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The Importance of Trail Immunity

January 27, 2022

California

,

United States of America

Issue

Are there any exceptions to public entity trail immunity for injuries caused by a condition of a trial?

Conclusion

Cal. Gov. Code § 831.4 provides that public entities are not liable for injuries caused by a condition of a trail that is not a street or highway and is used for fishing, hunting, camping, hiking, riding, water sports, recreational activities, or accessing scenic areas.

The immunity set out in Cal. Gov. Code § 831.4 is absolute. (Astenius v. State)

No decisions were identified that set out or considered any exceptions to trail immunity where the injury was caused by a condition of a trail; however, a discussion of the parameters of trail immunity may be instructive.

Whether an area is a trail depends on a number of considerations, including the accepted definitions of the property, the purpose for which the property is designed and used, and the purpose of the immunity statute. A trail need not provide access to anything for immunity to apply. The immunity applies to both improved and unimproved land. (Astenius v. State, Giannuzzi v. State of California, Amberger-Warren v. City of Piedmont)

The trail immunity set out in Cal. Gov. Code § 831.4 applies to paved trails. A paved pathway in a park is a trail for the purpose of trail immunity. (Amberger-Warren v. City of Piedmont, Armenio v. County of San Mateo)

Sidewalks are distinguishable from trails. Sidewalks are next to, or part of, a street or highway. (Amberger-Warren v. City of Piedmont)

The fact that a trail has a dual use (recreational and nonrecreational) does not undermine trail immunity. (Loeb v. Cnty. of San Diego)

Cal. Civ. Code § 846 denies a property owner immunity from injuries sustained on its property where permission to enter was granted for consideration. However, this section does not apply to public entities. (Loeb v. Cnty. of San Diego)

Law

Cal. Gov. Code § 831.4 provides that public entities are not liable for injuries caused by a condition of a trail that is not a street or highway and is used for fishing, hunting, camping, hiking, riding, water sports, recreational activities, or accessing scenic areas:

A public entity, public employee, or a grantor of a public easement to a public entity for any of the following purposes, is not liable for an injury caused by a condition of:

(a) Any unpaved road which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas and which is not a (1) city street or highway or (2) county, state or federal highway or (3) public street or highway of a joint highway district, boulevard district, bridge and highway district or similar district formed for the improvement or building of public streets or highways.

(b) Any trail used for the above purposes.

(c) Any paved trail, walkway, path, or sidewalk on an easement of way which has been granted to a public entity, which easement provides access to any unimproved property, so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of any condition of the paved trail, walkway, path, or sidewalk which constitutes a hazard to health or safety. Warnings required by this subdivision shall only be required where pathways are paved, and such requirement shall not be construed to be a standard of care for any unpaved pathways or roads.

In Armenio v. County of San Mateo, 33 Cal.Rptr.2d 631, 28 Cal.App.4th 413 (Cal. App. 1994), the California Court of Appeal for the First District held that Cal. Gov. Code § 831.4(b) applies to paved trails. In that case, the plaintiff was injured while riding his bike along Sawyer Camp Trail in the San Francisco Watershed. He alleged that he fell as a result of a dangerous condition created by improper patching of the trail. The defendant county successfully moved for summary judgment on the ground of immunity under Cal. Gov. Code § 831.4. The plaintiff appealed, arguing that the immunity granted by section 831.4 does not apply to paved trails on land owned in fee by a public entity. The Court disagreed, noting that subdivision (b) says "any trail" (at 634-635):

Appellant contends the Legislature intended section 831.4 immunity to apply only to roads or trails providing access to the recreational activities enumerated in subdivision (a), or to unimproved property, and not to trails on which the activity takes place. We agree with the conclusion reached in Giannuzzi v. State of California, supra, 17 Cal.App.4th at pages 466-467, 21 Cal.Rptr.2d 335, that the statute is not so limited.

