The consideration exception to CA’s recreational use immunity statute is contingent upon payment of consideration, not its receipt by the party seeking immunity.
Edited by: Charles Redfield
Pacific Gas and Electric Company v. The Superior Court of San Mateo County (Rowe)
Court of Appeal, First Appellate District (April 5, 2017)
In Pacific Gas and Electric Company v. Superior Court (Rowe), the Court of Appeal was called upon to decide an issue of first impression concerning the “consideration exception” to California’s recreational use immunity statute – specifically, whether the exception applied even if the Defendant seeking to claim immunity received no portion of the consideration paid.
California Civil Code § 846, the recreational use immunity statute, confers property owners with immunity from liability arising from the recreational use of their property. Specifically, in pertinent part, the statute provides: “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 those premises to persons entering for a recreational purpose, except as provided in this section.”
This statute, which was enacted to encourage property owners to allow the general public to engage in recreational activities free of charge on privately owned property, also includes three enumerated exceptions, pertaining to: (i) victims of willful or malicious conduct by the owner, (ii) persons who have paid consideration for permission to enter, and (iii) express invitees. In this opinion, the Court of Appeal determined that the second category, i.e., the consideration exception, is not exclusively applicable to the particular landowner who receives the consideration, but rather to all holders of an interest in the property, including a licensee of the property owner – here, PG&E.
This case arose out of an incident that occurred in the summer of 2012 when a twelve-year-old boy, Zachary Rowe, was on a camping trip with his family in San Mateo County Memorial Park and suffered catastrophic injuries when a 75-foot tree fell on his tent at 5:00 a.m. as he lay sleeping. Petitioner PG&E owns and maintains an electricity distribution line in the park that serviced a nearby restroom, and has a license permitting it to enter the park to inspect and maintain its equipment and the vegetation in the vicinity of its power lines, including near the campsite where Zachary was injured. Zachary’s family paid an entrance fee to camp to the park’s owner, the County of San Mateo, but paid nothing to PG&E.
Zachary, through his guardian ad litem, brought suit against PG&E, the County and others. He asserted a single cause of action against PG&E, essentially alleging that PG&E was negligent in its responsibility to inspect and maintain its electrical lines and adjacent areas in a safe condition. PG&E moved for summary judgment on the ground that it owed Zachary no duty of care as a matter of law pursuant to the recreational use immunity statute. The trial court denied the motion, but certified the question as appropriate for interlocutory review by the Court of Appeal.
Ultimately, the Court of Appeal affirmed the trial court’s denial of PG&E’s motion for summary judgment, concluding that the consideration exception to recreational use immunity applied to PG&E, even though Zachary’s fee for recreational access to the campground was not paid to it.
In explaining this determination, the Court of Appeal extensively discussed the text of the statute as well as its purpose. Civil Code § 846 does not include language specifying that the consideration must be paid to the landowner invoking the immunity. The statute is intended to function as an inducement to encourage landowners to permit free recreational use of their property by removing a disincentive for doing so, i.e., potential tort liability. Thus, the immunity conferred by § 846 is a means to an end. Once permission to enter for a recreational purpose is conditioned upon the payment of a consideration, the property is no longer open to the public to recreate free of charge and the reason for the immunity evaporates.
The Court also analyzed the legislative history, public policy considerations and case law from other jurisdictions, finding that they all supported the same conclusion: “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.”
In this case, the Court of Appeal established that the consideration exception to the recreational use immunity statute functions as a bright line rule that does not differentiate among the holders of different types of interests in the property. When an individual pays consideration for permission to enter property for a recreational purpose, Civil Code § 846 does not apply.
For a copy of the complete decision, see: PG&E v. Sup. Ct