Law Review: Dangerous condition of public property law vs. trail immunity law |

Law Review: Dangerous condition of public property law vs. trail immunity law

Today we have a fun case to discuss. It involves two seemingly unrelated laws you should know about. Public agencies are liable if they maintain a dangerous condition on their (public) property, while, on the other hand, public agencies are not liable for injuries caused while the public is using its trails, the Trail Immunity Statute.


Lorin Toeppe and her boyfriend were walking through Mission Bay Park, the largest man made aquatic park in the country, when a branch fell off a eucalyptus tree and struck Toeppe, causing serious injuries. Toeppe sued citing Government Code 830: San Diego regularly maintained its public property in a dangerous condition which caused her severe injuries. Clear liability.


San Diego defended Toeppe’s lawsuit claiming immunity under the Trail Immunity Law: 831.4 of the Government Code.

The law was enacted to encourage public entities to open their property for public recreational use. If a trail is used for fishing, hunting, hiking, and a whole list of other recreational activities, the public entity is not liable for injuries. Solid public policy. Under case law, the immunity applies whether the trail is paved or not.


What we have here is a failure to communicate. And, if not that, two seemingly inconsistent laws. One suggests liability for San Diego while the Trail Immunity Law gives San Diego immunity, at least if Toeppe was on the trail, which was claimed but disputed.

The trial court ruled for San Diego concluding the Trail Immunity Law trumped the Public Liability Law. If you’re injured on a public trail on public property, you have no claim against the agency for your injuries.


The Court of Appeal noted that Toeppe claimed the eucalyptus branch fell because San Diego failed to properly maintain the eucalyptus trees in the Park (i.e. she did not claim her injuries were based on the design location or condition of the trail, which is the substance of the Trail Immunity Statute).

Here’s what the Court wrote: “…the dangerous condition (of a negatively maintained eucalyptus) is independent of the trail through Mission Bay Park. It is possible for a visitor to the park to be injured by a falling tree whether she used a trail or simply walked across the grass and was struck by a falling branch.”

The falling tree had little or nothing to do with the condition of the public trail, and therefor San Diego was not entitled to the Trail Immunity defense. Plaintiff Toeppe still has to prove San Diego was negligent in failing to maintain the trees, but she will have her day in court.

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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