In Giannuzzi the plaintiff was injured while riding his motorcycle on a dirt trail over the top of an unimproved hill in a state vehicular recreation park. The park was specifically established to provide trails for the recreational use of off-highway vehicles. Giannuzzi observed that as originally enacted, section 831.4 had two subjects of immunity--subdivision (a), dealing with "[a]ny unpaved road which provides access to" enumerated recreational activities, and subdivision (b), covering "[a]ny hiking, riding, fishing or hunting trail." (Stats.1963, ch. 1681, § 1, p. 3273.) When the statute was amended in 1970, the list of enumerated activities in subdivision (a) was expanded, and subdivision (b) was rephrased to its present language of "[a]ny trail used for the above purposes." (Stats.1970, ch. 807, § 2, p. 1530.) Subdivision (c), concerning easements over private property, was added in 1979. (Stats.1979, ch. 1010, § 1, p. 3434.) "The exclusive emphasis of subdivisions (a) and (c) ... is, and has always been, access. Subdivision (b), however, has since its inception had a more substantive aspect, i.e., use of trails for certain recreational activities without regard as to how the persons involved came to be at the spot where injuries occurred." (Giannuzzi v. State of California, supra, 17 Cal.App.4th at p. 466, 21 Cal.Rptr.2d 335.) We also observe that were the word "purpose" used in the singular in subdivision (b), i.e., "above purpose," it might logically refer to the "above purpose" of access. However, because it is used in the plural, the word "purposes" in subdivision (b), more logically refers to the multiple recreational activities of subdivision (a).

[28 Cal.App.4th 418] Appellant further contends that even if immunity is afforded for injuries occurring on trails designed for recreational purposes, such immunity does not extend to paved trails. He argues that if immunity applied to both paved and unpaved trails, there would be no need for section 831.4, subdivision (c), which specifically refers to paved trails, paths, etc. However, subdivision (c) is not concerned with property that public entities own in fee, but with easements granted to public entities specifically to provide access to unimproved property.

The words of a statute are to be accorded their usual, ordinary import. Moreover, they are to be construed in context, keeping in mind the nature and purpose of the statute in which they appear, and the various parts of a statute are to be harmonized by considering the particular clause or

Page 635

section in the context of the statutory framework as a whole. (Moyer v. Workmen's Comp. Appeals Bd., supra, 10 Cal.3d at p. 230, 110 Cal.Rptr. 144, 514 P.2d 1224.) Unlike subdivision (a) of section 831.4, which refers specifically to "unpaved" roads, and subdivision (c), which refers specifically to "paved" trails, paths, etc., subdivision (b) refers to "[a]ny" trail. The logical inference of the all-encompassing "any" in subdivision (b), particularly in relationship to the limiting adjectives in its sister subdivisions, is that the nature of the trail's surface is irrelevant to questions of immunity.

The California Court of Appeal for the First District again concluded that a paved pathway in a park is a trail in Amberger-Warren v. City of Piedmont, 49 Cal.Rptr.3d 631, 143 Cal.App.4th 1074 (Cal. App. 2006). The Court explained that whether an area is a trail depends on a number of considerations, including the accepted definitions of the property, the purpose for which the property is designed and used, and the purpose of the immunity statute. The pathway in issue was a trail because a paved pathway through a park is synonymous with "trail," it was used for a recreational purpose, and treating it as a trail was in line with the purposes of the statute (at 634-635):

Whether the property is a trail depends on a number of considerations, including accepted definitions of the property (Carroll v. County of Los Angeles (1997) 60 Cal.App.4th 606, 609, 70 Cal.Rptr.2d 504 (Carroll); Treweek, supra, 85 Cal. App.4th at p. 230, 101 Cal.Rptr.2d 883), the purpose for which the property is designed and used, and the purpose of the immunity statute (Farnham v. City of Los Angeles (1998) 68 Cal.App.4th 1097 1103, 80 Cal. Rptr.2d 720 (Farnham)). Each of these three factors militates in favor of immunity in this case.

