The opinion
Filed 4/5/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
PACIFIC GAS AND ELECTRIC
COMPANY,
Petitioner,
v. A146495
THE SUPERIOR COURT OF SAN
MATEO COUNTY, (San Mateo County
Super. Ct. No. CIV 515962)
Respondent;
ZACHARY ROWE, a Minor, etc., et al.,
Real Parties in Interest.
Civil Code section 846, California’s recreational use immunity statute, confers
property owners with immunity from liability arising from the recreational use of their
property.1 (See § 846.) At issue here is one of its enumerated exceptions, applicable
when permission to enter the premises for a recreational purpose “was granted for a
consideration.” (Id., 4th par., item (b).)
Twelve-year-old Zachary Rowe suffered catastrophic injuries during a camping
trip with his family to San Mateo County Memorial Park, when a 75-foot tree fell on his
tent at 5:00 a.m. as he lay sleeping. Petitioner Pacific Gas and Electric Company
(PG&E) owns and maintains an electricity distribution line in the park that serviced a
nearby restroom, and has a license conferred by its utility tariff permitting it to enter the
park to inspect and maintain its equipment and the vegetation in the vicinity of its power
1
Unless otherwise noted, all subsequent statutory references are to the Civil
Code.
1
lines, including near the campsite where Zachary was injured. Zachary’s family paid an
entrance fee to camp there only to the park’s owner, the County of San Mateo (County),
but paid nothing to PG&E. It also is undisputed the County paid PG&E for electricity
used at the park.
Here, we are asked to decide whether PG&E retains its immunity under
section 846, notwithstanding the payment of this camping fee to the County (there being
no dispute that the statute otherwise applies to PG&E as a licensee of the campground’s
owner). PG&E contends that it does retain immunity, asking us to construe the
consideration exception as applicable only when the defendant claiming immunity
receives all or some portion of the consideration paid.
We reject that interpretation of section 846. We conclude that the consideration
exception to recreational use immunity does apply to PG&E even though Zachary’s fee
for recreational access to the campground was not paid to it, and therefore affirm the trial
court’s denial of PG&E’s motion for summary judgment asserting section 846 immunity.
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 PG&E, 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.
2
BACKGROUND
In the summer of 2012, Zachary and his family went camping in San Mateo
County Memorial Park. Zachary’s mother paid a $50 fee to the County for their five-
night campsite rental.
An electrical line runs adjacent to the campsite they rented, which delivers
electricity to nearby restrooms. PG&E owns and maintains the electrical line, which
consists of nine poles, approximately 1,715 feet of electrical wire, transformers and other
equipment. Pursuant to its utility tariff, PG&E has the right to enter the park to inspect
and maintain the line and perform vegetation management, and it regularly does so.2
At approximately 5:00 in the morning on July 23, 2012, a 75-foot tall tree fell and
struck the tent at Campsite D-1 that Zachary occupied with his mother. The tree was
located approximately 30 to 40 feet from PG&E’s power line, within striking distance of
the line had it fallen in that direction. Zachary suffered catastrophic injuries.
Zachary, through his guardian ad litem, brought suit against PG&E, the County
and others. He asserted a single cause of action against PG&E for negligence, alleging
PG&E “was responsible for maintaining its electrical lines and adjacent areas in a safe
condition,” but “negligently inspected and maintained the trees in proximity to the
electrical lines adjacent to [the campsite] where [Zachary] was severely injured,” and
failed to warn him and his mother “of the dangerous conditions presented by the diseased
and rotten trees adjacent to the electrical lines and [his] campsite.”
PG&E moved for summary judgment on the ground that it owed Zachary no duty
of care as a matter of law pursuant to section 846. The trial court denied the motion,
certified the question as appropriate for our interlocutory review under Code of Civil
Procedure section 166.1, and this petition for writ of mandate followed.
2
Section 11 of PG&E’s Electric Tariff Rule 16 states in pertinent part: “PG&E
shall at all times have the right to enter and leave Applicant’s Premises for any purpose
connected with the furnishing of electric service (meter reading, inspection, testing,
routine repairs, replacement, maintenance, vegetation management, emergency work,
etc.) and the exercise of any and all rights secured to it by law, or under PG&E’s tariff
schedules.”
3
DISCUSSION
I.
Overview
“Section 846 was enacted to encourage property owners to allow the general
public to engage in recreational activities free of charge on privately owned property.”
(Hubbard v. Brown (1990) 50 Cal.3d 189, 193 (Hubbard); accord, Delta Farms
Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707 (Delta Farms).) “The
statutory goal was to constrain the growing tendency of private landowners to bar public
access to their land for recreational uses out of fear of incurring tort liability.” (Hubbard,
at p. 193.) It expresses “a strong policy that land should be open to recreational use.”
