CACI No. 1010. Affirmative Defense - Recreation Immunity - Exceptions (Civ. Code, § 846)

Judicial Council of California Civil Jury Instructions (2023 edition)

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1010.Affirmative Defense - Recreation Immunity - Exceptions
(Civ. Code, § 846)
[Name of defendant] is not responsible for [name of plaintiff]’s harm if
[name of defendant] proves that [name of plaintiff]’s harm resulted from
[his/her/nonbinary pronoun/name of person causing injury’s] entry on or
use of [name of defendant]’s property for a recreational purpose.
However, [name of defendant] may be still responsible for [name of
plaintiff]’s harm if [name of plaintiff] proves that
[Choose one or more of the following three options:]
[[name of defendant] willfully or maliciously failed to protect others from
or warn others about a dangerous [condition/use/structure/activity] on
the property.]
[a charge or fee was paid to [name of defendant/the owner] for permission
to enter the property for a recreational purpose.]
[[name of defendant] expressly invited [name of plaintiff] to enter the
If you find that [name of plaintiff] has proven one or more of these three
exceptions to immunity, then you must still decide whether [name of
defendant] is liable in light of the other instructions that I will give you.
New September 2003; Revised October 2008, December 2014, May 2017, November
2017, May 2021
Directions for Use
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.
Sources and Authority
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 landowners 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].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1245-1253
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)
California Civil Practice: Torts § 16:34 (Thomson Reuters)

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