First, the pathway constitutes a trail under accepted definitions because it is a paved pathway through a park, and a "path," as Carroll, supra, 60 Cal.App.4th at p. 609, 70 Cal.Rptr.2d 504, observed, is synonymous with a "trail." (See ibid. [dictionary definition of a trail as "`a marked or established path or route'. . . ."]; Treweek, supra, 85 Cal.App.4th at p. 230, 101 Cal.Rptr.2d 883 [a trail "consist[s] primarily of a path or track"]; compare Treweek, supra, at p. 230, 101 Cal.Rptr.2d 883 [dictionary and judicial definitions did not suggest that a "ramp" was synonymous with a "trail"].)

Second, the pathway qualifies as a trail because it is designed and used for a recreational purpose, i.e., bringing a dog to an unleashed area of a dog park, a form of recreation for both dog and walker. (See generally Armenio, supra, 28 Cal.App.4th at p. 418, 33 Cal.Rptr.2d 631 [the purpose for which trail is used "is ordinarily viewed as a factual issue, but it becomes a question of law if only one conclusion is possible"].) The pathway is indistinguishable in this regard from the paved paths found to be trails in other cases. (Farnham, supra, 68 Cal.App.4th at pp. 1099, 1102-1103, 80 Cal.Rptr.2d 720 [bicycle path], Carroll, supra, 60 Cal.App.4th at p. 607, 70 Cal. Rptr.2d 504 [bike path], and Armenio, supra, 28 Cal.App.4th at pp. 415, 418, 33 Cal.Rptr.2d 631 [path for walking, running, bike riding, and horseback riding].) This conclusion obtains whether the pathway is viewed as providing access to the recreational activity, or the activity is deemed to occur on the pathway itself. (Treweek, supra, 85 Cal.App.4th at pp. 224-229, 101 Cal.Rptr.2d 883.) Plaintiff asserts that trails have heretofore been found to exist only in "remote areas," but the bicycle path deemed to be a trail in Farnham, supra, 68 Cal.App.4th at pp. 1098-1099, 80 Cal.Rptr.2d 720, could not have been too remote because it was located in the city of Los Angeles. Urban recreational areas fulfill many of the same purposes as remote areas. Neither public policy nor the statute suggest any such differentiation.

Third, the pathway should be treated as a trail to fulfill the purpose of the statute, because public entities could well be inclined to close dog parks if they were exposed to liability for accidents like the one here. (Compare Treweek, supra, 85 Cal.App.4th at pp. 232-234, 101 Cal. Rptr.2d 883 [municipality would be unlikely to close a ramp connecting a dock to a boat or a parking lot absent the extension of immunity].) As the court in Farnham, supra, 68 Cal.App.4th at page 1103, 80 Cal.Rptr.2d 720, observed with respect to a paved bike path, while it is "reasonable that users would expect a paved surface to be appropriately constructed and maintained," "the flip side . . . is the difficulty cities and counties might face in inspection and repair. Paved trails are subject to changing irregularity of surface conditions due to seismic movement, natural settlement,

[49 Cal.Rptr.3d 635]

or stress from traffic. Additionally, the weather can cause dirt or sand to be blown on a trail, creating an unsafe surface for almost any user. Rocks, tree branches and other debris often find their way onto a trail. . . . In today's litigious society, it does not take a very large crystal ball to foresee the plethora of litigation cities or counties might face over bicycle paths . . . . The actual cost of such litigation, or even the specter of it, might well cause cities or counties to reconsider allowing the operation of a bicycle path. . . ." For all these same reasons, the purpose of the statute would be well-served by the recognition of immunity here.

