, 1117 [ 114 Cal.Rptr.2d 831 ] [upholding section 846 immunity for utility company that held easement for placement of utility poles on private land of

2001(Hubbard v. Brown, supra, 50 Cal.3d at p. 197 .) Joshua offers no reason, grounded in legislative history or policy, why a fee owner’s invitation to personal guests should be considered sufficient to strip section 846’s broad immunity from an easement holder.

2017PG&E argues hypotheticals such as these (for example, involving a paid park visitor getting electrocuted by a negligently maintained electrical wire), ”test[] the boundaries of recreational immunity” under section 846 which is *581 concerned with “property-based duties underlying premises liability” (Klein, supra, 50 Cal.4th at p. 72 ) and “raise[] other issues” regarding the scope of section 846 immunity “that have nothing to do with the issues raised here.” But it does not seem far-fetched that a utility would invoke section 846 in defense of personal injury actions of this sort which appear

2017(Cf. Klein, supra, 50 Cal.4th at p. 82 .) When a defendant enjoys immunity under section 846, the statute’s protection extends to claims for implied indemnity as well.

2022(See generally, Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854 , 858-859 [shifting burden of summary judgment and section 846 immunity].) 17. its burden of establishing the section 846 immunity as a complete defense to the Nusbaums’ action.

2016(Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 857 [ 62 Cal.Rptr.2d 16 ] [holding negligence in maintaining barrier was not enough to abrogate § 846 immunity]; see also Manuel v. Pacific Gas & Electric Co. (2009) 173 Cal.App.4th 927 [ 93 Cal.Rptr.3d 9 ] [compiling cases].) Here, the moving papers did not need to address willfulness or malice, because the complaint did not allege willfulness or malice.

2015Such a 10 burden, if imposed, would make an innocent landowner a virtual insurer against natural hazardous conditions . . . which could cause injury to recreational users." (Charpentier v. Von Geldern (1987) 191 Cal.App.3d 101, 111 [owner not liable to trespasser injured by diving in a shallow portion of a river on owner's property].) We conclude the trial court properly found no evidentiary support for the willful failure to warn exception to the recreational use immunity of section 846 and the statute bars the Ritchies' claims.

2009Negligence is insufficient to overcome Civil Code section 846 immunity.” (Bacon, supra, 53 Cal.App.4th at p. 859 .) Charpentier v. Von Geldern, supra, 191 Cal.App.3d 101 , cited in Calvillo, involved a defendant who owned land bordering the Feather River.

1983Furthermore, while the amendment manifests an intent to abrogate case law declining to extend section 846 immunity to nonpossessory interests such as easements (Stats. 1980, Summary Digest to ch. 408, p. 110; cf. Darr v. Lone Star Industries, Inc. (1979) 94 Cal.App.3d 895, 901 [ 157 Cal.Rptr. 90 ]), the legislative expansion in favor of such interests does not affect the principle with which we are concerned here: the primacy of constitutionally assured public access to and use of navigable waters over the claims to immunity of owners of real property adjacent or contiguous to navigable waters

1983Furthermore, while the amendment manifests an intent to abrogate case law declining to extend section 846 immunity to nonpossessory interests such as easements (Stats. 1980, Summary Digest to ch. 408, p. 110; cf. Darr v. Lone Star Industries, Inc. (1979) 94 Cal.App.3d 895, 901 [ 157 Cal.Rptr. 90 ]), the legislative expansion in favor of such interests does not affect the principle with which we are concerned here: the primacy of constitutionally assured public access to and use of navigable waters over the claims to immunity of owners of real property adjacent or contiguous to navigable waters

2022(See Manuel v. Pacific Gas & Electric Co. (2009) 173 Cal.App.4th 927, 947 [willful misconduct involves a positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences].) Accordingly, we conclude that the evidence presented by Central Valley was sufficient to carry its burden of negating the willful misconduct exception to the section 846 immunity.

2016(Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 857 [ 62 Cal.Rptr.2d 16 ] [holding negligence in maintaining barrier was not enough to abrogate § 846 immunity]; see also Manuel v. Pacific Gas & Electric Co. (2009) 173 Cal.App.4th 927 [ 93 Cal.Rptr.3d 9 ] [compiling cases].) Here, the moving papers did not need to address willfulness or malice, because the complaint did not allege willfulness or malice.

