Supreme Court of California Justia
Citation 50 Cal. 4th 68, 235 P.3d 42, 112 Cal. Rptr. 3d 722

Klein v. U.S.

Filed 7/26/10

IN THE SUPREME COURT OF CALIFORNIA

ALAN RICHARD KLEIN et al.,
Plaintiffs and Appellants,
v.
S165549
UNITED STATES OF AMERICA et al.,
9th Cir. No. 06-55510
C.D. Cal. No.
Defendants and Respondents. )
CV-05-05526-PA
____________________________________)

Plaintiff Alan Richard Klein was riding a bicycle for recreation on a two-
lane paved road in Angeles National Forest in Southern California when he was
struck head-on by an automobile driven by a part-time volunteer working for the
United States Fish and Wildlife Service. Having been seriously injured in the
collision, plaintiff sued the United States government (the owner of the national
forest land) and its volunteer worker.
At issue here is the scope and applicability of California‟s Civil Code
section 846, which provides, as relevant here, that a landowner “owes no duty of
care to keep the premises safe for entry or use by others for any recreational
purpose.” The Ninth Circuit Court of Appeals has asked this court to decide
whether this provision applies to “acts of vehicular negligence committed by the

1


landowner‟s employee in the course and scope of his employment that cause
personal injury to a recreational user of that land.”1
We conclude that Civil Code section 846‟s liability shield does not extend
to acts of vehicular negligence by a landowner or by the landowner‟s employee
while acting within the course of the employment. We base this conclusion on
section 846‟s plain language. The statutory phrase “keep the premises safe” is an
apt description of the property-based duties underlying premises liability, a
liability category that does not include vehicular negligence. Furthermore, a broad
construction of that statutory phrase would render superfluous another provision of
section 846 shielding landowners from liability for failure to warn recreational
users about hazardous conditions or activities on the land.
I
The facts are taken from the Ninth Circuit‟s order in Klein v. United States
(9th Cir. 2008) 537 F.3d 1027 requesting that this court decide a question of
California law.
On August 29, 2004, plaintiff Alan Richard Klein was riding his bicycle for
recreation on Bear Divide Road in Angeles National Forest in California. Bear
Divide Road is a two-lane paved road that is open to the public and that is owned
and maintained by defendant United States government. As plaintiff2 was cycling
northbound, he was struck head-on by an automobile driven by defendant David
Anderberg, a part-time volunteer for the United States Fish and Wildlife Service,

1
Rule 8.548(a) of the California Rules of Court provides: “On request of the
United States Supreme Court, a United States Court of Appeals, or the court of last
resort of any state, territory, or commonwealth, the [California] Supreme Court
may decide a question of California law if: [¶] (1) The decision could determine
the outcome of a matter pending in the requesting court; and [¶] (2) There is no
controlling precedent.”
2
Although both Alan Klein and his wife Sheryll Klein are plaintiffs in this
lawsuit, for convenience we use “plaintiff” in the singular to refer to Alan Klein.
2


who later told a California Highway Patrol officer that at the time of the collision
he had been on his way to observe birds.
The injuries plaintiff sustained in the collision were severe, including a
partially severed ear, broken ribs, a collapsed lung, a brain injury affecting
memory and speech, and a brachial plexis injury3 that permanently deprived him
of the use of his left arm. In addition to these physical injuries, the collision
resulted in a substantial loss of income, and thus serious financial hardship, to
plaintiff and his wife, coplaintiff Sheryll Klein. This occurred because plaintiff
was forced to take a medical retirement from his federal government job as an air
traffic controller, while his wife, so that she could provide care for plaintiff, took
an early retirement from her job as an elementary school principal.
After exhausting their administrative remedies, plaintiffs brought suit
against the United States and Anderberg in federal district court in the Central
District of California. The action against the United States was brought under the
Federal Tort Claims Act, which provides for liability “where the United States, if a
private person, would be liable to the claimant in accordance with the law of the
place where the act or omission occurred.” (28 U.S.C. § 1346(b)(1).) Against the
United States, plaintiffs alleged two negligence theories: (1) the United States
negligently maintained Bear Divide Road in an unsafe condition, and (2) the
United States was vicariously liable for the vehicular negligence4 of its volunteer
employee, David Anderberg. Only the latter negligence theory is at issue here.

3
The brachial plexus is a network of nerves running from the neck to each
arm and controlling the movement of certain chest and arm muscles. (See
Mosby‟s Medical Dict. (5th ed. 1998) p. 218.)
4
As we use it here, the term “vehicular negligence” means negligence in
driving a motor vehicle, as opposed to other forms of negligence involving a
vehicle, such as leaving the vehicle parked in an unsafe location or in an unsafe
condition.
3


In its answer to plaintiffs‟ complaint, the United States defended on the
ground that Civil Code section 846 shielded it, as owner of the United States
Forest Service land on which the accident had occurred, from any negligence
liability to a person, such as plaintiff, who was injured while using that land for
recreation. The United States also disputed plaintiffs‟ allegation that, at the time
of the accident, Anderberg was acting in the course and scope of his employment
as a Forest Service volunteer.
The United States filed a summary judgment motion, which the district
court granted. Regarding plaintiffs‟ negligence theory that the United States was
vicariously liable for Anderberg‟s vehicular negligence, the district court assumed
for purposes of ruling on the motion that at the time of the accident Anderberg was
a United States employee acting within the course and scope of his employment.
The district court concluded, nonetheless, that California‟s Civil Code section 846
immunized the United States, as a landowner, from liability for any injuries to
plaintiffs resulting from negligent driving by Anderberg.
Plaintiffs appealed to the Ninth Circuit Court of Appeals. Recognizing the
important issue of California law presented by this case, the Ninth Circuit
requested that we decide this question: Does section 846 immunize a landowner
from liability for acts of vehicular negligence committed by the landowner‟s
employee in the course and scope of his employment that cause personal injury to
a recreational user of that land?
II
In its order requesting that this court decide a question of California law,
the Ninth Circuit explained why it had concluded that the question had not been
authoritatively resolved under existing precedents. The Ninth Circuit‟s
explanation provides a useful background for resolving the legal question at issue.
4
The Ninth Circuit observed, preliminarily, that although the landowner in
this case happens to be the United States, under the Federal Tort Claims Act the
federal government is liable only if a private person would be liable in the same
circumstances under state law. Accordingly, the question to be decided is whether
Civil Code section 846‟s immunity would protect a private landowner from
liability for damages resulting from physical harm to a person who has entered the
landowner‟s property to engage in a recreational activity, when that harm was
caused by the vehicular negligence of the landowner or the landowner‟s employee.
(Klein v. United States, supra, 537 F.3d 1027, 1030.)
Regarding that question, the Ninth Circuit concluded that there was “ „no
clear controlling California precedent‟ squarely” addressing the issue. (Klein v.
United States, supra, 537 F.3d 1027, 1030.) The court recognized that an
intermediate state appellate court — Division Six of the Second Appellate District
Court of Appeal — had held, in Shipman v. Boething Treeland Farms, Inc. (2000)
77 Cal.App.4th 1424, that Civil Code section 846‟s landowner immunity does
extend to vehicular negligence. In Shipman, the plaintiff, a 16-year-old boy, was
driving an all-terrain vehicle along a dirt road on the defendants‟ private property
when his vehicle collided with a station wagon driven by the defendants‟
employee. The plaintiff sued the defendants, seeking damages for personal injury
suffered in the collision, basing the action in part on the theory that the defendants
were vicariously liable for negligent driving by their employee. The trial court
granted summary judgment for the defendants, and the plaintiff appealed. The
Court of Appeal affirmed, concluding that Civil Code section 846 shielded the
defendants from negligence liability for an injury to an uninvited recreational user
of their land, even an injury caused by vehicular negligence. (Shipman, supra, 77
Cal.App.4th at pp. 1428, 1432.)
5
The Ninth Circuit recognized that Shipman is squarely on point, and it
acknowledged that it generally accepts state intermediate appellate court decisions
in the absence of relevant precedent from a state‟s highest court. (Klein v. United
States, supra, 537 F.3d 1027, 1031-1032.) But the Ninth Circuit said that in this
particular instance it had found what it termed “convincing evidence” that this
court likely would disagree with the Court of Appeal‟s decision in Shipman.
(Klein, at p. 1032.) The Ninth Circuit explained that it had found nothing in Civil
Code section 846‟s language, or in the circumstances surrounding its enactment, to
indicate that it was intended to provide immunity for negligent driving or,
otherwise stated, that it was “anything more than a premises liability exemption
statute.” (Klein v. United States, supra, 537 F.3d 1027, 1032.)
Its doubts about Shipman‟s validity were also based, the Ninth Circuit
explained, on certain statements in this court‟s opinions in Ornelas v. Randolph
(1993) 4 Cal.4th 1095 (Ornelas) and Avila v. Citrus Community College Dist.
(2006) 38 Cal.4th 148 (Avila). (Klein v. United States, supra, 537 F.3d 1027,
1032-1034.)
In Ornelas, this court held that Civil Code section 846 immunized a
property owner from liability for personal injuries that eight-year-old Jose Ornelas
had sustained on the owner‟s property. The injuries occurred when other children
playing on top of old farm machinery that was stored on the defendant‟s property
dislodged a metal pipe that fell on the Ornelas child. (Ornelas, supra, 4 Cal.4th
1095, 1098.) This court rejected the argument, supported by earlier Court of
Appeal decisions, that Civil Code section 846 does not apply if the property on
which the injury occurred was, at the time of the injury, unsuitable for recreational
use. (Ornelas, supra, at p. 1108.) The Ninth Circuit found significance in this
court‟s explanation in Ornelas of the rationale for section 846 immunity: “One
who avails oneself of the opportunity to enjoy access to the land of another for one
6
of the recreational activities within the statute may not be heard to complain that
the property was inappropriate for the purpose.” (Ornelas, supra, at p. 1108.)
This description, the Ninth Circuit stated, “invokes the concept of premises
liability.” (Klein v. United States, supra, 537 F.3d 1027, 1033.)
Avila, the other decision of this court mentioned by the Ninth Circuit, did
not directly involve Civil Code section 846. Rather, it concerned the scope of
California‟s Government Code section 831.7, which immunizes public entities
from liability for injuries sustained during a “hazardous recreational activity.”5
But in Avila this court recognized that section 831.7‟s legislative history revealed
that it had been “designed to mirror Civil Code section 846‟s circumscription of
property-based duties.” (Avila, supra, 38 Cal.4th 148, 157.) For that reason, this
court in Avila gave some consideration to the scope of the immunity conferred by
section 846. The Ninth Circuit reasoned that what this court said in Avila about
section 846, although not binding as precedent, was relevant in determining how
this court would likely decide the question of California law regarding the scope
of section 846. (Klein v. United States, supra, 537 F.3d 1027, 1032-1033.)
In Avila, the plaintiff was a college student who had been struck in the head
by a pitched ball while at bat during an intercollegiate baseball game at a
community college. (Avila, supra, 38 Cal.4th 148, 152.) The plaintiff sued the
college, seeking damages for unspecified personal injuries caused by being hit by