The plaintiff argued that the pathway in issue was not encompassed by trail immunity because the pathway was a sidewalk. However, the Court found that sidewalks are next to, or part of, a street or highway and that paved paths in parks are distinguishable (at 635-636):

Plaintiff asserts that this pathway is a "sidewalk," and argues that a sidewalk cannot constitute a "trail" under section 831.4, subdivision (b), because subdivision (c) of the statute distinguishes between trails and sidewalks.2 Subdivision (c) provides immunity for injuries caused by the condition of: "Any paved trail, walkway, path, or sidewalk on an easement of way which has been granted to a public entity, which easement provides access to any unimproved property, so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of any condition of the paved trail, walkway, path, or sidewalk which constitutes a hazard to health or safety. Warnings required by this subdivision shall only be required where pathways are paved, and such requirement shall not be construed to be a standard of care for any unpaved pathways or roads." (Italics and underlining added.)

[...]

A "sidewalk" is ordinarily defined as something that is next to, or part of, a street or highway. (Merriam-Webster's Collegiate Dict. (11th ed.2004) p. 1158 [the usual meaning of "sidewalk" is that of a "paved walk for pedestrians at the side of a street"]; Black's Law Dict. (6th ed.1990) p. 1381 [a sidewalk is "[t]hat part of a public street or highway designed for the use of pedestrians, being exclusively reserved for them, and constructed somewhat differently than other portions of the street"]; Veh.Code, § 555 [a sidewalk is "that portion of a highway, other than the roadway, set apart by curbs, barriers, markings or other delineation for pedestrian travel"]; Sts. & Hy.Code, § 5600 [defining a sidewalk, for purposes of the chapter on sidewalk maintenance, to include enumerated objects "in the area between the property line and the street line"]; see also In re Devon C. (2000) 79 Cal.App.4th 929, 932-933, 94 Cal.Rptr.2d 513 [minor riding a bicycle on a sidewalk was riding on a "street" within the meaning of bicycle helmet law].)

Paved paths in public parks have thus been distinguished from sidewalks if they were not located on or adjacent to a street or highway. (Hoskinson v. City of Iowa

[49 Cal.Rptr.3d 636]

City (Iowa 2001) 621 N.W.2d 425, 426, 428-429 [appellant fell while walking his dog on an asphalt walkway in a city park; collecting cases from around the country construing the word "sidewalk" to refer to "a walkway that is a part of the street or is at or along the side of the street"]; Stabley v. Park Authority (1998) 228 Mich.App. 363, 579 N.W.2d 374, 375, 377-378 [rollerblade became wedged in crack on paved path in city park].) Here, since the pathway was not on or adjacent to a street or highway, it was not a sidewalk as that term is ordinarily defined.

In Giannuzzi v. State of California, 21 Cal.Rptr.2d 335, 17 Cal.App.4th 462 (Cal. App. 1993), the California Court of Appeal for the First District held that a trail need not provide access to anything for immunity to apply (at 337-338):

Several conclusions are obvious. The exclusive emphasis of subdivisions (a) and (c) of section 831.4 is, and has always been, access. Subdivision (b), however, has since its inception had a more substantive aspect, i.e., use of trails for certain recreational activities without regard as to how the persons involved came to be at the spot where injuries occurred. It is equally apparent that the 1970 amendment recasting subdivision (b) in its current form employed the "used for the above purposes" language to serve as a shorthand incorporation by reference only of the recreational

Page 338

activities concurrently being expanded in subdivision (a). 3 The only thing "above" subdivision (b) is subdivision (a), and the most obvious "purposes" thus incorporated would be the growing number of recreational activities listed in subdivision (a).

In light of the foregoing, section 831.4 should be read as embracing three related immunities: (1) subdivision (a) precludes liability for injuries caused [17 Cal.App.4th 467] by the condition of unpaved roads providing access to "fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas," (2) subdivision (b) precludes liability for injuries caused by the condition of trails which are used for these activities, and (3) subdivision (c) precludes liability for injuries caused by the condition of any paved trail, walkway, path or sidewalk located on an "easement of way which ... provides access to any unimproved property."

