United States: Wang V. Nibbelink: A Landowner's Immunity From Liability For Injuries Caused By A Recreational Activity Expanded To Uninvolved Persons On Adjacent Property

It is well-settled in California that a landowner is immune from liability for injuries caused  to recreational users on the landowner's property so long as: (1) the landowner did not willfully or maliciously fail to guard against a dangerous condition; (2) permission was not granted for consideration; or (3) the landowner did not expressly invite persons onto the property for the recreational use, as opposed to merely permitting them to enter the premises. Under such conditions, a landowner has no duty to a recreational user on his or her property to keep the property safe for recreational users, nor a duty to warn recreational users of hazards on the property. The purpose of such immunity was to promote the use of private lands by members of the public for recreational use.

In the recent case of Wang v. Nibbelink (2016) 4 Cal. App. 5th 1, the California Court of Appeal articulated that said immunity extends to injuries sustained by persons not involved in the recreational activity on adjacent property.

A. Wang v. Nibbelink

In Wang, a landowner allowed event organizers and participants of the Wagon Train, an annual historical event simulating Old West travel by stage coach, to use their property for overnight camping and horse containment. A horse that was part of Wagon Train escaped from the landowners' property to the Strawberry Lodge, an adjacent property, and trampled a woman who had just gotten out of her car with her husband to dine at the lodge. Plaintiffs husband and wife brought a negligence claim against the landowners, who ultimately filed a motion for summary judgment asserting Civil Code Section 846 statutory immunity, which was granted, and subsequently affirmed. In reaching its holding, the California Court of Appeal focused on the following portion of Civil Code Section 846:

An owner of any estate or any other interest in real property, whether possessory or non-possessory, 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 such 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 such person to whom permission has been granted except as provided in this section. (Emphasis added.)

According to the Wang court, the highlighted portion of the statute "'adds an additional immunity' that "shields the landowner from liability for injuries caused by (rather than to) recreational users."1 Thus, a landowner's immunity from liability is not limited to someone who is injured on the landowner's property, but also someone who is injured off of the landowner's property by that activity (i.e., the plaintiff who was trampled by the horse at Strawberry Lodge).2 Had the Legislature intended otherwise, it would have narrowed the scope of that section as the Legislature did in elsewhere in Section 846.3 Consequently, the court held that the immunity applies to off-premises injuries to persons uninvolved in the recreational use caused by recreational users, even where the plaintiff also alleges that the landowner's negligence regarding its own property-based duties contributed to the injury.4

B. How to Invoke the Civil Code Section 846 Defense

To invoke the immunity established by Civil Code section 846, the injury-causing activity must have a "recreational purpose," whether expressly enumerated by the statute, or simply something that "refresh[es] the body or mind by diversion, amusement, or play."

Defense counsel then must attempt to develop evidence that the exceptions to the immunity articulated in Section 846 do not apply (i.e., (1) that the landowner's failure to guard against a dangerous condition, use, structure, or activity was not willful or malicious, (2) that permission to enter onto the property for a recreational purpose was not for consideration other than that received by the landowner from the state, or for consideration received from others for the same purpose, or (3) that the injured person was not "expressly invited" onto the landowner's property.)

Finally, as with any affirmative defense, Section 846 must be plead as such in one's answer. In Wang, the landowners failed to plead Section 846 as an affirmative defense, and Plaintiffs argued that the landowners waived the defense. Nonetheless, the trial court granted the landowners leave to amend their answer to plead Section 846.5 The Court of Appeal commented that while a defendant must assert an affirmative defense, such as a statutory immunity, in the answer to the complaint or else the defense is waived, an exception may exist where the complaint alleges facts indicating applicability of the defense, or where the affirmative defense is raised and met on the merits during a summary judgment proceeding.6 Thus, while it appears that courts may be willing to overlook a defendant's failure to plead the immunity as an affirmative defense in the answer, the "best practice" is to plead it, or if necessary, seek leave to amend one's answer prior to the hearing on the anticipated motion for summary judgment.

Often recreational activities have the potential to bring with them serious injuries to the participants, spectators, and/or those nearby. With serious injuries come serious exposure, and defendants are best served by counsel knowledgeable in this specialized field of law, keenly aware of both the substantive and procedural hurdles that can arise in this type of case. It can hardly be disputed that the team's chance of victory is highest when the baton is passed to the right runner.

Footnotes:

1 Wang, 4 Cal. App. 5th at 14 (emphasis added).

Id. at 17.

Id.

Id. at 22.

Id. at 10.

Id.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.