5
Government Code section 831.7, subdivision (a), provides: “Neither a
public entity nor a public employee is liable to any person who participates in a
hazardous recreational activity, including any person who assists the participant,
or to any spectator who knew or reasonably should have known that the hazardous
recreational activity created a substantial risk of injury to himself or herself and
was voluntarily in the place of risk, or having the ability to do so failed to leave,
for any damage or injury to property or persons arising out of that hazardous
recreational activity.”
7


the baseball. (Id. at pp. 152-153.) He alleged that the pitcher had hit him
intentionally and that the college was negligent in failing to supervise and control
the pitcher. (Id. at p. 153.) In a demurrer to the plaintiff‟s complaint, the
defendant community college relied on Government Code section 831.7. The trial
court sustained the demurrer, but on the plaintiff‟s appeal, the Court of Appeal
reversed, concluding that section 831.7 did not apply under these circumstances.
(Avila, supra, at p. 153.) This court granted review.
Finding Government Code section 831.7‟s relevant language somewhat
ambiguous, this court reviewed the statute‟s legislative history to determine the
legislative intent underlying its enactment. This court stated its conclusion about
that legislative intent in these words, which the Ninth Circuit considered
particularly significant: “Thus, Government Code section 831.7 was adopted as a
premises liability measure, modeled on Civil Code section 846, and designed to
limit liability based on a public entity‟s failure either to maintain public property
or to warn of dangerous conditions on public property. Nothing in the history of
the measure indicates the statute was intended to limit a public entity‟s liability
arising from other duties, such as any duty owed to supervise participation in
particular activities.” (Avila, supra, 38 Cal.4th 148, 157-158.)
Ultimately, however, this court found it unnecessary to decide “whether the
immunity created by [Government Code] section 831.7 extends only to premises
liability claims.” (Avila, supra, 38 Cal.4th 148, 159.) Instead, this court reached
the narrower conclusion that “school-sponsored and supervised sports activities
are not „recreational‟ in the sense intended by the statute, and thus section 831.7
does not apply to immunize public educational entities from liability to students
for injuries sustained during participation in such activities.” (Ibid.)
Finally, to explain its request that this court decide whether Civil Code
section 846‟s immunity extends to vehicular negligence claims, the Ninth Circuit
8
stressed the potential impact the resolution of that issue would have, in these
words: “[I]t is of no small moment that the federal government owns millions of
acres of National Park and National Forest land within the state of California.
Shielding the United States from liability for the negligent driving, and possibly
for other negligent acts, of its employees on all of these lands may have substantial
and negative consequences for the many residents of and visitors to California
who make use of federal lands for recreational purposes.” (Klein v. United States,
supra, 537 F.3d 1027, 1033.)
III
In construing statutes, we aim “to ascertain the intent of the enacting
legislative body so that we may adopt the construction that best effectuates the
purpose of the law.” (Hassan v. Mercy American River Hospital (2003) 31
Cal.4th 709, 715; accord, Chavez v. City of Los Angeles (2010) 47 Cal.4th 970,
986; Coachella Valley Mosquito etc. District v. Cal. Public Employee Relations
Bd. (2005) 35 Cal.4th 1072, 1087.) We look first to the words of the statute,
“because the statutory language is generally the most reliable indicator of
legislative intent.” (Hassan v. Mercy American River Hospital, supra, at p. 715;
accord, Chavez v. City of Los Angeles, supra, at p. 986; People v. Toney (2004) 32
Cal.4th 228, 232.)
When the statutory text is ambiguous, or it otherwise fails to resolve the
question of its intended meaning, courts look to the statute‟s legislative history and
the historical circumstances behind its enactment. (Mejia v. Reed (2003) 31
Cal.4th 657, 663.) Finally, the court may consider the likely effects of a proposed
interpretation because “ „[w]here uncertainty exists consideration should be given
to the consequences that will flow from a particular interpretation.‟ ” (Ibid.,
quoting Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d
1379, 1387.)
9
We turn now to the text of Civil Code section 846 to determine its plain
meaning with regard to the statute‟s purpose.
A. Statutory Language
Civil Code section 846, in its first paragraph, defines the scope of the
immunity granted to California landowners, in these words: “An owner of any
estate or any other interest in real property, whether possessory or nonpossessory,
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, uses of,
structures, or activities on such premises to persons entering for such purpose,
except as provided in this section.” In its second paragraph, section 846 defines
“recreational purpose” by reference to a list of activities that qualify as
“recreational,” including among them all types of “vehicular riding.” In its third
paragraph, section 846 states that by allowing another to enter or use property for
recreation the property‟s owner does not “(a) extend any assurance that the
premises are safe for such purpose, or (b) constitute the person to whom
permission has been granted the legal status of an invitee or licensee to whom a
duty of care is owed, or (c) assume responsibility for or incur liability for any
injury to person or property caused by any act of such person to whom permission
has been granted except as provided in this section.” Finally, in its fourth
paragraph, section 846 provides three limitations on, or exceptions to, the
landowner immunity it has granted, stating that the immunity does not apply to
“willful or malicious failure to guard or warn against a dangerous condition, use,
structure or activity,” nor does it apply when permission to enter is granted for a
consideration, nor when persons are expressly invited rather than merely permitted
to enter the land.
10
Preliminarily, we observe that although Civil Code section 846 is
commonly referred to as an immunity provision, and although for convenience we
refer to it that way here, it is does not confer an immunity in the strictest sense of
that term, which is “a complete defense . . . [that] does not negate the tort.”
(Black‟s Law Dict. (1996 pocket ed.) p. 298; see Myers v. Philip Morris
Companies, Inc. (2002) 28 Cal.4th 828, 832, fn. 2.) Section 846 does not merely
eliminate a damage remedy for certain types of negligent conduct by a landowner.
The wording of section 846‟s first paragraph, providing that a landowner “owes no
duty of care” to persons using the land for recreation, either to maintain safe
premises or to warn of hazards, does indeed “negate the tort,” because the
existence of a duty owed to the injured person is an essential element of the
negligence tort. (See Paz v. State of California (2000) 22 Cal.4th 550, 559.)
By the plain meaning of the language in its first paragraph, Civil Code
section 846 absolves California landowners of two separate and distinct duties:
the duty to “keep the premises safe” for recreational users, and the duty to warn
such users of “hazardous conditions, uses of, structures, or activities” on the
premises. (Civ. Code, § 846, 1st par.) Section 846‟s third paragraph adds an
additional immunity, stating that by granting permission to enter for recreational
use a property owner does not extend any assurance that the premises are safe for
recreational use, confer on the recreational user the legal status of an invitee or
licensee, or assume responsibility for any injury that a recreational user may cause
to another person. This latter provision shields the landowner from liability for
injuries caused by (rather than to) recreational users.
Here, we are concerned only with the scope of the first of these immunities,
which absolves property owners of any duty to “keep the premises safe” for
recreational use. The allegations of plaintiffs‟ complaint do not implicate the
other forms of immunity afforded by Civil Code section 846. Plaintiffs have not
11
sued under a failure-to-warn theory, they have not alleged that plaintiff Alan Klein
relied on any assurance that the property was safe, they have not alleged that
plaintiff Alan Klein was an invitee or licensee, and they have not alleged that
another recreational user caused plaintiff Alan Klein‟s injuries. These other forms
of section 846 immunity are relevant here only insofar as they assist us in
construing the scope of the safe-premises immunity.
For three reasons, we conclude that the plain language of Civil Code
section 846‟s first paragraph, absolving landowners of the safe-premises duty,
supports the conclusion that section 846 does not relieve landowners of the duty to
avoid vehicular negligence. First, the phrase “keep the premises safe” is an apt
description of the property-based duties underlying premises liability, a liability
category that does not include vehicular negligence. Second, differences in the
statutory descriptions of the safe-premises immunity and the hazard-warning
immunity suggest that the former is considerably narrower in scope and does not
apply to activities like motor vehicle driving. Third, the expansive construction of
the safe-premises clause urged by the United States would render the hazard-
warning clause superfluous. We elaborate on these reasons.
As we have noted, Civil Code section 846, in its first paragraph, absolves
landowners of the duty “to keep the premises safe.” The United States urges us to
construe this provision as absolving landowners from any duty of care to refrain
from negligence in the conduct of activities, such as driving motor vehicles, on
their land. In other words, the United States would have us construe the duty “to
keep the premises safe” as being coextensive with the duty to use due care to
avoid injury to recreational users of their land, subject only to the three immunity
exceptions — willful or malicious conduct, entry granted for a consideration, and
express invitation — that are set forth in section 846‟s fourth paragraph. We
disagree.
12
First, it is unlikely that California‟s Legislature intended Civil Code section
846‟s premises-based language to be interpreted so broadly as to include any and
all factors that might create a personal injury risk on one‟s property. Had the
Legislature intended such a broad immunity, it would have been a simple matter to
provide in section 846 that landowners owe no duty of care to avoid personal
injury to persons using their land for recreation. By providing instead that a
landowner owes no duty to “keep the premises safe,” the Legislature has selected
language implying a narrower immunity, focused on premises liability claims
arising from property-based duties. As one Court of Appeal has explained,
“[b]roadly speaking, premises liability alleges a defendant property owner allowed
a dangerous condition on its property or failed to take reasonable steps to secure
its property against criminal acts by third parties.” (Delgado v. American Multi-
Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406, fn. 1; see also Alcarez v. Vece
(1997) 14 Cal.4th 1149, 1156 [premises liability is based on the duty “to maintain
land in one‟s possession in a reasonably safe condition”].) The duty to drive a
motor vehicle safely, by contrast, does not arise from ownership or possession of
land.
The second reason is based on a comparison of the statutory language
describing the safe-premises and hazard-warning immunities. It is a general rule
of statutory construction that “[w]hen one part of a statute contains a term or
provision, the omission of that term or provision from another part of the statute
indicates the Legislature intended to convey a different meaning.” (Cornette v.
Department of Transportation (2001) 26 Cal.4th 63, 73; accord, Wasatch Property
Management v. Degrate (2005) 35 Cal.4th 1111, 1118; People v. Gardeley (1996)
14 Cal.4th 605, 621-622.) In Civil Code section 846‟s first paragraph, the
statutory description of the hazard-warning immunity expressly refers to
hazardous “uses of” and “activities on” as well as “conditions” of the owner‟s
13
land. By contrast, the statutory description of the safe-premises immunity makes
no reference to uses or activities. It does not, for example, absolve a landowner of
a duty to “keep activities on the premises safe,” but only from the duty to keep
“the premises” themselves safe. Had the Legislature intended to extend the
liability shield to negligently conducted activities, such as dangerous driving, it
could simply have provided, in the first paragraph, that a landowner owes no duty
of care to avoid, prevent, remedy, or give any warning of hazardous conditions,
uses, structures, or activities, on the land. The Legislature did not do so. Instead,
it selected language carrying a strong implication that the safe-premises immunity
is narrower than the hazard-warning immunity, and does not extend to unsafe
activities such as negligent driving of a vehicle.
The third reason relies on another statutory construction principle, that
courts must strive to give meaning to every word in a statute and to avoid
constructions that render words, phrases, or clauses superfluous. (People v.
Trevino (2001) 26 Cal.4th 237, 245-246; People v. Woodhead (1987) 43 Cal.3d
1002, 1010.) The broad construction of the safe-premises immunity provision that
the United States urges us to adopt would violate this rule. The duty to “keep the
premises safe,” as the United States views it, encompasses not only the duty to
prevent or remedy hazardous conditions on the property, and possibly also to
guard against criminal activity by third parties, but also the duty to use due care in
the conduct of any activity on the property. In other words, the United States
would have us construe the language in Civil Code section 846‟s first paragraph
absolving landowners of the duty “to keep the premises safe” as absolving
landowners of any duty of care to avoid personal injury to recreational users of
their land. But such a broad reading of the safe-premises immunity would
encompass tort claims based on a failure to warn of potentially dangerous
activities because, as to such activities, a landowner can “keep the premises safe”
14
either by conducting the activities in a safe manner or by warning others of the
risks posed by those activities. Therefore, it is not reasonable to construe the
phrase “keep the premises safe” as encompassing one of those alternative safety
approaches but not the other. Unless the phrase “keep the premises safe” is
construed narrowly to mean preventing or remedying dangerous physical
conditions on the property, the alternative expansive construction renders
superfluous the separate liability shield for failures to warn of hazardous activities.
To give independent meaning and purpose to Civil Code section 846‟s hazard-
warning clause, we construe Civil Code section 846‟s safe-premises clause more
narrowly to encompass only premises liability claims arising from alleged
breaches of property-based duties.
For these three reasons that are based on the plain language of Civil Code
section 846‟s first paragraph, we conclude that section 846 does not bar a
recreational user‟s vehicular negligence claim against a landowner.6 Although
section 846 is broad in many respects, it is not all-encompassing, and it does not
release landowners or their employees from their basic duty to use due care while
engaged in potentially hazardous activities such as driving a motor vehicle.
Our conclusion is not altered by consideration of the language of Civil
Code section 846‟s fourth paragraph stating that the section “does not limit the
liability which otherwise exists . . . for willful or malicious failure to guard or
warn against a dangerous condition, use, structure or activity.” This provision
establishes a limitation on, or exception to, the various section 846 immunities.
The reference to a “willful or malicious failure to . . . warn against a dangerous

