California, like most states, has enacted a statute (Civil Code section 846) which provides that property owners have no duty to maintain their premises in a manner that makes them “safe” for recreational users of the land. The statute was intended to encourage landowners to make their property available for recreational use without fear of exposure to liability, and California courts have, in a number of cases, read the statute expansively to promote that goal. One decision, by an intermediate California appellate court (Shipman v. Boething Treeland Farms, Inc., 77 Cal.App.4th 1424 (2000), held that “recreational use immunity” barred a claim by a recreational user that he was injured by the landowner’s negligent operation of a motor vehicle on the property.
In Klein v. United States of America, __Cal.4th__ (July 26, 2010), plaintiff was riding a bicycle on a paved road in a National Forest when he was struck by a vehicle driven by a Park Service employee. Under governing law, the liability of the United States was controlled by California tort principles. A lawsuit was brought in federal district court, where summary judgment was granted in favor of the government based upon Shipman and other California authorities applying Section 846. On appeal, the Ninth Circuit certified to the California Supreme Court the question whether Section 846 immunizes the landowner from negligent activities on the premises, or only from claims arising out of the nature and condition of the property itself. The Ninth Circuit questioned whether Shipman was correctly decided, suggesting that the reasoning of certain Supreme Court opinions, while not directly on point, questioned its validity.
The Supreme Court, in a 4-3 decision, held that Section 846 does not bar claims based on the landowner’s negligent activities on the premises, finding that the statutory language (the “owner . . .owes no duty of care to keep the premises safe for entry or use . . .”) plainly refers only to the condition of the property, not to negligent acts causing injury. Shipman was expressly disapproved. A vigorous dissent argued that this reading was inconsistent with the language and purpose of the statute, and would lead to inequitable and illogical results. In several prior instances where the courts have circumscribed the reach of Section 846 the Legislature has stepped in to amend the statute if it disagrees, and we view the dissent as an invitation the Legislature to do so again here.
In the short term, Klein unquestionably will make it more difficult in many cases to obtain pre-trial dismissal of claims that would have been, under earlier decisions, barred by recreational use immunity. Plaintiffs’ counsel will undoubtedly cast what normally would be considered a premises liability claim as one arising out of a negligent activity; for example, the negligent condition of a property will be said to arise from negligent design, construction, or maintenance. Where the courts will draw the line between condition and activity remains to be seen, and will remain uncertain for the foreseeable future.