(Id. at p. 192.) The statute accomplishes this goal “by immunizing persons with interests
in property from tort liability to recreational users, thus making recreational users
responsible for their own safety and eliminating the financial risk that had kept land
closed.” (Ibid.) Yet the Legislature didn’t intend to protect landowners at all cost. “[I]n
crafting legislation that would prevent the closure of private lands to recreational users
because of landowners’ liability concerns, the California Legislature sought to strike a
fair balance between the interests of private landowners and those of recreational users.”3
(Klein v. United States (2010) 50 Cal.4th 68, 82 (Klein).)
Section 846’s first paragraph “defines the scope of immunity.”4 (Klein, supra, 50
Cal.4th at p. 77.) That paragraph states: “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
3
Section 846 does not apply to public entities. (Delta Farms, supra, 33 Cal.3d at
pp. 704–709.) Accordingly, the County did not invoke section 846 and only PG&E’s
immunity is at issue here. The County has filed a separate writ petition that raises other
issues.
4
Strictly speaking, section 846 does not confer immunity but, rather, it “negates
the tort” altogether by eliminating any duty of care under specified conditions. (See
Klein, supra, 50 Cal.4th at p. 78.) Like other courts before us, we refer here to its
protections as immunity for convenience.
4
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.” (§ 846,
1st par., italics added.) There is no dispute that PG&E’s license under its utility tariff
constitutes an “interest” in San Mateo County Memorial Park that qualifies for protection
under this paragraph. The statute “clearly” applies to “private owners of easements and
of revocable licenses.” (Hubbard, supra, 50 Cal.3d at p. 197.) It “immunize[s] owners
of any interest in real property, regardless of whether the interest includes the right of
exclusive possession.”5 (Ibid.; see also Manuel v. Pacific Gas & Electric Co. (2009)
173 Cal.App.4th 927, 938, fn. 3 [utility easement holder]; Colvin v. Southern Cal. Edison
Co. (1987) 194 Cal.App.3d 1306, 1312 [same], abrogated on other grounds in Ornelas v.
Randolph (1993) 4 Cal.4th 1095, 1103–1109 (Ornelas).)
Section 846’s second paragraph defines the phrase “recreational purpose,” by
means of a non-exhaustive list of activities that “range from risky activities enjoyed by
the hardy few. . . to more sedentary pursuits amenable to almost anyone . . . .” (Ornelas,
supra, 4 Cal.4th at p. 1101.) It includes “camping.” (§ 846, 2d par.)
The third paragraph of section 846 “adds an additional immunity.” (Klein, supra,
50 Cal.4th at p. 78.) It states: “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 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.” (§ 846, 3d par.)
5
We do not address whether the access rights conferred on PG&E under its tariff
constitute an easement or a license, because the distinction is immaterial. Both parties
characterize PG&E’s interest as a “license,” as they did in the trial court, and so we use
that nomenclature here.
5
The consideration exception appears in the statute’s fourth paragraph, which sets
forth three “limitations on, or exceptions to, the landowner immunity it has granted.”
(Klein, supra, 50 Cal.4th at p. 78.) It states: “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.” (§ 846, 4th par., italics added). Its application here, where PG&E received
no portion of the consideration paid, presents an issue of first impression under California
law.6
The principles governing our interpretation of this provision are set forth in Klein,
supra, 50 Cal.4th 68, the Supreme Court’s most recent decision to construe section 846.
As was said in Klein, “In construing statutes, we aim ‘to ascertain the intent of the
enacting legislative body so that we may adopt the construction that best effectuates the
purpose of the law.’ ” (Id. at p. 77.) This requires us to look first to the statute’s words,
“ ‘because the statutory language is generally the most reliable indicator of legislative
intent.’ ” (Ibid.) “When the statutory text is ambiguous, or it otherwise fails to resolve
the question of its intended meaning, courts look to the statute’s legislative history and
6
We express no opinion concerning the legal significance, if any, of the revenues
PG&E earned from the electricity the County paid it to supply at the campground,
because that issue is not before us. In the trial court, Zachary contended that electricity
revenues constituted an “indirect” financial benefit to PG&E from the camping fee,
because “[t]he logical inference to be drawn . . . is that a portion of camping fees was
diverted to PG&E.” But he also argued the payments for electricity “are not a
consideration for permission to enter under section 846,” maintaining only that they
“provide a further rationale” for concluding that application of section 846 here would be
“inequitable.” (Italics added.) And in this court, Zachary frames the issue solely as
whether the consideration exception “applies not only to an owner of an interest in real
property who receives the consideration, but also to one who does not.”
6
the historical circumstances behind its enactment.” (Ibid.) Finally, where there is
uncertainty, a court also should consider the consequences that are likely to result from a
particular interpretation. (Ibid.; see also Ornelas, supra, 4 Cal.4th at p. 1105 [“Courts
may, of course, disregard even plain language which leads to absurd results or
contravenes clear evidence of a contrary legislative intent”].) Moreover, in construing
this provision, we review the trial court’s ruling de novo, because “[t]he meaning and
construction of a statute is a question of law, which we decide independently.” (B.H. v.
County of San Bernardino (2015) 62 Cal.4th 168, 189.)