6
Insofar as it is inconsistent with this conclusion, the state Court of Appeal‟s
decision in Shipman v. Boething Treeland Farms, Inc., supra, 77 Cal.App.4th
1424, is disapproved.
15


condition, use, structure or activity” (italics added) limits the hazard-warning
immunity provided by section 846‟s first paragraph. The reference to a “willful or
malicious failure to guard . . . against a dangerous condition, use, structure or
activity” limits both the safe-premises immunity granted by the first paragraph (as
to dangerous conditions and structures) and the third paragraph‟s immunity from
liability for injuries caused by recreational users (as to dangerous uses and
activities). The words “guard against a dangerous . . . activity” aptly describe a
duty relating to the dangerous activity of a third party, such as a recreational user,
and would be an odd choice of words to describe a duty relating to the
landowner‟s own activities. Thus, section 846‟s fourth paragraph does not
establish a limitation or exception for the landowner‟s own willful or malicious
conduct. We may infer that the Legislature perceived no need for such a
limitation inasmuch as it had not provided a corresponding immunity for activities,
such as vehicle driving, conducted by the landowner or the landowner‟s employee.
B. Legislative History
Having concluded, based on the plain meaning of its language, that Civil
Code section 846 does not bar vehicular negligence claims against landowners, it
is not necessary to consider the statute‟s legislative history. Our review of that
legislative history reveals, however, that it is consistent with our conclusion.
As this court observed in Ornelas, the legislative history for Civil Code
section 846 is sparse and, at least on some points, inconclusive. (Ornelas, supra, 4
Cal.4th 1095, 1105, fn. 8.) “A letter from the bill‟s Senate sponsor to the
Governor urging favorable consideration suggests that it would encourage owners
who might otherwise fear liability to grant access to their property.” (Ibid.) As
this court has noted, however, in crafting legislation that would prevent the closure
of private lands to recreational users because of landowners‟ liability concerns, the
16
California Legislature sought to strike a fair balance between the interests of
private landowners and those of recreational users. (Id. at p. 1108.) Our
conclusion here, that section 846 encompasses premises liability claims but not
vehicular negligence claims, furthers this legislative objective of balancing the
respective interests of landowners and persons using their lands for recreation.
Construing section 846 to confer an immunity from liability for injuries caused by
the negligent conduct of the landowner or the landowner‟s employees might well
discourage recreational use of the land, thereby defeating the underlying statutory
purpose. Moreover, the Legislature might well have concluded that it is fair to
hold both landowners and recreational users to essentially the same standard of
care. Thus, if the landowner and a recreational user are engaged in the same
activity on the land at the same time — whether hunting, bicycle riding, or driving
a vehicle — each should owe the same duty of care to the other and each should
be subject to the same liability if a breach of that duty results in personal injury to
the other. At the same time, the landowner is relieved of liability for recreational
user injuries when the theory of liability depends on a duty that the law otherwise
imposes specifically and uniquely on landowners.
The summary prepared by the Legislative Counsel for the original 1963 bill
states that the bill “provides that an owner of an estate in real property is not liable
for injuries to people who enter upon his land for various recreational purposes”
(Legis. Counsel, Rep. on Sen. Bill No. 639 (1963 Reg. Sess.) July 5, 1963) and
this wording is repeated in some other legislative history documents relating to
that bill. These statements might be read as suggesting that Civil Code section
846 confers a blanket immunity. But if the Legislature had actually intended such
a broad and unqualified immunity, it could have used the Legislative Counsel‟s
broad and unqualified wording. That it chose rather different wording suggests
17
that it intended a narrower and more focused immunity, and the language of the
statute itself is the most reliable guide to legislative intent.
We note also that legislative history materials from the 1980 amendment
that extended Civil Code section 846‟s protections to owners holding
nonpossessory interests in land consistently summarize the section as providing
“that an owner of any estate in real property owes no duty of care to keep the
premises safe for entry or use by others for any recreational purpose.” (Sen. Com.
on Judiciary, analysis of Assem. Bill No. 1966 (1979-1980 Reg. Sess.) as
amended Feb. 11, 1980, p. 1, italics added.) Likewise, the debate surrounding the
1980 amendment to section 846 focused on whether nonpossessory landowners
should be given an incentive to “protect the public from dangerous conditions on
the land.” (See, e.g., Assem. Com. on Judiciary, analysis of Assem. Bill No. 1966
(1979-1980 Reg. Sess.) as amended Feb. 11, 1980, p. 3, italics added.) These
statements support our construction of section 846 as barring only premises
liability claims arising from property-related duties.
C. Public Policy Considerations
Although our construction of Civil Code section 846 is not based on public
policy considerations, we review those considerations briefly to ensure that the
construction we adopt will not produce manifestly adverse effects that the
Legislature could not have intended when it enacted that law. The state has a
strong interest in promoting the safe driving of motor vehicles and in preventing or
minimizing personal injuries resulting from motor vehicle accidents. Our
construction furthers these interests by encouraging property owners and their
employees to drive safely on their lands so as to reduce collisions with, and
injuries to, persons engaged in recreational activities on those lands.
18
Regarding activities other than motor vehicle driving, our construction, as
previously mentioned, has the effect of holding landowners and those who enter
their property for recreational purposes to essentially the same standard of care.
The landowner‟s status as landowner does not result in the imposition of
additional duties or a higher standard of care, but neither does it relieve the
landowner from the general duty imposed on all, landowner and recreational user
of land alike, to exercise due care while performing activities that could result in
injuries to others.
Attempting to demonstrate the “artificiality of the distinction” (post, p. 7
(dis. opn. of Baxter, J.)) that we draw here between negligence consisting of a
failure to remedy a dangerous physicial condition and negligence in the
performance of an activity, the dissent relies heavily on a series of hypothetical
scenarios. In constructing these examples, the dissent avoids mention of any
factual detail that would establish the landowner‟s actual negligence, thereby
creating a false impression that if Civil Code section 846‟s liability shield is not
extended to cover these situations, landowners may be held liable for conduct that
is entirely blameless. Moreover, the dissent nowhere acknowledges the arbitrary
distinctions that would determine liability under the construction of section 846
that it proposes.
An example illustrates the latter point. A landowner is visited by his
brother, who lives in another state, and the two travel in the same car to a tavern
where they spend the afternoon talking and consuming alcoholic beverages. On
their return to the landowner‟s property, the car goes out of control, as a result of
excessive speed and the driver‟s inebriation, while making the turn from the public
highway onto the landowner‟s property. The car strikes a recreational hiker, who
is seriously injured. Under the dissent‟s proposed interpretation of Civil Code
section 846, if the negligent driver is the landowner, he is liable for the hiker‟s
19
injuries if the hiker happens to be standing beside the public road, off of the
landowner‟s property, but section 846 shields the owner from liability if the hiker
is standing just a few feet away on the landowner‟s property. And if the negligent
driver happens to be the landowner‟s brother, rather than the landowner, the
brother is liable for the hiker‟s injuries regardless of where the hiker happens to be
standing when struck, because Civil Code section 846‟s liability shield applies
only to persons having an interest in the land. Under the construction we adopt
here, of course, the identity of the driver and the hiker‟s exact location at the time
of injury are not relevant in making the liability determination.
IV
Having concluded that Civil Code section 846‟s safe-premises immunity
clause does not encompass vehicular negligence claims, we consider and reject the
arguments that defendant United States offers against this statutory construction.
To support its position that Civil Code section 846 precludes recovery
against a landowner for an injury caused by vehicular negligence, defendant
United States seizes on language in this court‟s decision in Ornelas characterizing
section 846 as “extremely broad” (Ornelas, supra, 4 Cal.4th 1095, 1105). But
Ornelas dealt with an injury caused by farm equipment being stored on the
premises, a hazardous condition of the property. Nowhere in this court‟s
discussion of the scope of section 846 did this court consider unsafe activities
undertaken by landowners or their employees. More specifically, at no point did
this court in Ornelas, or in any other case before this one, address whether section
846 immunity would extend to cover affirmative acts of negligence on the part of
landowners or their employees.
Viewed in context, the “extremely broad” language in Ornelas refers to the
type of interest held by the landowner (possessory or nonpossessory), the nature of
the property (developed or undeveloped, urban or rural, natural or altered), and the
20
sorts of activities considered “recreational” (including even the spontaneous,
unsupervised play of young children). (Ornelas, supra, 4 Cal.4th 1095, 1100-
1102, 1105-1108.) Civil Code section 846 is indeed broad in each of those
respects. Ornelas made this point to explain why the statute applies to protect
landowners from liability even if the land at issue is not well suited to recreational
pursuits. (Ornelas, supra, at p. 1105.) This court stated that, “assuming the
requisite „interest‟ in land, the plain language of the statute admits of no
exceptions, either for property „unsuitable‟ for recreational use or otherwise.” (Id.
at p. 1105.)
Defendant United States relies also on this language in Ornelas: “The
landowner‟s duty to the nonpaying, uninvited recreational user is, in essence, that
owed a trespasser under the common law as it existed prior to Rowland v.
Christian [(1968)] 69 Cal.2d 108; i.e., absent willful or malicious misconduct the
landowner is immune from liability for ordinary negligence.” (Ornelas, supra, 4
Cal.4th 1095, 1100.) Because this language was unnecessary to the decision in
Ornelas, it was dictum, and thus lacking in precedential force (City of Hope
National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 390),
particularly in light of the facts of Ornelas, which involved a premises liability
claim based on the allegedly hazardous condition of the property (see Brown v.
Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 734-735 [stating that a decision‟s
positive authority is limited by the facts presented by the case]). Indeed, until now
every Civil Code section 846 case this court has decided has involved an injury
arising out of the condition of privately owned property, rather than an injury
arising out of an allegedly unsafe activity being conducted on the property. (See
Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151 [child injured while
attempting to dislodge a kite from a power line on defendant‟s property]; Lewis v.
Superior Court (1999) 19 Cal.4th 1232 [plaintiff injured when horse he was riding
21
stepped into a rut on defendant‟s private road]; Hubbard v. Brown (1990) 50
Cal.3d 189 [plaintiff injured when he ran his motorcycle into a fence on
defendant‟s property]; Delta Farms Reclamation Dist. v. Superior Court (1983) 33
Cal.3d 699 [two teenage girls drowned in canal owned by defendant].)
Furthermore, it appears that the quoted Ornelas language on which
defendant United States relies is an inaccurate or at least incomplete description of
a landowner‟s duty to a trespasser under the common law as it existed in
California before Rowland v. Christian, supra, 69 Cal.2d 108. As described by
this court in Rowland, the general rule under the common law was that trespassers
are “obliged to take the premises as they find them insofar as any alleged defective
condition thereon may exist, and that the possessor of the land owe[d] them only
the duty of refraining from wanton or willful injury.” (Rowland, supra, 69 Cal.2d
at p. 114, italics added.) Twelve years earlier, this court had given this somewhat
more nuanced description of existing California law: “[I]n cases involving active
conduct, as distinguished from condition of the premises, the landowner or
possessor may be liable for failure to exercise ordinary care toward a licensee
whose presence on the land is known or should reasonably be known to the owner
or possessor.” (Oettinger v. Stewart (1944) 24 Cal.2d 133, 138.)
Although Oettinger involved a licensee or “business visitor” rather than a
trespasser, the court implied that, at least under some circumstances, a landowner,
while engaged in “active conduct,” was obliged to exercise reasonable care toward
a trespasser if the landowner knew that the trespasser was present, or had reason to
anticipate that the trespasser would be present, in the area where the injury
occurred. (Oettinger, supra, 24 Cal.2d at pp. 138-139.) Among the cases this
court cited as having recognized the above described landowner duty was
Hamakawa v. Crescent Wharf & W. Co. (1935) 4 Cal.2d 499, a case involving a
trespasser. There, this court had held that the defendant, who was in control of the
22
premises that the plaintiff had entered without permission, owed a duty “to
conduct its activities with reasonable care for [the plaintiff‟s] safety” if, but only
if, the defendant “knew or from facts within its knowledge should have known of
the plaintiff‟s presence.” (Hamakawa, supra, at pp. 501-502.) This description of
the duty that a landowner owes to a trespasser at common law is consistent with
section 336 of the Restatement Second of Torts, which states: “A possessor of
land who knows or has reason to know of the presence of another who is
trespassing on the land is subject to liability for physical harm thereafter caused to
the trespasser by the possessor‟s failure to carry on his activities upon the land
with reasonable care for the trespasser‟s safety.”
Of course, Civil Code section 846 makes a plaintiff‟s common law status,
whether invitee or trespasser, irrelevant to the question of the defendant
landowner‟s liability. What we decide today is whether section 846 shields a
landowner from liability for a recreational user‟s injury caused by the negligent
driving of the landowner‟s employee. The dictum in this court‟s Ornelas decision
regarding a landowner‟s duty to a trespasser under earlier common law (Ornelas,
supra, 4 Cal.4th 1095, 1100) offers little instruction on that issue. This court had
no need in Ornelas to consider negligence unrelated to the upkeep of the premises,
as Ornelas involved the sort of injury typically arising under section 846 — an
injury resulting from the condition of the land.
V
In response to the Ninth Circuit‟s request for clarification of California law,
we conclude that Civil Code section 846 does not shield a landowner from liability
23

