Jim Porter: Keeping rec facilities open to public
November 21, 2013
This week you get a twofer — two Law Reviews squeezed into one. That's the good news. The bad news is we're not skipping next week's column.
Two new Court of Appeal cases discuss what happens if someone is injured on public property, specifically, on a trail and in the second case, on a public boat ramp.
TRIPPING ON A PUBLIC TRAIL
Ana Maria Montenegro was walking along a paved public pathway when she tripped on a protruding tree trunk. The pathway was frequently used by horseback riders and for hiking and was used as access to other recreational areas.
Can Ana Montenegro sue the City of Bradbury? Of course she can sue — anyone can sue. The real question is can she successfully sue? Don't you love that humor?
REC TRAIL IMMUNITY
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A public entity is generally liable for an injury caused by a dangerous condition on its property if the entity had notice of the dangerous condition.
However, there is no governmental liability for injuries caused by "Any unpaved road which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas … or any trail used for the above purposes." Government Code § 831.4.
The public policy behind governmental immunity for recreational roads and trails is to encourage them by discouraging lawsuits. I like it.
You sharp readers, if any, are asking, "can a trail be paved?" That question was answered by court rulings that any trail or path specifically developed for recreational users, whether in its natural condition, in an urban location, paved or unpaved qualifies for the immunity.
Here's my favorite quote from the Court: "No doubt it is cheaper to build fences and keep the public out than to litigate and pay three, four, five or more judgments each year in perpetuity. But that would deprive the public of access to recreational opportunities. If public entities cannot rely on the immunity for recreational trails, they will close down existing trails and perhaps entire parks where those trails can be found." Judgment for the City.
CASE 2: TREE FALLS
Our second case involves a man who was injured when a tree fell on him while he was using a boat ramp in Yolo County. This is a different governmental immunity public property case.
Dwight Meddock, a boater, was in the paved parking lot of the Elkhorn Boat Ramp in Elkhorn Regional Park owned by Yolo County.
A nearby (Fremont) cottonwood tree fell on him. He sued, arguing the tree was leaning over the parking lot and some of the nearby trees were diseased and infested with mistletoe. Yolo County claimed governmental immunity.
NATURAL CONDITION IMMUNITY
Government Code § 831.2 reads: "Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach."
The injured Meddock claimed he was on the County's paved boat ramp parking lot, which is improved, so the § 831.2 governmental immunity does not apply.
The Court of Appeal ruled for Yolo County, concluding Meddock's injuries were caused by decaying natural trees located on unimproved County property. County is immune from liability.
KEEP YOUR PARKS OPEN
The obvious public policy behind these court decisions upholding the Legislature's governmental immunity laws is to discourage lawsuits and keep public property open for public use.
There are similar immunities for private property owners allowing public access for recreational purposes. Good laws.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He may be reached at email@example.com or http://www.portersimon.com. Find them on Facebook.
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