No trespassing signs. Barbed wire. Concrete blocks. Landowners everywhere are concerned about premises liability. I frequently drive by an empty lot in Camarillo, CA that dirt bike riders use to romp around in and the inner lawyer thinks about putting up a post with a business card holder on the edge of the lot. In Camarillo, many areas that used to be bastions for hikers, horseback riders, and dirt bikers are now off limits. Besides increased development of places like Spanish Hills, Sterling Hills, and Santa Rosa Valley, local residents have increasingly blocked portions of their property that used to “cut through” to horse trails. These landowners are understandably concerned about liability, however, local residents are increasingly unable to enjoy the rural lifestyle traditionally afforded in the Ventura County area.
But do landowners really need to be so concerned? Maybe.
Little known California Civil Code § 846 (as passed in 2007) comes to the rescue of both the recreationally-inclined and landowners. Stop the barbed wire! The statute effectively gives landowners immunity from liability for accidents that occur on their property as long as the user of their land was conducting a recreational activity and there was no consideration (payment). Great! The statute gives examples of what recreational activities are covered, but the list is rather all-inclusive, including, “such activities as fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.”
So landowners can relax and cut the barbed wire right? Well, not so fast. There is no case on point as to whether § 846 trumps common law liability for creating an attractive nuisance. Arguably, having BMX moguls on one’s dirt lot are an attractive nuisance that encourages dirt bike riding and an attractive nuisance action may still be valid in spite of § 846. In addition, landowners still have to be concerned that opening their properties up to use by others may create easements. As a result, they may be unable to stop future use or their properties may have a lower value upon sale. There is also the strange, but interesting non-recreational liability exception to § 846.
In a recent Los Angeles case, the defendant was a nonprofit organization that owns several properties. On the edge of one of the properties was a severe drop in topography. The land suddenly dropped 10+ feet. There were no signs or fences blocking entry from the other side of the property. Nearby the property a burglar was being chased by a mounted LAPD officer. Yes, LAPD does still uses mounted officers. The burglar jumped onto the property owned by the nonprofit, across the portion where the 10+ foot drop in land is located. Riding in the dark, the mounted officer took his horse over this drop, only to have to horse roll on top of him, ultimately paralyzing him. Section 846 was of no help to the nonprofit, since the statute only covers recreational, not occupational horseback riding. As sad and devastating as the accident was for the police officer’s family, the accident was also a pecuniary disaster for the nonprofit.
So, don’t build an attractive nuisance, put up a notice instructing parties that there is no easement created and that they are using the property against your wishes (even though you are secretly okay with it), keep out mounted police officers or anyone else not acting recreationally, and you should be good.
Or you could just build a fence.