2017Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1218 , footnote 3 [ 117 Cal.Rptr.3d 342 , 241 P.3d 840 ]; see also Lee v. Hanley (2015) 61 Cal.4th 1225, 1235 [ 191 Cal.Rptr.3d 536 , 354 P.3d 334 ] (considering same). 15 The landowner in Darr was the State of California, which has no immunity under section 846.

2017Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1218 , footnote 3 [ 117 Cal.Rptr.3d 342 , 241 P.3d 840 ]; see also Lee v. Hanley (2015) 61 Cal.4th 1225, 1235 [ 191 Cal.Rptr.3d 536 , 354 P.3d 334 ] (considering same). 15 The landowner in Darr was the State of California, which has no immunity under section 846.

2017(See Johnson , at p. 316 [rejecting interpretation that would “encourage an injured recreational user to claim that nearly any rule, restriction or regulation imposed by a landlord” granting free access would abrogate immunity]; Mansion v. U.S., supra, 945 F.2d at p. 1119 [rejecting interpretation that “would expand ad absurdum allowing the exception to effectively swallow the rule”].) Here, though, all we decide is that payment of any consideration for permission to enter property for a recreational purpose abrogates the immunity under section 846 for anyone potentially responsible for the pl

2017(See Johnson, at p. 316 [rejecting interpretation that would “encourage an injured recreational user to claim that nearly any rule, restriction or regulation imposed by a landlord” granting free access would abrogate immunity]; Mansion v. United States, supra, 945 F.2d at p. 1119 [rejecting interpretation that “would expand ad absurdum allowing the exception to effectively swallow the rule”].) Here, though, all we decide is that payment of any consideration for permission to enter property for a recreational purpose abrogates the immunity under section 846 for anyone potentially responsible fo

2017This case arises from the same incident as Pacific Gas & Electric Co. v. Superior Court (2017) 10 Cal.App.5th 563 , 216 Cal.Rptr.3d 426 , in which we addressed a co-defendant's claim of recreational use immunity under Civil Code section 846.

2017This case arises from the same incident as Pacific Gas & Electric Co. v. Superior Court (2017) 10 Cal.App.5th 563 , 216 Cal.Rptr.3d 426 , in which we addressed a co-defendant's claim of recreational use immunity under Civil Code section 846.

2022(New, supra, 171 Cal.App.3d at p. 688 .) Central Valley’s separate statement of undisputed material facts asserts that Central Valley did not charge Luke or anyone else an entry fee, or any other consideration, for permission to enter the Property.

1997A landowner’s conduct becomes willful or malicious only if three elements are present: “ ‘(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.’ ” (New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 689-690 [ 217 Cal.Rptr. 522 ], quoting Morgan v. Southern Pacific Trans.

1993In Wineinger v. Bear Brand Ranch, supra, 204 Cal.App.3d 1003 , the Court of Appeal denied section 846 immunity to the owner of a housing tract under development on the ground that the owner had attempted to restrict access to the property by erecting barricades, “no trespassing” and “road closed” signs.

1993Although no actual construction had taken place on the lot where the accident occurred and the area had recently been "pastureland," the court nevertheless held that because the property could not be characterized as "undeveloped," recreational use was unsuitable and therefore section 846 immunity was precluded as a matter of law. ( Id. at p. 1070; [7] see also Wineinger v. Bear Brand Ranch, supra, 204 Cal. App.3d at p. 1010 [unpaved road in development project unsuitable for recreational use by minor in modified land cruiser].) (5a) The Court of Appeal in this case also premised its holding o

2019Indeed, Civil Code "[s]ection 846 does not apply to public entities." (Pacific Gas & Electric Co. v. Superior Court (2017) 10 Cal.App.5th 563, 568, fn. 3 , italics added; see Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 704 .) Loeb also argues that because the Park "attracts paying users, the purpose of section 831.4 no longer applies," as it "is unlikely the threat of litigation will cause the responsible government entity to close the property." A similar argument was recently rejected in Lee, where the plaintiff asserted that the "revenue-generation" afforded by her

2017(See Delta Farms, supra, 33 Cal.3d at pp. 704–709.) However, both Darr and the Legislature’s responsive amendment in 1980 predated the Supreme Court’s ruling in Delta Farms that public entities are not covered by section 846. 18 appears to be true, for example, of the excavation contractor in O’Shea who built up a dangerous dirt pile.