As thus interpreted, section 831.4 poses no difficulty of application in the case at hand. Although the purpose for which a road or trail was being used is ordinarily viewed as an issue of fact (Hernandez v. Imperial Irr. Dist. (1967) 248 Cal.App.2d 625, 627, 56 Cal.Rptr. 811), it becomes one of law if only one conclusion is possible. (Cf. Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 810, 205 Cal.Rptr. 842, 685 P.2d 1193.) From the time of the State's demurrer to his original complaint, plaintiff knew that section 831.4 would figure in the litigation. He was therefore obligated to "plead facts sufficient to show his cause of action lies outside the breadth of any applicable statutory immunity." (Keyes v. Santa Clara Valley Water Dist. (1982) 128 Cal.App.3d 882, 886, 180 Cal.Rptr. 586.) He failed. Fair inferences from the amended complaint are that plaintiff's purpose for being within the Carnegie State Vehicular Recreation Park 4 was the recreational driving of his vehicle, and that he was injured during the course of that activity. In these circumstances the application of section 831.4 is established as a matter of law. Whether the complaint otherwise states a cause of action for dangerous condition liability is made immaterial by this conclusion. (See § 815, subd. (b); Winterburn v. City of Pomona (1986) 186 Cal.App.3d 878, 882, 231 Cal.Rptr. 105.)

In Astenius v. State, 23 Cal.Rptr.3d 877, 126 Cal.App.4th 472 (Cal. App. 2005), the California Court of Appeal for the Second District held that the immunity set out in Cal. Gov. Code § 831.4 is absolute. The plaintiffs had argued that the immunity only applied to unimproved land, but the Court found that there was no such limiting language in the statute. The plaintiffs also argued that public entities have a duty to warn of dangerous conditions, but the Court rejected this argument as well, stating that nothing about the immunity was conditional (at 476):

Geary2 argues section 831.4 applies only to unimproved land. In support of her argument, Geary cites a legislative committee comment to section 831.2. The comment states that sections 831.2 and 831.4 provide absolute immunity from liability for injuries resulting from the natural conditions of a state park area where the only improvements are recreational roads and trails. (See Legis. Com. com., reprinted at 32, West's Ann. Gov.Code (1995) foll. § 831.2, p. 328; id. Deering's Ann. Gov.Code (1982) foll. § 831.2, p. 251.)

Geary's reference to a legislative committee's comment is unconvincing. The best place to find legislative intent is in the language of the statute. When the Legislature has intended to limit governmental immunity to unimproved property, it has expressly said so. (See § 831.2 limiting immunity to injuries arising from "a natural condition of any unimproved public property".) Section 831.4 contains no such limiting language and we decline to add it.

Geary argues the state is not entitled to immunity under section 831.4 because it failed to warn of the dangerous condition. But nothing in section 831.4 makes immunity contingent on giving proper warnings. The immunity granted by section 831.4 is absolute. For the same reason, the fee charged by the state to enter the park did not abrogate the state's immunity. (See Bartlett v. State of California (1988) 199 Cal.App.3d 392, 398, 245 Cal.Rptr. 32.)

In Loeb v. Cnty. of San Diego, 43 Cal.App.5th 421, 255 Cal.Rptr.3d 860 (Cal. App. 2019), the plaintiff tripped and fell on an uneven concrete pathway in a campsite at a county park. She argued that because the pathway was used for accessing the restroom and served to connect the roadway to the bathroom, it was not subject to the trail immunity defense. The defendant county argued that, while the path was used to access the restroom, it was also used by park visitors to engage in recreational activities. The plaintiff countered with the argument that the pathway being used for recreation only partially meant that the county was not entitled to trail immunity. Both the trial court and the Court of Appeal for the Fourth District disagreed with the plaintiff. The Court of Appeal held that the fact that a trail has a dual use (recreational and nonrecreational) does not undermine trail immunity (at 432-434):

The critical dispute in this case revolves around the second immunity factor. Loeb contends the factor requires consideration of the purpose for which the pathway was "designed and used," while the County maintains it requires consideration only of how it was used. We agree with the County, but would conclude the pathway is a trail even if we were to also consider the purpose for which it was designed.