to a recreational user for personal injury resulting from the negligent driving of the
landowner‟s employee acting within the course and scope of employment.
KENNARD, J.
WE CONCUR:

GEORGE, C. J.
WERDEGAR, J.
MORENO, J.

24



DISSENTING OPINION BY BAXTER, J.

I respectfully dissent. It is clear to me that under Civil Code section 846,1
the so-called recreational use immunity statute, the owner of an estate in real
property is not liable for any injury suffered, as the result of the owner‟s mere
ordinary negligence, by one who is on the property, without payment or invitation,
for recreational purposes. The owner‟s statutory immunity for ordinary
negligence under such circumstances applies not only to injuries caused by
physical conditions on the property, but also to those caused by the owner‟s uses
of, and activities on, the property, such as the negligent driving at issue here. As
I shall explain, this result is compelled by a fair reading of the statutory language
and by the policies underlying the immunity, as we have previously described
them.
At the outset, I share a natural sympathy for the injured plaintiff in this
case. It certainly seems that a bicyclist injured in a traffic accident on a public
highway should be able to recover from the employer of a negligent driver who
struck him while engaged in the course and scope of the employment.
Unfortunately, however, the accident at issue here involved a federal employee
driving on federal land. For better or worse, Congress has cloaked the federal

1
All further unlabeled statutory references are to the Civil Code.
1


government in California with any tort immunity a private person, including a
private landowner, would have under state law, such as the recreational use
immunity conferred by section 846. (28 U.S.C. § 1346(b)(1).) Moreover, though
the government actively promotes the free public recreational use of its national
forest lands and roads, case law has consistently held that it does not thereby
“expressly invite[ ]” members of the public onto its property, so as to come within
an express statutory exception to immunity. (§ 846, 4th par.)2 These anomalous,
and perhaps counterintuitive, circumstances should not influence our resolution of
the issue the Ninth Circuit has asked us to decide here. We should resist the
temptation to make bad law from bad facts.
Instead, we must focus on how section 846 properly applies to the millions
of individual California property owners — agricultural, industrial, commercial,
and residential — who face exposure to tort liability when persons who have
entered private land for recreational purposes, often without the owners‟
permission, come into contact with the owners‟ normal activities on their property.
For multiple reasons, the majority reaches the wrong interpretation of section 846
as applied to these owners.

2
See, e.g., Mattice v. U.S. (9th Cir. 1992) 969 F.2d 818, 820-821 (section
846 applied to paved secondary access road in national park); Termini v. U.S.
(9th Cir. 1992) 963 F.2d 1264, 1265-1266 (§ 846 applied to Forest Service road in
Angeles National Forest); Phillips v. U.S. (9th Cir. 1979) 590 F.2d 297, 299-300
(Forest Service promotional literature was not “express invitation” to enter
national forest); see also Ravell v. U.S. (9th Cir. 1994) 22 F.3d 960, 962-963
(invitation to general public to attend air show on military base was not “express[ ]
invit[ation]” to injured spectator); Johnson v. Unocal Corp. (1993) 21 Cal.App.4th
310, 317 (exemption from § 846 immunity requires “direct, personal invitation” to
injured person).

2


The Legislature‟s primary purpose in adopting section 846 was to
encourage the owners of real property to allow recreational use of the property by
others without fear that if an owner‟s mere negligence on the premises injured
such a user, the owner would face tort liability. As discussed below, nothing in
the legislative history of section 846, or in our case law directly interpreting this
statute, manifests an intent to immunize only static physical “conditions” on the
property, while leaving the owner fully exposed if his or her normal activities on
the property injure a person who has entered, without payment or invitation, for
recreational purposes. Though the majority insists otherwise, there is no readily
apparent reason why the Legislature would make such a distinction. Landowners
do not simply maintain their property, they use it. If the law seeks to encourage
such owners to allow nonpaying, uninvited strangers to enter and use their land for
recreational purposes without fear of personal injury liability, both “conditions”
and “use” immunity are equally justified.
Of course, as this court has indicated, the statute also reflects a policy that it
is unfair to subject a landowner to tort liability when nonpaying, uninvited
strangers enter against the landowner’s will for recreational purposes. This was a
primary ground for our holding that section 846 applies even to land that is
unsuitable for recreation, and even where the landowner seeks to prevent
recreational entry and use by others. In reaching this conclusion, we stressed that
section 846 sets forth only two requirements for immunity: “(1) the defendant
must be the owner of an „estate or any other interest in real property, whether
possessory or nonpossessory‟; and (2) the plaintiff’s injury must result from the
„entry or use [of the “premises”] for any recreational purpose.‟ (§ 846.)”
(Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1100, italics added (Ornelas).)
As we explained in Ornelas, the Legislature “could reasonably determine
that a landowner — any landowner — should not in fairness be held liable for
3
injuries sustained by a trespasser from the recreational use of the owner‟s
property.” (Ornelas, supra, 4 Cal.4th at p. 1105, italics added.) Indeed, we noted,
the Legislature could recognize the “evident” injustice of subjecting a landowner
who seeks to prevent recreational entry to greater liability than one who permits
such entry. (Id., at p. 1107.) In sum, we indicated, the statute‟s purpose is to
ensure that “[t]he landowner‟s duty to the nonpaying, uninvited recreational user
is, in essence, that owed a trespasser under the common law as it existed prior to
Rowland v. Christian [(1968)] 69 Cal.2d 108 [(Rowland)]; i.e., absent willful or
malicious misconduct the landowner is immune from liability [to a recreational
user] for ordinary negligence. [Citations.]” (Id., at p. 1100, italics added; see also
Rest.2d Torts, § 333 [under traditional common law rule, possessor of land is not
liable to trespassers for failure to exercise due care either to put the land in a
reasonably safe condition orto carry on his activities so as not to endanger them”
(italics added)].)3
Land may be unsuitable for recreation, and the owner may attempt to
prevent recreational trespassing, not only because of dangerous physical
conditions of the land itself, but because the activities the owner is conducting on
the property — whether industrial, agricultural, commercial, residential, or even
recreational — simply make it incompatible with recreational use by outsiders.