2017Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1218 , footnote 3 [ 117 Cal.Rptr.3d 342 , 241 P.3d 840 ]; see also Lee v. Hanley (2015) 61 Cal.4th 1225, 1235 [ 191 Cal.Rptr.3d 536 , 354 P.3d 334 ] (considering same). 15 The landowner in Darr was the State of California, which has no immunity under section 846.

2017Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1218 , footnote 3 [ 117 Cal.Rptr.3d 342 , 241 P.3d 840 ]; see also Lee v. Hanley (2015) 61 Cal.4th 1225, 1235 [ 191 Cal.Rptr.3d 536 , 354 P.3d 334 ] (considering same). 15 The landowner in Darr was the State of California, which has no immunity under section 846.

2009(Jackson, supra, 94 Cal.App.4th at p. 1113 .) The court concluded that (1) based on the undisputed facts, Jackson’s attempted retrieval of the kite was, as a matter of law, a recreational use of property within the contemplation of section 846; and (2) there were no facts supporting application of section 846’s enumerated exceptions to immunity.

2005Appeals Bd. (1973) 10 Cal.3d 222, 230 [ 110 Cal.Rptr. 144 , 514 P.2d 1224 ] [noting “fundamental rule” that a court “ ‘should ascertain the intent of the Legislature so as to effectuate the purpose of the law’ ”]; Hubbard, supra, 50 Cal.3d at p. 197 [“the Legislature clearly intended ... to immunize private owners of easements . . . from tort liability to recreational users”]; cf. Jackson v. Pacific Gas & Electric Co. (2001) 94 Cal.App.4th 1110, 1117 [ 114 Cal.Rptr.2d 831 ] [upholding section 846 immunity for utility company that held easement for placement of utility poles on private land of

2000"Negligence is insufficient to overcome Civil Code section 846 immunity." Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 859 , 62 Cal. Rptr.2d 16 .) Negligent Supervision Shipman argues that his claim of negligent supervision survives the immunity provisions of section 846, citing the general rule that an employer may be liable to a third person for such negligence. (§ 2338; Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967-968 , 227 Cal.Rptr. 106 , 719 P.2d 676 ; Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1480 , 12 Cal.Rptr.2d 114 .) Assuming that Boethin

2000"Negligence is insufficient to overcome Civil Code section 846 immunity." Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 859 , 62 Cal. Rptr.2d 16 .) Negligent Supervision Shipman argues that his claim of negligent supervision survives the immunity provisions of section 846, citing the general rule that an employer may be liable to a third person for such negligence. (§ 2338; Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967-968 , 227 Cal.Rptr. 106 , 719 P.2d 676 ; Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1480 , 12 Cal.Rptr.2d 114 .) Assuming that Boethin

2000"Negligence is insufficient to overcome Civil Code section 846 immunity." Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 859 , 62 Cal. Rptr.2d 16 .) Negligent Supervision Shipman argues that his claim of negligent supervision survives the immunity provisions of section 846, citing the general rule that an employer may be liable to a third person for such negligence. (§ 2338; Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967-968 , 227 Cal.Rptr. 106 , 719 P.2d 676 ; Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1480 , 12 Cal.Rptr.2d 114 .) Assuming that Boethin

2000"Negligence is insufficient to overcome Civil Code section 846 immunity." Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 859 , 62 Cal. Rptr.2d 16 .) Negligent Supervision Shipman argues that his claim of negligent supervision survives the immunity provisions of section 846, citing the general rule that an employer may be liable to a third person for such negligence. (§ 2338; Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967-968 , 227 Cal.Rptr. 106 , 719 P.2d 676 ; Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1480 , 12 Cal.Rptr.2d 114 .) Assuming that Boethin

1993(Paige v. North Oaks Partners, supra, 134 Cal.App.3d at p. 865 .) Some have suggested that the “suitability” exception is limited to active construction sites.

