A 12-year-old severely injured by a 75-foot tree that fell on his tent while he was camping sued PG&E, which owned and maintained a power line in the San Mateo County Memorial Park. The trial court denied the company’s motion for summary judgment under the state’s recreational use immunity statute, codified by California Civil Code section 846. Section 846 grants property owners immunity from tort liability stemming from the use of their property for recreational purposes. The First District Court of Appeal held the company was not immune from suit because the camper paid a fee to San Mateo County.
The tree was located approximately 30 to 40 feet from PG&E’s power line, within striking distance of the line had it fallen in that direction. PG&E owned and maintained a power line in the county park, and it had a license allowing it to enter the park for the maintenance and inspection of its equipment. The boy’s family paid a fee to enter the park but did not pay PG&E. However, San Mateo County paid PG&E regularly for electricity.
The First District Court of Appeal was tasked with deciding whether PG&E retained its immunity pursuant to section 846, regardless of the boy’s family paying the camping fee. (It was undisputed that section 846 otherwise applied to PG&E as a licensee of the park’s owner.) PG&E contended that it retained immunity and asked the court to interpret the consideration exception to apply only when the defendant received the consideration. The exception’s application to the current case, in which PG&E received none of the consideration, presented an issue of first impression under California law.
Section 846 applies to private owners of easements and of revocable licenses. It immunizes owners of any interest in real property, regardless of whether the interest includes the right of exclusive possession. Section 846 does not confer to holders of non-possessory interests absolute immunity from premises liability to paying recreational visitors of property (save for willful and malicious misconduct) in circumstances in which even the property’s owner would not be immune. The consideration exception, located in the fourth paragraph of the statute, prescribes that when an individual pays consideration for permission to enter property for a recreational purpose, immunity does not apply.
The appeals court rejected PG&E’s suggested interpretation of section 846. The court concluded that the consideration exception did apply to PG&E, even though the boy’s family paid consideration to the county, rather than to PG&E. The court held that paying consideration in exchange for permission to enter recreational property nullified immunity under section 846 for anyone potentially liable for the plaintiff’s injuries. This includes a licensee with only a limited right to use the premises but no right to control the access of third parties.
The appeals court reasoned that the interpretation suggested by PG&E, which would make immunity contingent on the receipt of consideration (rather than the payment of consideration), was not supported by the statute or its legislative history. Section 846, the court reasoned, was enacted to promote free access to property to the public for recreational purposes. The legislative history indicated the legislature intended to put the holders of non-possessory property interests merely on an equal footing with property owners but not confer on them immunity for its own sake, divorced from the statute’s underlying purpose. Every indication is the legislature sought only to correct an anomalous result rather than to create one. PG&E’s suggested interpretation, however, would create anomalous results.
The appeals court therefore affirmed the trial court’s denial of PG&E’s motion for summary judgment asserting section 846 immunity. The petition for a writ of mandate or prohibition was denied.
The premises liability lawyers at Neumann Law Group represent victims throughout the Los Angeles area. Call us at (213) 227-0001 for a free consultation.
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