3
The majority insists that, in expressing this principle, our Ornelas opinion
provided an “inaccurate or at least incomplete” description of pre-Rowland
California law. (Maj. opn., ante, at p. 21.) This law, the majority asserts, had
developed nuances that acknowledged a landowner‟s duty to exercise due care in
“active conduct” toward a trespasser whose presence was, or reasonably should
have been, known. (Ibid; see also Rest.2d Torts, supra, § 336.) The point is of
little moment. The simple fact is that, in Ornelas, we discerned a legislative
intent, by the adoption of section 846, to absolve a landowner of any duty to avoid
negligent “conduct” toward a recreational trespasser.
4


No reason appears why those activities, if not willful or malicious, should
nonetheless expose the owner to tort liability when a trespasser who enters the
land for recreational purposes is injured.
Despite all this, the majority concludes that section 846‟s basic immunity
extends only to the physical condition of the land itself, not to uses or activities on
the land by the owner, such as the operation of a motor vehicle by the owner (or
the owner‟s employee). To support its conclusion, the majority first points to
features of the statutory language. However, I respectfully submit that the
majority‟s parsing of the statute does not withstand scrutiny. To put my views in
context, I briefly review the statutory terms.
For our purposes, the significant portions of section 846 are contained in
the first, third, and fourth paragraphs. The first paragraph provides in pertinent
part that one with a possessory interest in real property “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 [to such recreational entrants or users] of hazardous
conditions, uses of, structures, or activities on such premises.” (§ 846, italics
added.)
The third paragraph says that a landowner who gives permission to another
for recreational entry and use does not thereby (a) warrant “that the premises are
safe for such purpose,” (b) accord the permitted person “the legal status of an
invitee or licensee to whom a duty of care is owed, or (c) assume responsibility for
or incur liability for any injury . . . caused by any act of such person . . . .” (§ 846,
italics added.)
Finally, the fourth paragraph states, inter alia, that section 846 “does not
limit the liability which otherwise exists (a) for willful or malicious failure to
guard or warn against a dangerous condition, use, structure or activity.” (§ 846,
italics added.)
5
When all is said and done, the majority relies almost exclusively on two
aspects of the first paragraph. First, the majority focuses upon the phrase “keep
the premises safe.” The majority insists this phrase conjures up the notion of
“premises liability,” a term of art generally associated with a landowner‟s
“property-based” duty to maintain the land and buildings themselves in a
reasonably safe condition. (Maj. opn., ante, at p. 12, italics added.) The
Legislature, the majority assumes, must have so understood when it chose the
statutory language. This phrase, the majority insists, does not extend to the
owner‟s negligent day-to-day activity unrelated to property maintenance, such as
careless operation of a vehicle, even though the negligent conduct occurs on his or
her own property and causes injury to a recreational user.
I am not persuaded. In the first place, there is no hard-and-fast rule that
“premises liability” — the liability exposure of a possessor of land to persons
injured thereon — is limited to what the majority deems the “property-based
duties” (maj. opn., ante, at p. 13) of physical care, maintenance, and repair.
Generally, “ „[t]he proper test to be applied to the liability of the possessor of land
. . . is whether in the management of his property he has acted as a reasonable man
in view of the probability of injury to others . . . .‟ ” (Alcaraz v. Vece (1997)
14 Cal.4th 1149, 1156, quoting Rowland, supra, 69 Cal.2d 108, 119.) Nothing in
that formulation necessarily distinguishes between dangers arising from mere
negligent property maintenance by the possessor, on the one hand, and dangers
arising from activities the possessor or others are conducting on the property, on
the other. (See, e.g., Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th
666, 674 [duty of landlord to tenant or patron to protect against foreseeable
criminal activity on the property]; Austin v. Riverside Portland Cement Co. (1955)
44 Cal.2d 225, 233 [possessor‟s duty to warn contractor‟s employees of danger
posed by operation of crane near live power lines].)
6
In any event, the Legislature did not use the term of art “premises liability,”
as it might easily have done. Instead, the statute employs the broader phrase “keep
the premises safe.” This phrase reasonably encompasses all failures to exercise
due care that render the “premises” unsafe for recreational use by uninvited,
nonpaying outsiders. Such failures may as easily and commonly involve the
owner‟s active conduct on the property, and the day-to-day use the owner makes
of it, as they do static physical conditions on the land. As indicated above, no
logical reason appears why the phrase “keep the premises safe” should provide
immunity only for one, and not for the others.
The following examples illustrate the artificiality of the distinction the
majority proposes:
A salvage yard, surrounded by a fence posted with “customers only” and
“no children” signs, is strewn with carelessly heaped piles of parts and scrap metal
recovered from junked vehicles. Attracted by the piles, two neighborhood
teenagers, X and Y, enter for purposes of amusing themselves. X scrambles onto
one of the piles. His weight causes it to shift, and he is partially buried in debris,
causing him injury. Meanwhile, Y‟s attention is diverted to an auto crushing
machine, which is operating nearby. Y accidentally places his hand in the path of
the crushing mechanism. The operator fails to shut off the machine in time, and
Y‟s arm is seriously mangled. Under the majority‟s proposed holding, the salvage
yard owner is immune from liability to X, but is liable for the negligent injury
caused to Y.
Similarly, a wheat farmer has fenced his fields and posted them with “no
trespassing” signs. During the harvest season, three bored adolescents who live
nearby come onto the property to see what recreational opportunities might
present themselves. One of the adolescents, C, enters a rarely used barn, which
the farmer has allowed to fall into disrepair. C climbs up into the hayloft and falls
7
through the rotten structure, injuring himself. Meanwhile, C‟s companions, D and
E, play a form of “tag” in the farmer‟s wheat fields, using the tall, ripe summer
wheat as cover. While D is hiding, the farmer, harvesting his wheat with a
combine, accidentally runs over D‟s leg, causing serious injury. Under the
majority‟s analysis, the farmer is not liable to C, but is fully exposed to liability to
D.
Finally, a landowner, A, has a rural home with substantial acreage. On a
remote portion of his property, he has constructed, for his own recreational use, a
dirt bike course that includes moguls, blind curves, and water hazards. The owner
has fenced off his land to discourage entry by strangers. He is familiar with the
challenges the course presents, and, because of his efforts to deter outsiders, he
assumes he will encounter no other riders. Hence, to maximize his fun, A rides at
the highest speed the course will accommodate. While he is doing so, two other
dirt bikers, B and C, negotiate the fence, enter the property with their vehicles, and
begin riding on the course. B rounds a blind curve, unaware of the hidden water
hazard just beyond. He crashes into the water, and is injured. Moments later, C
speeds through the same curve, only to see A bearing down on him. The bikes
ridden by A and C collide, injuring C. Under the majority‟s narrow construction
of “keep the premises safe,” A is immune from liability for B‟s injury, but is fully
exposed to liability for the injury caused to C.
Section 846‟s immunity for failure to “keep the premises safe” does not, by
its terms, admit of such arbitrary distinctions. Nor are they justified in light of the
clear public policy implemented by the statute.4
4 The majority provides its own hypothetical example in an attempt to show
that section 846 might operate arbitrarily in certain circumstances if interpreted to
absolve a landowner of due care toward a nonpaying, uninvited recreational user
(Footnote continued on next page.)
8
The majority next observes that the first paragraph of section 846 also
states an immunity for failure “to give any warning of hazardous conditions, uses
of, structures, or activities on such premises.” (Italics added.) Confronted with
the fact that this phrase specifically refers to active conduct as well as physical
conditions, the majority reasons that the immunity for failure to warn is simply
broader than the “premises safe” immunity. Because a broad construction of the
“premises safe” immunity to include uses and activities would encompass failure-
to-warn theories, the majority asserts, such a construction would render the
separate immunity for failure to warn unnecessary and superfluous. Hence, the
majority concludes, the “premises safe” immunity must apply only to physical
conditions, while the broader failure-to-warn immunity extends to activities and
uses as well.
For several reasons, this analysis is not convincing. In the first place, no
reason appears why the Legislature would wish to immunize landowners, as
against recreational users, for failing to warn about hazardous activities and uses,
while holding them fully liable for the activities and uses themselves. A more
logical approach would be just the opposite — immunity for hazardous activities

(Footnote continued from previous page.)

with respect to the owner‟s uses and activities on the property as well as physical
conditions thereon. (Maj. opn., ante, at pp. 19-20.) Of course, any statutory
policy choice may produce arbitrary results in isolated instances. But the majority
fails to persuade that the policies reflected in section 846 — to encourage the
availability of suitable private land for recreation while protecting the owners of
unsuitable land from liability for mere negligence to recreational trespassers — are
best served by its pinched construction of the statute.

