Law Review: Immunity from injuries while on public trails |

Law Review: Immunity from injuries while on public trails

California has two so-called recreational immunity laws, both adopted in 1963. The Recreational Use Statute makes private landowners immune from liability for injuries suffered by anyone who enters their land free of charge for recreational purposes. Civil Code section 846.

Government Code section 831.4 provides comprehensive protection for public entities from lawsuits filed by citizens using public roads and trails for recreational purposes. Both laws are sound public policy.


Bootjack Campground, located in Mt. Tamilpais State Park, is owned by the California State Department of Parks and Recreation. From the nearest parking lot, there are two ways to access Bootjack Campground: a winding stairway built into a hill, and a longer ADA-compliant path. The stairway is relatively flat and wide, but with occasional steps made with natural materials as it winds through a wooded hillside.

In August 2015, Michele Lee fell and injured herself as she descended the stairway/trail from the campground to the parking lot. She broke her ankle in three places.

Lee sued State Parks claiming the stairway was a dangerous condition on public property. The trial court ruled for State Parks based upon the trail immunity statute. Lee appealed.


Section 831.4 – the “trail immunity” statute, provides that a public entity is not liable for an injury caused by a condition of: “(a) Any unpaved road which provides access to fishing, hunting, camping, hiking, riding, …watersports, recreational or scenic areas…(b) Any trail used for the above purposes.”

In a series of cases, California courts have expounded on section 831.4 determining the immunity attaches to trails “providing access to” recreational activities and the immunity applies to paths regardless of whether they are paved or unpaved. One court determined that the “nature of the trail’s surface is irrelevant to questions of immunity.”

Lee argued that the trail to Bootjack Campground was a “stairway” not a trail.


The First Appellate District Court of Appeal agreed with the trial court finding that the Bootjack stairway, while it had steps of natural materials, is a trail or at least an integral part of a trail within the meaning of section 831.4. State Parks prevails.


The California Torts Claims Act allows public entity defendants to be reimbursed attorney’s fees if the court determines the lawsuit was not brought “with reasonable cause and in the good faith belief that there was a justifiable controversy under the facts and laws.”

The trial court found Lee’s lawsuit unreasonable and allowed State Parks to recover half of its attorney’s fees – $22,140.

The Court of Appeal overturned the award of fees finding that, until this court ruling, it was not settled law in California that stairways are treated as trails and therefore provide immunity to public entities like State Parks. Lee had reasonable cause to file her suit.

The trial court’s award of attorney fees to State Parks is overturned.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at or

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