Thursday, October 13, 2016

Wang v. Nebbelink (Cal. Ct. App. - Oct. 13, 2016)


I understand that Section 846 of the Civil Code generally shields landowners who allow recreational activities on their land from liability to people who come on that land for such recreational conduct.  I understand the text of the statute.  I understand its purpose.  We're excited about landowners opening up their land to outsiders, and we don't want those outsiders who come on that land for recreation to be sued.  We strike a balance.  The people on the land get to have their fun on that land, but don't get to sue if they're injured.

But here, it's not the person on the land who sues (or is injured).  Rather, a landowner allowed some horses on his land (for a recreational purpose), the landowner (allegedly) negligently allowed a horse to escape, and that horse left the property and seriously injured someone.

The trial court granted summary judgment to the defendant on the ground that Section 846 absolved the landowner of any liability to the injured party.  The Court of Appeal affirms.  The fact that the injured party had nothing whatsoever to do with the recreational activity -- moreover, that he never even stepped a foot on (or even came near) the property -- is irrelevant, Justice Hull holds.  There's still immunity for the landowner's negligence.


I understand why the Court of Appeal reaches this holding.  I understand the textual analysis (the words of the statute).  I get the policy basis (to encourage landowners to open up their property).

But I still tend to think that the Court of Appeal gets it wrong.

It's one thing to say that someone who comes on your property for recreational purposes can't sue the landowner.  It's totally another to say that someone entirely separate from this conduct -- i.e., as here, a total bystander, potentially miles away -- can't sue either.  The former seems an appropriate (or at least plausible) balance, and I'm confident is what the Legislature intended when it passed Section 846.  By contrast, I don't believe that the Legislature intended to, or did, tell a stranger to any of the recreational activities that if he gets injured by someone else's negligence, tough, totally no lawsuit.

That just doesn't seem especially plausible to me.

The next of the statute seems instead to give some credence to the view that only those people who actually came on the property for the recreational purpose -- who got the benefit of that land -- are the ones who consequently can't sue.  Section 846 says:

"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."

Those underlined clauses expressly relate to the people who actually enter the land and who use it for a recreational purpose.  They don't mention liability to bystanders.  That's something different.

The last six words then go on to say that there are certain exceptions.  Situations in which the owner of the land may be liable.  Those obviously don't help the landowner.  I understand that at least one portion of that later language -- the exceptions -- may arguably try to cover bystanders.  (Though even then there's an express reference to the people actually on the land for the recreational purpose:  "[A landowner] 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 that 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 the person to whom permission has been granted except as provided in this section."  The fact that this clause is part of the "exception", and also merely states that the opening of the land does not itself create liability, tends to suggest to me that it both doesn't and is not intended to immunize negligence towards bystanders.)  In the end, I simply am not persuaded that the language compels -- or potentially even allows -- the result reached by the Court of Appeal here.

Moreover, one of the exceptions would seem downright silly were the statute read as the Court of Appeal reads it here.  Justice Hull's opinion doesn't discuss it, but the fourth paragraph of Section 846 provides that "[t]his section does not limit the liability which otherwise exists . . . (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner."  Now, I totally understand why this section distinguishes express versus implied invitees.  Section 846 wants to immunize landowners for injuries to patrons who are merely "permitted" to use the land for recreational purposes, while simultaneously allowing invitees who are expressly invited to that land to sue.  Again, the policy rationale is a balance.  We want landowners to open up their land, so if there's a person who (permissibly) happens on the land for recreation, and benefits therefrom, we don't allow those beneficiaries to sue.  But when someone's expressly invited, well, that's different; they can sue.

That makes sense.  Except as applied to bystanders.

Under the Court of Appeal's holding, if I open up my land to horses, and two horses escape due to my negligence and kill two bystanders ten miles away, I'm not liable for the horse that merely "came" on the property but I am liable for the horse that was "invited" to the property.  I could see why such a distinction would matter to the permissive/express invitee were s/he injured.  But it definitely doesn't matter to the bystander whether the horse that mauled him or her was invited or merely permitted on the land.  Why the Legislature would possibly want one bystander compensated but the other to suffer her injuries in silence is beyond me.  I just don't think that was the Legislature's intent, or even its statutory language.

As I was reading the opinion, I kept thinking to myself:  "Wait.  Is the Court of Appeal really saying that if I open up my land to target shooting, and I negligently set up targets next to an interstate, and people come on my land and start shooting, I'm not liable at all to all the motorists who get shot on the highway?!"  But, yeah, that's exactly what the Court of Appeal is saying.

And, as it turns out, this isn't even an absurd hypothetical!  Apparently there are several out-of-state cases that involve almost that identical fact pattern:  a landowner gets sued for allowing shooting on his land and a bystander totally outside the property and not involved in recreation gets shot. All of those other states say that, yep, the landowner can be liable in such a setting, even in states that have their own analogue to Section 846.

But not here in California.  Not after today.  If you get shot while minding your own business and not engaged in recreation -- indeed, even if you get shot while in your own home -- as long as the shooter is engaged in recreation on someone else's land, you can't sue the negligent landowner who opened up that land to shooting directed towards your home.

That just seems crazy to me.  And not what Section 846 intends.

Again, I understand the policy argument.  We want people to open up their land.

But not at the expense of injury to bystanders.  I don't read the statute to say otherwise.  And I very much don't think that's what the Legislature intended, either.

It's one thing to say that the person engaged in recreation -- the person that stepped on your land and got benefits from it -- can't sue.  (Unless you "actually" invited him there.)  It's very much another to say that even a bystander injured by the landowner's negligence can't sue.

I don't think that's either what Section 846 or justice requires.