9


and uses, so long as the landowner provided adequate warning to persons entering
the land for recreational purposes.
Consider the following example: As all agree, the statute would immunize
a farmer from negligence liability for failing to warn nonpaying, uninvited
recreational entrants that he is about to spray his crops with toxic pesticides.
Nonetheless, he does post prominent notices of the imminent spraying at
numerous locations on the fence around his land. Notwithstanding these
warnings, trespassers climb through the fence and enter the property to hunt
pheasant. Satisfied that the warnings he provided would deter recreational
entrants, the farmer negligently fails to notice the hunters‟ presence, and he
proceeds with the spraying operation. Several of the hunters suffer injurious
reactions. Under the majority‟s interpretation of section 846, the farmer‟s act of
spraying exposes him to liability, even though he provided clear warnings, and
even though he would have been immune from liability for his negligent failure to
do so. It is difficult to conclude, as a matter of common sense, that the Legislature
intended such a result.
Moreover, contrary to the majority‟s assertion, it is simply not true that if
the “premises safe” immunity applies to uses and activities as well as physical
conditions, the failure-to-warn immunity becomes superfluous. On the contrary,
separate treatment of the two immunities, as applied to both static physical
conditions and active conduct, is rational and logical, because the duties to which
these immunities relate are themselves often separate. Situations may arise where
due care could be satisfied either by directly reducing, avoiding, or eliminating
dangers arising from conditions or activities on one‟s property — i.e., “keep[ing]
the premises safe” — or by giving adequate warning of the dangers. In some
cases, where due care cannot make conditions or activities on the premises safe —
such as those arising from inherently or unavoidably dangerous agricultural or
10
industrial operations — due care, where such a duty is owed, may still require the
landowner to warn potential entrants of these dangers.
Ample reason thus exists to absolve a landowner of negligence liability to
an injured recreational user whether a duty would otherwise arise to eliminate
dangerous conditions and activities, or simply to warn of them. In my view,
section 846 does just that.
If there were any doubt on this point, the fourth paragraph of section 846
resolves it. As indicated above, this paragraph declares in pertinent part that the
statute “does not limit the liability which otherwise exists . . . for [a landowner‟s]
willful or malicious failure to guard or warn against a dangerous condition, use,
structure or activity . . . .” (Italics added.) Two aspects of this provision
unambiguously refute the majority‟s construction of the statutory immunity.
First, the paragraph evidences the Legislature‟s intent to deal separately and
equally with the respective duties to “warn against,” and to “guard . . . against,”
dangers on the property, whether those dangers arise from “condition[s]” and
“structure[s],” or from “activit[ies]” and “use[s].” (§ 846, 4th par.) Insofar as the
paragraph withdraws or withholds immunity for landowners‟ “willful or
malicious” acts or omissions that injure recreational users, it does so across the
board, for failures both to “guard . . . against,” and to “warn against,” injury-
causing dangers, stemming either from physical conditions, or from the owners‟
uses or activities.
As so worded, the fourth paragraph thus clarifies the scope and extent of
the first paragraph‟s immunity. The fourth paragraph makes clear that there is no
immunity if the failure to “guard . . . against,” or to “warn against,” dangerous
“condition[s], use[s], structure[s] or activit[ies]” was “willful or malicious.” But
the statute‟s need to specify the broad range of circumstances in which immunity
is not provided obviously arises because the statute does otherwise provide
11
immunity under the same circumstances for merely negligent acts or omissions.
The paragraph clearly implies that its exception from immunity for “willful or
malicious” conduct is coextensive with the immunity for conduct that is merely
negligent. Since the exception applies to a failure to “guard . . . against”
dangerous “use[s]” and “activit[ies]” as well as hazardous physical conditions, so
must the immunity. (§ 846, 4th par.)
Thus, the most natural way to read the statute is that, under the first
paragraph, the immunity extends to conditions, activities, and uses, except, under
the fourth paragraph, those that are “willful or malicious.” Under this
construction, the first paragraph‟s phrase “keep the premises safe” is simply an
analog of the fourth paragraph‟s phrase “guard . . . against a dangerous condition,
use, structure or activity.”
The majority suggests the fourth paragraph‟s withdrawal of immunity for
“willful or malicious” failure to “guard . . . against” “use[s]” and “activit[ies]”
may properly be read as referring only to the third paragraph, which specifies that
a landowner who gives permission to another person to enter for recreational
purposes does not thereby “assume responsibility for or incur liability for any
injury . . . caused by any act of such person.” (§ 846, 3d par., italics added.)
Because the only express immunity set forth in section 846 for “act[s]” is the
third-paragraph immunity for the “act[s]” of a permitted user, this line of
reasoning goes, the fourth paragraph must simply mean that if the landowner has
acted in a “willful or malicious” fashion, his or her immunity for the “act” of a
permitted recreational user will not apply.
But this unduly narrow construction of the fourth paragraph‟s references to
“use[s]” and “activit[ies]” finds no support in the statutory language. By its terms,
the fourth paragraph‟s withdrawal of immunity for “willful or malicious” conduct
by the landowner broadly extends to all failures to “guard or warn against a
12
dangerous condition, use, structure or activity.” (§ 846, 4th par.) Nothing in this
phrase suggests it is limited to those particular “act[s]” of a third person to whom
the landowner has given permission for recreational entry and use, though such a
qualification could easily have been expressed. And, as indicated above, the broad
phrasing of the fourth paragraph‟s exception to immunity clearly implies that the
immunity itself also extends not only to “condition[s]” of the land, but to “use[s]”
and “activit[ies]” thereon — including those of the landowner.
Indeed, it is difficult to imagine how the scenario to which the majority
confines the fourth paragraph‟s withdrawal of immunity would ever occur. If
I understand the majority‟s position correctly, the withdrawal of immunity for
“willful or malicious” failure to “guard . . . against” “use[s]” or “activit[ies]” on
the land that injured a recreational user would apply only in the almost
inconceivable case where the landowner “willful[ly] or malicious[ly]” failed to
prevent a recreational user, whom the landowner had permitted to enter, from
injuring another person on the land. Such a circumstance is so unlikely in real life
that it stretches credulity to believe the Legislature was focused on it.
Moreover, contrary to the majority‟s analysis, the third paragraph of section
846 supports, rather than undermines, my reading of the statute. The third
paragraph states, inter alia, that merely by giving permission to enter and use the
property for recreational purposes, the landowner does not thereby grant “the
person to whom permission has been granted the legal status of an invitee or
licensee to whom a duty of care is owed . . . .” (§ 846, 3d par., italics added.) The
obvious purpose of this provision is to equate the statutory immunity against a
permissive recreational user, who might otherwise be entitled to greater common
law protection as “an invitee or licensee,” with that afforded in the case of a
recreational trespasser. By using the broad, unqualified term “a duty of care”
(ibid., italics added) to describe the extent of this immunity, the statutory language
13
strongly suggests that a landowner simply owes no duty of care (other than to
refrain from “willful or malicious” conduct) to prevent injury to uninvited,
nonpaying persons, whether trespassers or “permittee[s],” who enter and use the
land for recreational purposes (id., 4th par.).
The majority concedes that the legislative history of section 846 is sparse,
and further acknowledges that the Legislative Counsel‟s summary of the original
1963 bill (bill “provides that an owner of an estate in real property is not liable for
injuries to people who enter upon his land for various recreational purposes”)
(Legis. Counsel, Rep. on Sen. Bill No. 639 (1963 Reg. Sess.) July 5, 1963)
suggests an intent to create a blanket immunity for injuries arising from a
landowner‟s negligence. Nonetheless, the majority insists its narrower view of the
intended immunity finds support in the legislative history of the 1980 amendment
to section 846.
I do not agree. One example cited by the majority simply parrots the
statutory phrase “keep the premises safe.” (Sen. Com. on Judiciary, analysis of
Assem. Bill No. 1966 (1979-1980 Reg. Sess.) as amended Feb. 11, 1980, p. 1.) As
I have indicated above, this language does not necessarily track the narrower term
of art “premises liability.” Moreover, at least some of the 1980 legislative
documents, while reciting the statutory language, state interchangeably that the
statute “exempts an owner of any estate in real property from liability to
recreational users of his premises.” (E.g., Assem. Com. on Judiciary, Bill Digest,
Assem. Bill No. 1966 (1979-1980 Reg. Sess.) as amended Feb. 11, 1980, p. 2.)
This broader language suggests a blanket immunity for all injuries negligently
caused by a landowner to a nonpaying, uninvited person on the property for
recreational purposes.
The majority suggests that if the Legislature meant to immunize a
landowner against all injuries sustained by a nonpaying, uninvited recreational
14
user of the property as the result of the landowner‟s negligence, it could simply
have stated that rule in so many words. But given the ample indicia that the
Legislature did intend to immunize both conditions and activities, if not “willful or
malicious,” its failure to set forth the rule with the grammatical exactitude the
majority proposes cannot be dispositive.
The majority also speculates that by applying the immunity only to physical
conditions, and not to “use[s]” and “activit[ies],” the Legislature sought to strike a
reasonable balance between landowners and recreational users of land. The
premise of this theory is that if the statute absolved landowners of liability for their
negligent conduct toward those on the property for recreational purposes, persons
would be discouraged from using private lands for recreation, contrary to the
purpose of section 846.
But there are two responses to this line of reasoning. First, as the
Legislature must have understood, the greater a landowner‟s potential exposure to
liability for injuries to nonpaying, uninvited recreational users, the greater is his or
her incentive to discourage or prohibit such use. Second, as this court has
previously made clear, section 846 also justly applies to landowners who do
discourage recreational entry and use of their unsuitable property. As indicated,
that unsuitability may arise as much from the owner‟s activities on the property
that are incompatible with recreation, as from physical conditions thereon.
The majority also posits that the Legislature may have sought to place a
landowner and a recreational user of the land on an equal footing, such that each
owes a similar duty of care to refrain from injurious conduct when they are jointly
engaged in activities on the property. The majority offers no evidence for this
equal-footing theory. Moreover, as previously indicated, it flies in the face of the
policies we have said underlie section 846. First, the statute seeks to encourage a
landowner to permit outsiders to enter and use the land for recreational purposes,
15
even though (1) the recreational users have no right to enter for this purpose, and
(2) the owner has the absolute right to exclude them. Second, the statute seeks to
protect a landowner who does exercise his or her absolute right to discourage
recreational entry — perhaps because the owner‟s own use of the land is
incompatible with safe recreation by outsiders — from unjust exposure to tort
liability when an outsider nonetheless enters for purposes of recreation and is
injured while on the property.
Neither of these objectives is served by placing a landowner, and a
recreational user who enters the land without right or permission, on an equal
footing with respect to their respective activities on the land. Instead, as the
Legislature undoubtedly concluded, the landowner is entitled to protection for his
or her own uses and activities when, as a result of the owner‟s mere negligence, a
16

nonpaying, uninvited person who has entered the property for recreational
purposes suffers injury.
For all these reasons, I am strongly persuaded that section 846 provides
immunity both for negligent property maintenance by a landowner, and for
negligent active conduct by the owner on the property, when a resulting danger
causes injury to a nonpaying, uninvited person who is present for recreational
purposes. I believe the majority‟s contrary holding seriously misconceives the
legislative purpose and undermines the public policy reflected in section 846.
Accordingly, I would respond to the Ninth Circuit‟s request for clarification
of California law by concluding that Civil Code section 846 does shield a
landowner from liability to a nonpaying, uninvited recreational user for personal
injury resulting from the negligent driving of the landowner‟s employee acting in
the course and scope of employment.
BAXTER, J.

