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Law Review: The risk of running for fun

 

Jogging is hard. If you have ever competed in, or spectated at the finish line of, an endurance footrace, you know this to be true. Yet many a self-punishing martyr jog for recreational pleasure. For those who jog for fun, and do so on the property of another, a recent decision from the California Court of Appeal, Second Appellate District, in Shanna Rucker v. Wincal, LLC, serves as a cautionary tale.

On a November night in Los Angeles, Shanna Rucker set out on a six-mile jog to train for an upcoming half-marathon. While jogging through property owned by Wincal, LLC, Ms. Rucker encountered a homeless encampment that forced her to re-route her jogging path into the bike lane of an adjacent street. Unfortunately, while in the bike lane, Ms. Rucker was struck by a car and sustained serious injuries. Ms. Rucker subsequently filed a lawsuit for damages suffered from the collision and named Wincal as one of the defendants – arguing that Wincal knew of the unsafe condition on its property (the homeless encampment) and failed to maintain the property. Wincal succeeded in having Ms. Rucker’s claims against it thrown out before trial and Ms. Rucker appealed the trial court’s decision.

The main issue on appeal was whether the recreational immunity provisions of California Civil Code section 846 protect a landowner from liability when a person is injured while jogging on the landowner’s property. The California State Legislature enacted California Civil Code section 846 to protect landowners, and others in possession of real property, from legal liability for injury and death suffered by persons using private property for recreational purposes. The idea being that a landowner should not be held accountable to persons using private property without permission for pleasurable pursuits. Specifically, section 846 states, a landowner “owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions….” Section 846 then goes on to define “recreational purpose” to include an assortment of activities ranging from the obvious – hiking, riding, fishing, hunting – to some head scratchers – spelunking, gleaning, recreational gardening. Jogging did not make the cut.



As the list of activities in section 846 is not intended to be exhaustive, courts look to the totality of the circumstances to determine whether a particular activity is done for “pleasure or exercise” and is “intended to refresh the body or mind by diversion, amusement or play.” If the criteria are met, the activity is one done for a recreational purpose. On such criteria, the court of appeal held that Ms. Rucker was jogging for a recreational purpose and that, as a matter of law, Wincal cannot be held liable for Ms. Rucker’s injuries.

In reaching its decision, the Rucker court noted that Ms. Rucker was training for a half-marathon and was jogging for pleasure, exercise, and play. The court also concluded jogging is akin to hiking (an activity listed in section 846); and, as lawyers are keen to do, the court found similarities in the dictionary definitions of “jog” (“to go at a slow, leisurely, or monotonous pace”) and “hiking” (“to take a long walk for pleasure or exercise”). Putting aside the fact that running six miles in preparation for a half-marathon does not – to this columnist – sound particularly pleasurable or leisurely, the court’s holding in light of section 846’s recreational immunity protections is the correct one.



For Landowners and others in possession of real property, the Rucker decision serves as further legal insulation for claims brought by injured recreation-seekers. Fun-havers, on the other hand, should take heed that the more pleasurable the recreational pursuit, the weaker the legal claim against the landowner if injured. Litigation vs. laughter, if you will. And for all you recreational gardeners, please be safe out there.

Ravn R. Whitington is a partner at Porter Simon licensed in California and Nevada. Ravn is a member of the firm’s Trial Practice Group where he focuses on all aspects of civil litigation. He has a diverse background in trial practice ranging from complex business disputes to personal injury to construction law, and all matters in between. He may be reached at whitington@portersimon.com or http://www.portersimon.com. Like us on Facebook

 

Ravn R. Whitington

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