California Civil Jury Instructions (CACI)
1010. Affirmative Defense—Recreation Immunity (Civ. Code, § 846)
[Name of defendant] is not responsible for [name of plaintiff]’s harm if [he/she] proves that [name of plaintiff]’s harm resulted from [his/her] entry on or use of [name of defendant]’s property for a recreational purpose,
[Choose one of the following three options:]
[unless [name of plaintiff] proves all of the following:
1. That [name of defendant] knew or should have known of the [condition/use/structure/activity on the property] that created an unreasonable risk of serious injury;
2. That [name of defendant] knew or should have known that someone would probably be seriously injured by the dangerous [condition/use/structure/activity]; and
3. That [name of defendant] knowingly failed to protect others from the dangerous [condition/use/structure/activity].]
[unless [name of plaintiff] proves that a charge or fee was paid to [name of defendant] to use the property.]
[unless [name of plaintiff] proves that [name of defendant] expressly invited [name of plaintiff] to use the property for the recreational purpose.]
New September 2003; Revised October 2008
Directions for Use
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.
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.
Sources and Authority
- Civil Code section 846 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 such premises to persons entering for such purpose, except as provided in this section.
A “recreational purpose,” as used in this section, includes such activities as fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.
An owner of any estate or any other interest in real property, whether possessory or nonpossessory, who gives permission to another for entry or use for the above purpose upon the premises does not thereby (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.
This section 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; or (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose; or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.
Nothing in this section creates a duty of care or ground of liability for injury to person or property.
- “[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].)
- “Three essential elements must be present to raise a negligent act to the level of wilful 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.” (New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 689–690 [217 Cal.Rptr. 522].)
- “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].)
- “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.)
- “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].)
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1103–1111
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.22 (Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property Owners, § 381.30 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.21 (Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.130 et seq. (Matthew Bender)
1 California Civil Practice: Torts (Thomson West) § 16:34