Beginning with the language of section 831.4, we observe that the word "design" appears nowhere in it, while "used for" does. (§ 831.4, subds. (a) - (c); see Hartt v. County of Los Angeles (2011) 197 Cal.App.4th 1391, 1398-1399, 132 Cal.Rptr.3d 27 (Hartt) [it is a "time-honored principle of

[43 Cal.App.5th 433]

statutory interpretation that the appellate court will not look beyond the wording of a statute if it is clear on its face"].) This supports the County's interpretation.

Turning to the cases Loeb cites to support the proposition that the "vital element" in the analysis is "the purpose for which the pathway was created by the government entity that designed and installed it" (bolding and italics omitted), we conclude the cases do not assist her because the design/use distinction was not at issue in any of them. (See Montenegro, supra, 215 Cal.App.4th at p. 930, 155 Cal.Rptr.3d 732 [it was "uncontroverted ... that the pathway was designated by the city as a park and recreational trail when it approved construction"]; Amberger-Warren, supra, 143 Cal.App.4th at p. 1083, 49 Cal.Rptr.3d 631 [finding as a matter of law that a paved pathway in a dog park was a "trail" rather than a "sidewalk" because "no triable issue arises as to a property's status ... simply by virtue of what people may call it"];

[255 Cal.Rptr.3d 869]

Armenio, supra, 28 Cal.App.4th 413, 418, 33 Cal.Rptr.2d 631 [it was undisputed that the trail was "intended to be used for hiking and riding, two of the enumerated activities of section 831.4, subdivision (a)"]; Carroll v. County of Los Angeles (1997) 60 Cal.App.4th 606, 608-610, 70 Cal.Rptr.2d 504 [addressing issues regarding paved surface and access to recreation].) "It is axiomatic that cases are not authority for propositions that are not considered." (California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032 1043, 232 Cal.Rptr.3d 64, 416 P.3d 53.)

Unlike the cases Loeb cites, the design/use distinction was critical to the court's analysis in Burgueno, supra, 243 Cal.App.4th 1052, 197 Cal.Rptr.3d 44. In Burgueno, a public university asserted trail immunity as a defense to a lawsuit brought by the mother and sister of a student who died in a bicycle accident while commuting home on an on-campus bicycle path. (Id. at pp. 1054-1055, 197 Cal.Rptr.3d 44.) The undisputed evidence established that the bike path was designed for the nonrecreational "purpose of ... bicycle transportation to and from the central campus that is separate from automobile traffic." (Id. at p. 1055, 197 Cal.Rptr.3d 44.) But the undisputed evidence also showed that "[s]ome bicyclists use the [path] for recreation. " (Ibid., italics added.) The trial court granted summary judgment in favor of the university on its trail immunity defense, and the Court of Appeal affirmed. (Id. at pp. 1056 1062, 197 Cal.Rptr.3d 44.)

As relevant to the design/use distinction, the Burgueno plaintiffs argued on appeal that trail immunity did not apply because "the bikeway was designed for [the] primary use of bicycle commuting," and the fact that some riders used it for a "secondary" recreational purpose "does not change the primary [nonrecreational] character." (Burgueno, supra, 243 Cal.App.4th at p. 1059, 197 Cal.Rptr.3d 44.) The plaintiffs also "emphasize[d] that [the student] was not engaged in a recreational activity when his accident occurred" on the path. (Ibid.) The

[43 Cal.App.5th 434]

Court of Appeal was "not persuaded that the use of a trail for both recreational and non-recreational purposes precludes trail immunity ...." (Id. at p. 1060, 197 Cal.Rptr.3d 44.)