CONCUR:

CHIN, J.
CORRIGAN, J.
17



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Klein v. United States of America
__________________________________________________________________________________

Unpublished Opinion


Original Appeal XXX (on certification pursuant to rule 8.548, Cal. Rules of Court)
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S165549
Date Filed: July 26, 2010
__________________________________________________________________________________

Court:


County:
Judge:


__________________________________________________________________________________

Attorneys for Appellant:

Santiago Rodnunsky & Jones, David G. Jones and Tamara S. Fong for Plaintiffs and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Thomas P. O‟Brien, United States Attorney, Leon W. Weidman, Julie Zatz, Jonathan K. Klinck and Anoiel
Khorshid, Assistant United States Attorneys, for Defendants and Respondents.

Sedgwick, Detert, Moran & Arnold and Frederick D. Baker for Pacific Gas & Electric Company, Southern
California Edison Company, Southern California Gas Company and San Diego Gas & Electric Company as
Amici Curiae on behalf of Defendants and Respondents.

Randolph Cregger & Chalfant and Joseph P. Mascovich for Union Pacific Railroad Company as Amicus
Curiae on behalf of Defendants and Respondents.



Counsel who argued in Supreme Court (not intended for publication with opinion):

David G. Jones
Santiago Rodnunsky & Jones
5959 Topanga Canyon Boulevard, Suite 220
Woodland Hills, CA 91367
(818) 884-3400

Julie Zatz
Assistant United States Attorney
Federal Building, Suite 7516
300 North Los Angeles Street
Los Angeles, CA 90012
(213) 894-7349


Request under California Rules of Court, rule 8.548, that this court decide questions of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. The question presented is: "Does Civil Code section 846, California's recreational land use statute, immunize a landowner from liability for acts of vehicular negligence committed by the landowner's employee in the course and scope of his employment that cause personal injury to a recreational user of that land?"

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 07/26/201050 Cal. 4th 68, 235 P.3d 42, 112 Cal. Rptr. 3d 722S165549Question of Law - Civilsubmitted/opinion due

Parties
1Klein, Alan Richard (Plaintiff and Appellant)
Represented by Tamara Shirley Fong
Santiago Rodunsky & Jones
5959 Topanga Canyon Boulevard, Suite 220
Woodland Hills, CA

2Klein, Alan Richard (Plaintiff and Appellant)
Represented by David Gary Jones
Santiago Rodnunsky & Jones
5959 Topanga Canyon Boulevard, Suite 220
Woodland Hills, CA

3Klein, Sheryll (Plaintiff and Appellant)
Represented by David Gary Jones
Santiago Rodnunsky & Jones
5959 Topanga Canyon Boulevard, Suite 220
Woodland Hills, CA

4United States of America (Defendant and Respondent)
Represented by Anoiel Noel Khorshid
Office of the U.S. Attorney/Central District
300 N. Los Angeles Street, Suite 7516
Los Angeles, CA

5United States of America (Defendant and Respondent)
Represented by Jonathan Bruce Klinck
Office of the U.S. Attorney/Central District
300 N. Los Angeles Street, Suite 7516
Los Angeles, CA

6United States of America (Defendant and Respondent)
Represented by Julianne Zatz
Office of the U.S. Attorney/Central District
300 N. Los Angeles Street, Suite 7516
Los Angeles, CA

7Anderberg, David (Defendant and Respondent)
Represented by Colette Maria Asel
P.K. Schreiffer, LLP
100 N. Barranca Street, Suite 1100
West Covina, CA

8Anderberg, David (Defendant and Respondent)
Represented by Jonathan Bruce Klinck
Office of the U.S. Attorney/Central District
300 N. Los Angeles Street, Suite 7516
Los Angeles, CA

9Pacific Gas & Electric Company (Amicus curiae)
Represented by Frederick D. Baker
Sedgwick Detert Moran & Arnold, LLP
1 Market Plaza, Steuart Tower, 8th Floor
San Francisco, CA

10San Diego Gas & Electric Company (Amicus curiae)
Represented by Frederick D. Baker
Sedgwick Detert Moran & Arnold, LLP
1 Market Plaza, Steuart Tower, 8th Floor
San Francisco, CA

11Southern California Edison Company (Amicus curiae)
Represented by Frederick D. Baker
Sedgwick Detert Moran & Arnold, LLP
1 Market Plaza, Steuart Tower, 8th Floor
San Francisco, CA

12Southern California Gas Company (Amicus curiae)
Represented by Frederick D. Baker
Sedgwick Detert Moran & Arnold, LLP
1 Market Plaza, Steuart Tower, 8th Floor
San Francisco, CA

13Union Pacific Railroad Compamy (Amicus curiae)
Represented by Joseph P. Mascovich
Randolph Cregger & Chalfant, LLP
1030 "G" Street
Sacramento, CA


Opinion Authors
OpinionJustice Joyce L. Kennard
DissentJustice Marvin R. Baxter

Dockets
Jul 31 2008Request to answer question of state law filed
  by United States Court of Appeals for the Ninth Circuit
Jul 31 2008Received:
  General Docket; and 1 copy each of: Appellant's Opening Brief, Appellant's Excerpts of Record, Defendant United States' Answer Brief, Appellant's Reply Brief.
Oct 16 2008Request for certification granted
  The request, made pursuant to California Rules of Court, rule 8.548, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit is granted. For the purposes of briefing and oral argument, plaintiffs Alan Richard Klein and Sheryll Klein are deemed petitioners to this court. (Cal. Rules of Court, rule 8.520(a)(6).) Votes: George, C.J., Kennard, Werdegar, Chin, Moreno, and Corrigan, JJ.
Oct 24 2008Certification of interested entities or persons filed
  Alan Richard Klein, et al., appellants by David Gary Jones, counsel
Oct 30 2008Certification of interested entities or persons filed
  appellant, United States of America & David Anderberg by U. S. Attorney, Jonathan B. Klinck.
Nov 18 2008Opening brief on the merits filed
  Alan Richard Klein, et al., petitioners / CRC 8.25(b) by Dave G. Jones, counsel
Dec 5 2008Request for extension of time filed
  Defendant-Appellant - United States of America requesting extension until February 15, 2009 to file answer brief on the merits. by Julie Zatz, counsel
Dec 8 2008Filed:
  notice of unavailability of attorney David G. Jones and Tamara S. Fong for Appellants, Alan Klein, et al.; to appear April 6, 2009 through April 10, 2009.
Dec 10 2008Extension of time granted
  On application of defendant and appellant United States of America and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including February 17, 2009.
Feb 17 2009Answer brief on the merits filed
  United State of America, respondent by Julie Zatz, counsel
Feb 17 2009Request for judicial notice filed (granted case)
  United State of America, appellant by Anoiel Khorshid, counsel
Feb 25 2009Request for extension of time filed
  Appellants, Alan Richard Klein, et al., asking to April 20, 2009 to file the Reply Brief on the merits. by counsel, David G. Jones
Feb 27 2009Extension of time granted
  On application of Appellants, Alan Richard Klein, et al., and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including April 20, 2009.
Mar 4 2009Opposition filed
  by Appellants, Alan Richard Klein, et al., to request for judicial notice filed Feb. 17, 2009. by counsel, Tamara S. Fong.
Apr 21 2009Reply brief filed (case fully briefed)
Plaintiff and Appellant: Klein, Alan RichardAttorney: David Gary Jones   crc.8.25(b)
May 19 2009Application to file amicus curiae brief filed
  Union Pacific Railroad Company by Joseph P. Macovich, counsel
May 26 2009Permission to file amicus curiae brief granted
  Union Pacific Railroad Company by Joseph P. Mascovich, counsel
May 26 2009Amicus curiae brief filed
Amicus curiae: Union Pacific Railroad CompamyAttorney: Joseph P. Mascovich   The application of Union Pacific Railroad Company for permission to file an amicus curiae brief in support of United States of America, et al., is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Jun 3 2009Note: Mail returned (unable to forward)
  Attorney Colette Maria Asel of Craig Hartsuyker Law Offices- for appellant David Anderberg.
Jun 17 2009Response to amicus curiae brief filed
Plaintiff and Appellant: Klein, Alan RichardAttorney: David Gary Jones   crc.8.25(b) Alan richard Klein, et al., appellants by David Jones, counsel
Jun 16 2009Request for judicial notice filed (Grant or AA case)
Plaintiff and Appellant: Klein, Alan RichardAttorney: David Gary Jones   Alan Richard Klein, et al., appellants by Daivd G. Jones, counsel
Jun 29 2009Received:
  Union Pacific Railroad Company's ( Amicus Curiae) oppostion to Appellant's motion for judicial notice. by counsel, Joseph P. Mascovich
Jul 10 2009Received:
  Amicus Curiae - Union Pacific Railroad Company request for leave to file Union Pacific Railroad Company's opposition to appellant's motion for judicial notice. by Joseph Mascovich.
Jul 16 2009Order filed
  The application of Amicus Curiae, Union Pacific Railroad Company for permission to file an opposition to appellant's motion for judicial notice is hereby granted.
Jul 16 2009Opposition filed
Amicus curiae: Union Pacific Railroad CompamyAttorney: Joseph P. Mascovich   By amicus curiae, Union Pacific Railroad Company to appellant's request for judicial notice. by Joseph P. Mascovich, counsel
Jul 27 2009Note: Mail returned (unable to forward)
  Colette Maria Asel of Carig Hatsuyker Law Office.
Nov 13 2009Note:
  Left message on Frederick D. Baker's (415) 781-7900 voicemail that a application for relief from default is needed in order for staff to accept filing of Amicus Curiae Brief.
Nov 16 2009Application for relief from default filed
  Attorney Frederick D. Baker for Amicus Curiae P.G. & E. et al.
Nov 12 2009Application to file amicus curiae brief filed
  untimely Amicus Curiae Brief of P.G.& E., et al. by counsel, Frederick D. Baker.
Nov 19 2009Permission to file amicus curiae brief granted
  Pacific Gas & Electric Company, Southern California Edison Company, Southern California Gas Company, and San Diego Gas & Electric Company by Frderick D. Baker, counsel
Nov 19 2009Amicus curiae brief filed
Amicus curiae: Southern California Edison CompanyAttorney: Frederick D. Baker   The application of Pacific Gas & Electric Company, Southern California Gas Company and San Diego Gas & Electric Company for permission to file an amicus curiae brief in support of Appellants is hererby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Dec 10 2009Response to amicus curiae brief filed
Plaintiff and Appellant: Klein, Alan RichardAttorney: Tamara Shirley Fong   8.25b
Feb 5 2010Received:
  notice of unavailability from appellants - Alan Richard Klein and Sheryll Klein counsel by David G. Jones
Mar 2 2010Filed:
  Letter from David G. Jones, counsel for appellants Klein et al., supplementing notice of unavailability.
Mar 30 2010Order filed
  The above entitled matter is retitled as follows: ALAN RICHARD KLEIN et al., Plaintiffs and Appellants, v. UNITED STATES OF AMERICA et al., Defendants and Respondents.
Mar 30 2010Case ordered on calendar
  to be argued on Thursday, May 6, 2010, at 9:00 a.m., in San Francisco
Apr 15 2010Request for judicial notice granted
  The motion for judicial notice brought by defendant United States of America, and filed in this court on February 17, 2009, and the motion for judicial notice brought by plaintiffs Alan Richard Klein and Sheryll Klein, and filed in this court on June 16, 2009, are granted.
Apr 28 2010Letter sent to:
  each non-amicus party counsel appearing at oral argument, from the Clerk of the Court: "The court has asked me to inform counsel in cases that will be argued at the May 3-6, 2010, oral argument calendar in San Francisco that Justice Joyce L. Kennard will be unable to be present at argument due to unexpected surgery. Upon stipulation of all parties in a case, Justice Kennard will participate in the deliberations and decision in this matter by reviewing the complete videotape recording of the argument and considering all of the written materials in each case. In the absence of the court's receipt of a written stipulation by all parties in a case, the court will decide whether to continue the matter to a future oral argument calendar or to ask the Chief Justice to assign a justice pro tempore who will participate in place of Justice Kennard at the May 3-6, 2010, sessions. "Please telephonically inform Steve Rockwell, Senior Deputy Clerk, at (415) 865-7011 as soon as possible whether the party(ies) you represent will or will not stipulate to Justice Kennard's participation in the case, even though she will not be present at oral argument. Please execute the attached written stipulation and returning it by fax on or before Friday, April 30, 2010. Submit the original signed stipulation to the court either by overnight mail or by bringing the document to the court on the day of argument."
Apr 28 2010Stipulation filed
  Stipulation by counsel David G. Jones, that appellants Klein et al. have no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
Apr 29 2010Stipulation filed
  Stipulation by counsel Julie Zatz, that appellants United States of America et al. have no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 6 2010Cause argued and submitted
 
