One of the things I try to do when I read cases is to make sense of them. By that, I mean I try to understand the internally consistent legal doctrine that underlies the problem and how that doctrine affects the outcome of the case.
You'll notice that I used the words "internally consistent" in that last sentence. That's important. To me, anyway. A big part of what makes "law" reasonable, predictable, and different from a mere expression of internal judicial preference is the ability of a legal principle to make sense: to be an internally consistent and hence rational explanation of how we elect to predictably order our world.
Which in part explains why law is worth following. As well as understanding. If cases were merely decided according to our (often internally inconsistent) instincts about what's right or wrong, we both wouldn't have an externally predictable rule of law -- because particular moral instincts and values are not universally shared -- and we also wouldn't have a need for legal "doctrine" other than "We'll know the right result when we see it." It's for these reasons that I spend a lot of time and intellectual energy trying to figure out the internally consistent principles that rationally explain how we order our legal world. Further, if a particular legal doctrine is not internally consistent, or is incompletely so, that's a huge flaw. It suggests that the way we're deciding cases needs to change.
All of these thoughts were highlighted when I read this opinion from earlier today.
The case does not reach a particularly surprising result. It's an opinion about what's called "trail immunity" in California, which (for policy reasons) makes the owners of recreational "trails" immune from liability even for their allegedly dangerous conditions, on the theory that to do otherwise would discourage people from making property available for recreation. The case holds that a particular (allegedly uneven) concrete pathway located in the GuajomeRegional Park is indeed a "trail" and hence the County of San Diego (which owns the Park) is immune from liability. Fair enough.
But underlying that opinion is the core legal question: What counts as a "trail" for purposes of the statute (and hence immunity)?
Again, we could say that we know it when we see it. But that's not good enough. Instead, we want to know what the characteristics are of a trail that create the resulting immunity. We know that trails under the statute are those that are typically used for recreational pursuits; hiking, riding bikes, etc. The concrete pathway at issue here connects a roadway and parking lot in the park (which includes handicapped parking spaces) to a restroom in the park. We know that pathway is used by some people going from the parking lot to the bathroom. We also know (from pictures) that the pathway is used by some people on bikes, some people on skateboards, some people walking dogs, etc. Indeed, the facts about how this pathway is used are largely undisputed.
So, under the law, is it a "trail" or not?
There's a substantial fight between the parties to the litigation about whether the trail needs to be "used" for recreational purposes or, instead, "designed" for such purposes. In the end, the Court of Appeal comes out extraordinarily heavily on the former of these principles. It holds that as long as a pathway is indeed used for recreational purposes, it doesn't matter at all whether (1) it was designed for such a purpose, or (2) it is even only secondarily used for such purposes. (See pages 16 and 17 of the opinion, including the conclusion: "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.") (emphases in original).
Okay. I get it. If a pathway is even secondarily used for recreational purposes, there's immunity. Even if the plaintiff wasn't using it for that purpose, and even if most people use the path for non-recreational purposes. That's a rule.
And that rule is also an internally consistent one. Indeed, it's one that's also consistent with the underlying purposes of the statute. If you really want people to make their property available for recreation, then go ahead and give them immunity whenever a nontrivial number of people use the thing for recreation. That'll advance your purposes. Even if it has the ancillary effect of precluding compensation for people injured on that property and also fails to discourage people from repairing dangerous conditions therein. Perhaps that's a policy choice that you want to make.
Mind you, that leaves open the question: How much recreational use is sufficient?
To take a concrete example close to home (literally): I've got a driveway on the front of my property. Most of the time, it's used by people (including me) to park their cars, or to access my front door, all of which are non-recreational endeavors. But on exceptionally rare occasions, I've seen people walk their dogs through my driveway and have seen a skateboarder or two ride through the thing (it's a semicircle that abuts the sidewalk and roadway). Does that mean that if I have a huge pothole in the thing, which I refuse to fix, and a person trips and injures themselves coming to my doorway, I'm entitled to "trail immunity" because it was used for recreation, albeit not here and not primarily? Under the Court of Appeal's categorical holding, I'd say the answer is "Yes." Yet I strongly doubt the Court of Appeal (or any other court) would actually come out that way.
Now, maybe you can say that, albeit unexpressed in today's opinion, there's an exception for trivial recreational uses. Okay. Seems to me you need to express that point, since it's unclear in the present case whether the recreational uses were indeed trivial or not, and the actual words in today's opinion repeatedly say that all you need to do is to show "use" rather than a particular quantity of use. So I would still find the holding of the opinion overbroad and potentially troubling.