To the contrary, the court noted the many cases holding that mixed use trails are entitled to immunity. (Burgueno, supra, 243 Cal.App.4th at p. 1061, 197 Cal.Rptr.3d 44, citing Montenegro, supra, 215 Cal.App.4th at p. 932, 155 Cal.Rptr.3d 732 ["The fact that a trail has a dual use—recreational and nonrecreational—does not undermine [trail] immunity."]; Hartt, supra, 197 Cal.App.4th 1391, 132 Cal.Rptr.3d 27.) For example, in Montenegro, the appellate court affirmed a summary judgment entered in favor of a city arising from a plaintiff's trip-and-fall while walking on a pathway "as an ordinary pedestrian," not for a recreational purpose. (Montenegro, at p. 932, 155 Cal.Rptr.3d 732.)4

Similarly, in Hartt, the appellate court affirmed a summary judgment based on trail immunity where a bicyclist died when he collided with a county-owned service vehicle on a park trail used for both recreation and service access. (Hartt, supra, 197 Cal.App.4th at pp. 1399-1400, 132 Cal.Rptr.3d 27.) Addressing dual use, the Hartt court observed there was "no such exception on the face of the statute," and the "Legislature knows how to create statutory exceptions but apparently chose not to do so in this instance." Id. at p. 1400, 132 Cal.Rptr.3d 27.)

[255 Cal.Rptr.3d 870]

Applying these principles, the Burgueno court concluded that "[s]ince the [bike path] has mixed uses that undisputedly include recreation, the [university] [has] trail immunity ... from claims ... that arise from the condition of the [path]." (Burgueno, supra, 243 Cal.App.4th at p. 1061, 197 Cal.Rptr.3d 44.)

The same holds true here. While Loeb asserts the pathway was designed for the sole purpose of providing bathroom access, she stipulated that it was also used for recreational purposes. Thus, under Burgueno (and the cases cited therein), the County is entitled to immunity.

The Court also noted that even if it had accepted the plaintiff's argument that the purpose for which a pathway is designed determines whether it is a trail, it would still have concluded that the defendant was entitled to immunity because using the bathroom is part of the recreational activity of camping (at 435):

Even were we to accept Loeb's position that the purpose for which a pathway is designed determines whether it is a trail to which immunity attaches, we would still conclude as a matter of law that the County is entitled to immunity. Section 831.4 provides immunity for trails that "provide[ ] access to" or are "used for" certain enumerated recreational activities, including "camping." ( § 831.4, subds. (a), (b).) Loeb's contention that the pathway "could not be used for the purpose[ ] of ... camping"—presumably because one cannot pitch a tent on a concrete pathway—is based on an unjustifiably narrow reading of the immunity statute. We agree with the County's observation that using a bathroom is "part of the recreational activity of camping." Indeed, Loeb admits in her briefing that "[t]he evidence here establishes ... the sidewalk leads to a restroom facility that exists for the use of people using the 33 campsites at the nearby campground area. " (Italics added.) Because, as Loeb acknowledges, the pathway was designed to provide campers access to bathrooms, which is an integral part of camping, the pathway was designed for use in the statutorily recognized recreational activity of camping.

The plaintiff also argued that the defendant county was not entitled to immunity because she paid a $3 fee to enter the park. She relied on Cal. Civ. Code § 846, which denies a property owner immunity from injuries sustained on its property where permission to enter was granted for consideration. However, the Court found that section 846 does not apply to public entities (at 436):

Loeb maintains the County is not entitled to immunity because she paid a $3 fee to enter the Park. She bases this argument, in part, on Civil Code section 846, which denies a property owner immunity from injuries sustained on its property "where permission to enter for [recreational purposes] was granted for a consideration ...." (Civ. Code, § 846, subd. (d)(2).) But the County did not seek recreational immunity under Civil Code section 846 ; it sought trail immunity under section 831.4. Indeed, Civil Code "[s]ection 846 does not apply to public entities. "(Pacific Gas & Electric Co. v. Superior Court (2017) 10 Cal.App.5th 563, 568, fn. 3, 216 Cal.Rptr.3d 426, italics added; see Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 704, 190 Cal.Rptr. 494, 660 P.2d 1168.)

No decisions were identified that set out or considered any exceptions to trail immunity where the injury was caused by a condition of the trail.

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