Jul 23 2010Notice of forthcoming opinion posted
  To be filed Monday, July 26, 2010 at 10 a.m.

Briefs
Nov 18 2008Opening brief on the merits filed
 
Feb 17 2009Answer brief on the merits filed
 
Apr 21 2009Reply brief filed (case fully briefed)
Plaintiff and Appellant: Klein, Alan RichardAttorney: David Gary Jones  
May 26 2009Amicus curiae brief filed
Amicus curiae: Union Pacific Railroad CompamyAttorney: Joseph P. Mascovich  
Jun 17 2009Response to amicus curiae brief filed
Plaintiff and Appellant: Klein, Alan RichardAttorney: David Gary Jones  
Nov 19 2009Amicus curiae brief filed
Amicus curiae: Southern California Edison CompanyAttorney: Frederick D. Baker  
Dec 10 2009Response to amicus curiae brief filed
Plaintiff and Appellant: Klein, Alan RichardAttorney: Tamara Shirley Fong  
Brief Downloads
application/pdf icon
S165549_2_appellants_opening_brief_on_the_merits.pdf (472553 bytes) - Appellants' Opening Brief on the Merits
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S165549_3_respondent_united_states_of_america_answer_brief_on_the_merits.pdf (1785714 bytes) - Respondent, United States of America, Answer Brief on the Merits
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S165549_4_appellants_opposition_to_motion_for_judicial_notice_.pdf (221942 bytes) - Appellants' Opposition to Motion for Judicial Notice
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S165549_5_appellants_reply_brief_on_the_merits.pdf (1020523 bytes) - Appellants' Reply Brief on the Merits
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S165549_6_appellants_motion_for_judicial_notice.pdf (350468 bytes) - Appellants' Motion for Judicial Notice
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Feb 1, 2011
Annotated by rgoral

(Opinion by Kennard, J., with George, C. J., Werdegar, and Moreno, JJ., concurring)

FACTS:

The plaintiff, Alan Klein, was recreationally riding a bicycle on a paved road in a national forest in California. He was hit by a car driven by Anderberg, a volunteer working in the forest. As a result of the collision, the bicycle driver sustained a severe bodily injury. Together with his wife, he filed a complaint against the United States government (the owner of the national forest land and the road within the forest) and the driver (a part-time employee of the United States Fish and Wildlife Service). Having exhausted administrative remedies, Kleins sued in federal court.

PROCEDURAL HISTORY:

As against the United States, the suit was brought under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1), which makes the United States government amenable to suit by, and liable to, private persons in cases “where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”. Plaintiffs pleaded two alternative theories of negligence alleging that the defendant: (a) failed to properly maintain the road on which the collision took place; and (b) was vicariously liable for the vehicular negligence of its worker.

The United States moved for summary judgment and the district court, assuming the disputed allegations of the plaintiff that Anderson was a United States employee acting within the course and scope of his employment, granted the motion. The court relied on the exculpatory provision of the California Civil Code, § 846, which provides that, as a general rule, an owner of land owes no duty of care to keep it safe for entry or use by others for any recreational purpose or to give warning of hazards on the property.

Plaintiffs appealed to the Ninth Circuit Court of Appeals which found that the outcome of the case depended on whether the Civil Code § 846 immunized the United States from vicarious liability for Anderberg’s negligence, and that there exists no controlling authority squarely on the matter. Therefore, pursuant to California Rules of Court, rule 8.548, the Ninth Circuit certified the issue to the Supreme Court of California.

ISSUE:

Does the California Civil Code, § 846, immunize a landowner from liability for acts of vehicular negligence committed by the landowner's employee in the course and scope of employment that caused personal injury to a recreational user of that land?

HOLDING:

NO: despite the broad immunity extended by § 846 to a landowner, he still owes a basic duty of due care to a recreational user of the owner’s land when involved in potentially hazardous activities and remains liable to the user for negligent activities on the property by, or attributable to, the owner, including acts of vehicular negligence by the landowner's employee when committed in the course and scope of employment.

ANALYSIS:

Statutory interpretation

In its analysis, the Court relied primarily on the statutory interpretation, finding its outcome consistent with the legislative history and public policy considerations.

The Court started its argument by noting that Section 846 does not create a tort immunity in certain instances of landowner’s negligence; rather, it negates the tort itself by removing its necessary element, i.e., the duty of care owed by the owner to the injured recreational land user. But, observed the Court, the owner is relieved of only those duties which the statute expressly provides and, therefore, is not released from liability for breach of other duties he still owes to persons using his land for recreation. In particular, he still owes basic duty of due care while engaged in potentially hazardous activities such as driving a motor vehicle.

The statutory language that releases landowners from the duty to “keep the premises safe” pertains to the property-based duties underlying premises liability, which does not include vehicular negligence. If the Legislature wanted to grant landowners a broad immunity, reasoned the Court, it could have done so by simply relieving the owners from any duty of care to avoid personal injury to recreational users of their land.

Moreover, the statutory descriptions of the safe-premises immunity and the hazard-warning immunity differ: unlike the latter, the former makes no reference to “uses of” or “activities on” the owner’s land. This, in the Court’s opinion, should be construed as the Legislature’s intent to tailor the safe-premises clause narrowly.

Finally, a broad reading of the safe-premises immunity would negate all torts arising from the owner’s breach of duty of care to avoid personal injury to recreational users, including claims based on a failure to warn of potentially hazardous activities. Such construction would render the separate hazard-warning immunity superfluous, which in the eyes of the Court would be unreasonable.

The narrow construction of the safe-premises immunity is not inconsistent with Section 846’s fourth paragraph which deprives landowners of immunity from liability for “willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity”. The Court held that the warning against “dangerous activity” refers to activities of third parties, such as recreational users, and not the owner himself.

Therefore, the Court reached the conclusion that although Section 846 creates to the benefit of landowners a broad immunity from liability vis-à-vis a recreational users of the land, such immunity is not all-encompassing. The safe-premises clause should be understood as “a premises liability exemption statute”.

Treatment of earlier precedents

Deciding the issue certified by the Ninth Circuit, the Supreme Court disapproved the holding of Shipman v. Boething Treeland Farms, Inc., 77 Cal.App.4th 1424, 92 Cal.Rptr.2d 566 in which the Court of Appeal had held that that the immunity of a landowner under Section 846 shields from liability for vehicular negligence.

The Court distinguished Klein from Ornelas v. Randolph (1993) 4 Cal.4th 1095, 17 Cal.Rptr.2d 594, 847 P.2d 560, where the Court had previously held the Section 846 safe-premises to protect a farm owner from liability for personal injuries suffered by a child playing on top of the farm machinery after a metal pipe that fell off and hit the child. The Court explained that Ornelas applied to injuries caused by a dangerous condition of the property and not the landowner’s activity thereon. In making the distinction between the condition of the premises and active conduct, the Supreme Court confirmed its earlier holding in Oettinger v. Stewart (1944) 24 Cal.2d 133, 138, 148 P.2d 19.

Dissent (Baxter, J., with Chin and Corrigan, JJ. concurring):

In his dissent, Justice Baxter questioned the statutory interpretation of Section 846 offered by the Court in the majority opinion.

Baxter pointed out that the main purpose of the Legislature when it adopted Section 846 was to encourage landowners to allow recreational use of their properties by uninvited, nonpaying visitors without fear of liability for injuries caused by the owner’s negligence to a guest user. Baxter argued that neither the text of the statute, nor legislative history or earlier precedent suggested the intent of the lawmaker was to create a distinction between the immunity affordable to property owners depending on whether the injury to a visitor resulted from static physical conditions of the property or the owner’s activities. Since owners normally use their properties rather than merely maintain them, they should be equally immunized from liability for both “conditions” and “use” of the property.

RELATED CASES:

Oettinger v. Stewart, 24 Cal.2d 133

Rowland v. Christian , 69 Cal.2d 108

TAGS:

landowner immunity, recreational use of land, duty of care, hazardous conditions, premises liability, vehicular negligence, statutory interpretation, legislative intent