1990With certain exceptions not relevant here, section 846 states, “An owner of an 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.” The phrase “recreational purpose” includes “such activities as . . . riding, including . . . all . . . types of vehicular riding . . . .” “Section 846 was enac

1993One court, for example, focused on the acute need for recreational areas in urban settings to conclude that a vacant, weed-covered lot adjacent to a residential center was "suitable" for recreation. ( Valladares v. Stone, supra, 218 Cal. App.3d at pp. 369-370.) Another has implied that section 846 immunity is intended primarily for large tracts of rural or semirural land. ( Paige v. North Oaks Partners, supra, 134 Cal. App.3d at p. *1107 865.) Some have suggested that the "suitability" exception is limited to active construction sites. ( Domingue v. Presley of Southern California, supra, 197 C

1990(Board of Supervisors v. Archer, supra, 18 Cal.App.3d at 725-726.) More significantly, a license to do an act or acts on private property has been held to constitute a property interest for section 846 immunity purposes (see Colvin v. Southern Cal. Edison Co. (1987) 194 Cal.App.3d 1306, 1312-1314 [ 240 Cal.Rptr. 142 ] [license or easement to place utility poles]; O’Shea v. Claude C.

2022(See People v. Lopez (2003) 31 Cal.4th 1051, 1060 [terms known to the common law are presumed to have their common law meaning]; Arnett v. Dal Cielo (1996) 14 Cal.4th 4 , 19–20 [same is true even where term also has colloquial meaning in everyday speech].) And this question about the scope of the (d)(3) exception naturally leads to a more fundamental question about the scope of the statute’s general rule: whether social guests fall within the category of 7 In this court, Mikayla has for the first time briefly alluded to a “social guest exception” to section 846 immunity — but without developin

2019Indeed, Civil Code "[s]ection 846 does not apply to public entities." (Pacific Gas & Electric Co. v. Superior Court (2017) 10 Cal.App.5th 563, 568, fn. 3 , italics added; see Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 704 .) Loeb also argues that because the Park "attracts paying users, the purpose of section 831.4 no longer applies," as it "is unlikely the threat of litigation will cause the responsible government entity to close the property." A similar argument was recently rejected in Lee, where the plaintiff asserted that the "revenue-generation" afforded by her

2017Yet in many cases someone with a nonpossessory right to access and use property might bear greater responsibility for creating a dangerous condition than the actual owner, as 14 See Elsner v. Uveges (2004) 34 Cal.4th 915, 934, fn. 19 (“we have routinely found enrolled bill reports, prepared by a responsible agency contemporaneous with passage and before signing, instructive on matters of legislative intent”); accord, Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1218, fn. 3 ; see also Lee v. Hanley (2015) 61 Cal.4th 1225, 1235 (considering same). 15 The landowner in Darr was the State of

2010See, e.g., Mattice v. U.S. (9th Cir. 1992) 969 F.2d 818, 820-821 (§ 846 applied to paved secondary access road in national park); Termini v. U.S. (9th Cir. 1992) 963 F.2d 1264, 1265-1266 (§ 846 applied to Forest Service road in Angeles National Forest); Phillips v. U.S. (9th Cir. 1979) 590 F.2d 297 , 299-300 (Forest Service promotional literature was not “express invitation” to enter national forest); see also Ravell v. U.S. (9th Cir. 1994) 22 F.3d 960, 962-963 (invitation to general public to attend air show on military base was not “expressQ invit[ation]” to injured spectator); Johnson v. Un

2010See, e.g., Mattice v. U.S. (9th Cir. 1992) 969 F.2d 818, 820-821 (§ 846 applied to paved secondary access road in national park); Termini v. U.S. (9th Cir. 1992) 963 F.2d 1264, 1265-1266 (§ 846 applied to Forest Service road in Angeles National Forest); Phillips v. U.S. (9th Cir. 1979) 590 F.2d 297 , 299-300 (Forest Service promotional literature was not “express invitation” to enter national forest); see also Ravell v. U.S. (9th Cir. 1994) 22 F.3d 960, 962-963 (invitation to general public to attend air show on military base was not “expressQ invit[ation]” to injured spectator); Johnson v. Un