But let's put that particular problem entirely aside. And give another concrete example that comes to mind from today's opinion; this time, right outside of (rather than in) my own home. When you leave my property, you hit (in order) (1) the sidewalk, (2) a two-lane roadway, (3) on the other side of the road, a dirt pathway, and then (4) the ocean. That's true, by the way, all along my street, which runs for about a mile. Every day, there are tons of people who use those locations for recreation. You've got bicyclists, joggers, dog walkers, sunset-viewers, photographers, surfers, etc. In short, you've got a ton of recreational use.
And that's true on both the sidewalk in front of my house (on my side of the roadway) as well as on the dirt path that's on the other side of the roadway and that parallels the ocean. Most people on the sidewalk are walking or jogging for recreation, and enjoying the natural beauty of the location. Ditto for the people on the parallel dirt trail. If it matters, both the dirt pathway and the concrete sidewalk are also about the same size; a couple of feet wide. And on both the dirt pathway and on the concrete sidewalk, people occasionally get hurt. Sometimes seriously. People have tripped on the sidewalk, have crashed into obstacles, and have fallen off the dirt pathway (which is on the top of a cliff) to the beach below, sometimes to their death. These injured people could definitely allege that there were purportedly dangerous conditions on the sidewalk and/or dirt pathway that resulted in their injuries.
Is there trail immunity for dangerous conditions located on either of these locations? Both? Neither?
If the only question is whether these properties are "used" for recreation, the answer is crystal clear: Both locations engender trail immunity. And the fact that one of these "trails" is paved (and the other is not) is definitely irrelevant; today's opinion expressly so holds, and also involved a concrete path to which trail immunity was applied.
Fine. So both locations are immune. Good to know that I don't have to worry about any dangerous conditions on the sidewalk subjecting me to liability (even though homeowners are, for good reasons or not, generally liable for defects on the sidewalks fronting their property). That's at least a doctrine that's consistent, even if potentially unwise.
But wait. The Court of Appeal also says (on page 18) that you're not entitled to trail immunity if it's a paved path that parallels a street, citing precedent that "paved
paths in public parks have . . . been distinguished from sidewalks if they were not located
on or adjacent to a street or highway." Which turns an otherwise internally consistent (if wise or unwise) approach into one that's both uncertain as well as seemingly unprincipled. That caveat suggests that the sidewalk in front of my house is not, in fact, subject to trail immunity, since it's a "paved path . . . adjacent to a street or highway." But why not?! I thought the critical issue was only, as the Court of Appeal expressly held, whether the path was in fact "used" for recreation, as it indisputably is?! Where does this new made-up exception for concrete sidewalks adjacent to streets come from? And why doesn't that same exception for concrete pathways adjacent to streets apply equally to (as here) concrete pathways leading to bathrooms? The Court of Appeal nowhere explains.
Nor does the Court of Appeal explain whether this exception applies only to "concrete" pathways adjacent to streets or, instead, to any pathway adjacent to a street. Which definitely matters to those people injured or killed on the dirt pathway across my street, as well as many other. That pathway is unpaved and in a park (Sunset Cliffs Natural Park). But it's directly adjacent and parallel to a street, just like the concrete sidewalk across the street. Trail immunity or no?
As I said when I started this post, the point of legal doctrine is to not only accurately reflect norms, but also to predictably advise people of their liability and to consistently (and for articulable reasons) treat similar situations identically. I can understand a holding that says, for example, that sidewalks that parallel streets aren't subject to trail immunity since they're not typically designed or used for recreation. But if that's the rule, then that same principle would suggest that the nonsuit in today's case was improperly granted, since the same might be true (under the facts) for the concrete path here, and the relevant inquiry thus not limited to solely whether the path is ever used for recreational purposes. I could also find a holding to be internally consistent (albeit likely unwise) were it to say that anything adjacent and parallel to a street was categorically unable to avail itself of trail immunity, yet I suspect that most people would think that the dirt trail across the street from my house should be entitled to trail immunity, lest it not be made available to the public for recreational purposes.
In short, I'm not persuaded that the Court of Appeal's focus in today's opinion purely on the "use" of a trail entails an internally consistent (or wise) interpretation. I'm not sure you can square that holding with precedent that says that sidewalks adjacent to streets aren't immune. Nor can it likely be squared with what I suspect would be otherwise easy holdings about why I'm not entitled to trail immunity for dangerous conditions in my concrete driveway, or similar "trails" that are only exceptionally rarely used for recreational purposes.
So, again, I get why the Court of Appeal comes out the way it does in this particular case. But I'm not sure that the doctrine it applies is a consistent or predictable one. And that matters. At least to people, like me, who care about such things.
