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.


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

Id. at 17.


Id. at 22.

Id. at 10.


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