by Sophie Rowlands
Many property owners are loathe to allow the public onto their land for any reason at all. That being said, many cities and counties routinely impose as a condition of approval a requirement that the project include publically accessible trails, maintained by the underlying property owner or homeowners’ association. The California legislature recognizes the potential hardship resulting from this situation, and has crafted special liability protections. Pursuant to Civil Code section 846, any landowner who permits the public to enter and use his land without charging a fee is completely absolved of all liability and responsibility when, as inevitably happens, a litigious member of the public gets injured for whatever reason on the property and decides to sue. Provided the owner didn’t willfully or maliciously fail to disclose some dangerous condition on the property, the statute is quite broad in its powers and has been interpreted to protect property owners from liability for injuries stemming from a wide range of activities, from spelunking to hunting to hang gliding.
Most importantly for Janice and Jeffrey Weitzen, who recently won a court battle in Miller v. Weitzen (2005) 133 Cal.App.4th 732, the statute operates to protect individuals who don’t even own the property but hold some other interest in it. The Weitzens’ only property interest in the place where the plaintiff was injured was an encroachment permit they held for their driveway where it crossed a piece of county land. The county parcel was used by horseback riders as part of a public trail system and as a result, horseback riders and other members of the public frequently crossed the Weitzens’ driveway. The problem arose when the Weitzens had occasion to resurface their driveway, which they did without a permit using a common resurfacing substance. Unfortunately, and unbeknownst to the Weitzens, the substance proved quite slippery for the steel-shod horses that had to walk across it. Plaintiff Marilyn Miller was riding her horse across the driveway when the animal slipped and fell and she severely injured her hand and wrist. She sued the Weitzens, as well as the Association that maintained the trails.
Both the trial court and the appellate court found that the Weitzens were immune from liability under the Civil Code section 846 without much trouble. The wording of the statute claims it applies to both the owner of an estate or the owner of “any other interest in real property, whether possessory or nonpossessory.” This has been interpreted to include holders of permits, easements, right-of-ways, and leases. Indeed, the Legislature had specifically added this language in 1980 after a court found against the holder of a right-of-way (the previous version of the statute had only protected owners of estate interests). Thus, the Weitzens could only be liable to Miller if she either directly or indirectly paid them a fee to cross their driveway, or if they willfully and maliciously failed to warn her about the dangerous condition.
The plaintiff claimed that because she paid fees to the Association that maintained the trails, and the Weitzens benefitted from the maintenance, she had indirectly paid the Weitzens a fee. The court didn’t buy it. After analyzing various cases which had construed the fee payment issue, the court found that the fee must be paid “in exchange” for permission to enter the property. In this case, the property was open to the public through its owner, the county. The Weitzens had no right to keep anyone off even if they had wanted to, and thus they also had no right to give anyone permission. The court did note, however, that the analysis might be different if the trail had been on privately owned land and the plaintiff had paid a maintenance fee.
So while California’s recreational use statute operates very favorably both landowners and holders of various property interests in these cases, on behalf of us horseback riders out there, I encourage anyone thinking about resurfacing their driveway to get a permit, and to try walking across it in steel shoes first. You just might save yourself a whole lot of trouble.
Sophie Rowlands is a law clerk with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.