CACI 1010 Affirmative Defense—Recreation Immunity—Exceptions (Civ. Code, § 846)

New September 2003; Revised October 2008, December 2014, May 2017, November 2017, May 2021

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This instruction sets forth the statutory exceptions to recreational immunity. (See Civ. Code, § 846.) In the opening paragraph, if the plaintiff was not the recreational user of the property, insert the name of the person whose conduct on the property is alleged to have caused plaintiff’s injury. Immunity extends to injuries to persons who are neither on the property nor engaged in a recreational purpose if the injury was caused by a recreational user of the property. (See Wang v. Nibbelink (2016) 4 Cal.App.5th 1, 17 [208 Cal.Rptr.3d 461].)

Choose one or more of the optional exceptions according to the facts. Depending on the facts, the court could instruct that the activity involved was a “recreational purpose” as a matter of law. For a comprehensive list of “recreational purposes,” refer to Civil Code section 846.

Whether the term “willful or malicious failure” has a unique meaning under this statute is not entirely clear. One court construing this statute has said that three elements must be present to raise a negligent act to the level of willful misconduct: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. (See New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 689–690 [217 Cal.Rptr. 522].)

For the second exception involving payment of a fee, insert the name of the defendant if the defendant is the landowner. If the defendant is someone who is alleged to have created a dangerous condition on the property other than the landowner, select “the owner.” (See Pacific Gas & Electric Co. v. Superior Court (2017) 10 Cal.App.5th 563, 566 [216 Cal.Rptr.3d 426].)

Federal courts interpreting California law have addressed whether the “express invitation” must be personal to the user. The Ninth Circuit has held that invitations to the general public do not qualify as “express invitations” within the meaning of section 846. In Ravell v. United States (9th Cir. 1994) 22 F.3d 960, 963, the Ninth Circuit held that California law requires a personal invitation for a section 846 invitation, citing Johnson v. Unocal Corp. (1993) 21 Cal.App.4th 310, 317 [26 Cal.Rptr.2d 148]. However, the issue has not been definitively resolved by the California Supreme Court.

•Recreational Immunity. Civil Code section 846.

•“[A]n owner of … real property owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give recreational users warning of hazards on the property, unless: (1) the landowner willfully or maliciously fails to guard or warn against a dangerous condition, use, structure or activity; (2) permission to enter for a recreational purpose is granted for a consideration; or (3) the landowner expressly invites rather than merely permits the user to come upon the premises.” (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1099–1100 [17 Cal.Rptr.2d 594, 847 P.2d 560].)

•“Generally, whether one has entered property for a recreational purpose within the meaning of the statute is a question of fact, to be determined through a consideration of the ‘totality of the facts and circumstances, including … the prior use of the land. While the plaintiff’s subjective intent will not be controlling, it is relevant to show purpose.’ ” (Ornelas, supra, 4 Cal.4th at p. 1102, internal citation omitted.)

•“The phrase ‘interest in real property’ should not be given a narrow or technical interpretation that would frustrate the Legislature’s intention in passing and amending section 846.” (Hubbard v. Brown (1990) 50 Cal.3d 189, 196 [266 Cal.Rptr. 491, 785 P.2d 1183].)

•“[D]efendants’ status as business invitees of the landowner does not satisfy the prerequisite that the party seeking to invoke the immunity provisions of section 846 be ‘[a]n owner of any estate or any other interest in real property, whether possessory or nonpossessory.’ Although such invitee may be entitled to be present on the property during such time as the work is being performed, such presence does not convey any estate or interest in the property.” (Jenson v. Kenneth I. Mullen, Consulting Engineers, Inc. (1989) 211 Cal.App.3d 653, 658 [259 Cal.Rptr. 552].)

•“Subpart (c) of the third paragraph of section 846 is not limited to injuries to persons on the premises and therefore on its face encompasses persons off-premises such as [plaintiff] and her husband. It is not limited to injuries to recreational participants. Had the Legislature wanted to narrow the third paragraph’s immunity to injured recreational users, it could have done so, as it did in the first paragraph.” (Wang, supra, 4 Cal.App.5th at p. 17.)

•“The concept of willful misconduct has a well-established, well-defined meaning in California law. ‘Willful or wanton misconduct is intentional wrongful conduct, done either with a knowledge that serious injury to another will probably result, or with a wanton and reckless disregard of the possible results.’ ” (New, supra, 171 Cal.App.3d at p. 689, internal citations omitted.)

•“Clearly, consideration means some type of entrance fee or charge for permitting a person to use specially constructed facilities. There are many amusement facilities in government-owned parks that charge admission fees and a consideration in this or a similar context was intended.” (Moore v. City of Torrance (1979) 101 Cal.App.3d 66, 72 [166 Cal.Rptr. 192], disapproved of on other grounds in Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707 [190 Cal.Rptr. 494, 660 P.2d 1168].)

•“We conclude that the consideration exception to recreational use immunity does apply to [defendant] even though [plaintiff]’s fee for recreational access to the campground was not paid to it … . We hold that the payment of consideration in exchange for permission to enter a premises for a recreational purpose abrogates the section 846 immunity of any nonpossessory interest holder who is potentially responsible for the plaintiff’s injuries, including a licensee or easement holder who possesses only a limited right to enter and use a premises on specified terms but no right to control third party access to the premises. The contrary interpretation urged by [defendant], making immunity contingent not on payment of consideration but its receipt, is supported neither by the statutory text nor the Legislature’s purpose in enacting section 846, which was to encourage free public access to property for recreational use. It also would lead to troubling, anomalous results we do not think the Legislature intended. At bottom, construing this exception as applying only to defendants who receive or benefit from the consideration paid loses sight of the fact that recreational immunity is merely a tool. It is the Legislature’s chosen means, not an end unto itself.” (Pacific Gas & Electric Co., supra, 10 Cal.App.5th at p. 566.)

•“A landowner must gain some immediate and reasonably direct advantage, usually in the form of an entrance fee, before the exception to immunity for consideration under section 846 comes into play.” (Johnson, supra, 21 Cal.App.4th at p. 317.)

•“The purpose of section 846 is to encourage landowners to permit people to use their property for recreational use without fear of reprisal in the form of lawsuits. The trial court should therefore construe the exceptions for consideration and express invitees narrowly. (Johnson, supra, 21 Cal.App.4th at p. 315.)

•“The language of section 846, item (c), which refers to ‘any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner’ (italics added) does not say a person must be invited for a recreational purpose. The exception instead defines a person who is ‘expressly invited’ by distinguishing this person from one who is ‘merely permitted’ to come onto the land.” (Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 114 [96 Cal.Rptr.2d 394], original italics.)

•“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.” (Klein v. United States of America (2010) 50 Cal.4th 68, 72 [112 Cal.Rptr.3d 722, 235 P.3d 42].)