II.
The Statute by Its Terms Does Not Grant Any Immunity Where Consideration Is
Paid for Recreational Use of Property.
At issue here, as noted, is the meaning of the phrase, “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.” (§ 846, 4th par.,
item (b).)
Turning first to the statutory text, section 846 preserves tort duties “in any case
where permission to enter . . . was granted for a consideration” without specifying who
must receive the consideration. (See Graves v. U.S. Coast Guard (9th Cir. 1982)
692 F.2d 71, 73 [“The statute does not specify to whom the consideration is to be paid”].)
It contains no language suggesting that the retention of potential tort liability extends
only to the person or entity who receives the consideration. On the contrary, it specifies
that tort duties are preserved “in any case where permission to enter for the above
purpose was granted for a consideration,” unless the consideration, “if any,” was “paid to
said landowner by the state.” (Italics added.) The language “in any case” is all-
encompassing (cf. Ornelas, supra, 4 Cal.4th at p. 1105; id. at pp. 1109–1110 [conc. opn.
of George, J.]). And it is followed by language that exempts some situations based on
who pays the consideration (i.e., consideration paid by the state) but does not similarly
exempt situations based on who receives it. To put it simply, the Legislature knew how
7
to limit the consideration exception but chose not to limit the exception in the manner
PG&E suggests.7 In short, the statutory language does not support the interpretation
urged by PG&E.
Nor are we at liberty to add terms to the statute, which in effect PG&E asks us to
do. PG&E urges us to construe the statutory text as if it read: “for injury suffered in any
case where permission to enter for the above purpose was granted for a consideration
paid to the property owner invoking this section 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.” In interpreting section 846, our job is “simply to ascertain and
declare what is in terms or in substance contained therein, not to insert what has been
omitted, or to omit what has been inserted . . . .” (Code Civ. Proc., § 1858.) We cannot
add limiting language to section 846 when the Legislature did not. (See Wang v.
Nibbelink (2016) 4 Cal.App.5th 1, 18 (Wang) [rejecting construction of section 846 “that
would have us add language not placed there by the Legislature”]; cf. Ornelas, supra,
4 Cal.4th at p. 1105 [rejecting construction of section 846 that entailed a “a purely
judicial construct, without any basis or support in the statutory language”]; Wang, at p. 18
[“Ornelas declined to add language to the statute”].)
In arguing for a construction that would narrow the operation of paragraph 4,
PG&E contends the key statutory language is the phrase, “said landowner.” PG&E
asserts, “the consideration exception first discusses the circumstance in which permission
to enter is granted for a consideration and then refers immediately to ‘said landowner.’ ”
According to PG&E, the term “landowner” “refers to a property owner claiming
immunity,” and “[b]ecause the term ‘said’ relates back to what is previously
mentioned . . . it follows that a landowner not receiving consideration for permission to
7
Nor does the exceptions’ prefatory language aid PG&E. The fourth paragraph
begins, “This section does not limit the liability which otherwise exists” and goes on to
list the three exceptions from the immunity the statute creates. (§ 846, 4th par.) This
language too is unqualified. It is not limited, but rather it encompasses all owners of
interests in property, not only those who charge or receive the consideration.
8
enter the property will be afforded immunity under the statute.” The parties debate the
rules of grammar on this point at some length, but we need not travel that ground. The
flaw in PG&E’s argument is its assertion that the term “landowner” refers to a property
owner claiming immunity. There is no textual basis for that position. PG&E’s argument
might make sense if there was an earlier reference in the paragraph (or, for that matter, in
the statute) to a property owner claiming immunity. But there is none—neither in
paragraph 4 nor anywhere else in the statute.
PG&E’s sole support for its position rests on a misreading of the Supreme Court’s
decision in Klein, which PG&E asserts “construed” the term “landowner” “as shorthand
for the owner of a possessory or nonpossessory interest in property claiming immunity
under the statute.” PG&E overreads Klein. At issue in Klein was the kind of tort claims
displaced by the statute, not which property owners may claim the statute’s protection.
Specifically, Klein held section 846 doesn’t apply to acts of vehicular negligence by a
landowner or its employee. (Klein, supra, 50 Cal.4th at p. 72.) In two portions of the
opinion PG&E cites, the court used the term “landowner”: in one instance, describing the
legal effect of the statute’s first paragraph (see id. at p. 77, quoted ante) and in the other,
analyzing the statute’s breadth (see id. at p. 85 [earlier case law’s characterization of the
statute as “extremely broad” refers to, inter alia, “the type of interest held by the
landowner (possessory or nonpossessory)”]). Contrary to PG&E’s characterization,
Klein did not “construe” the term “landowner” as used in the statute’s fourth paragraph.
The court did not address that statutory language.
PG&E similarly misplaces reliance on Johnson v. Unocal Corp. (1993)
21 Cal.App.4th 310, 316 (Johnson) for the proposition that there must be an “ ‘actual
payment of an entrance fee to the defendant.’ ” (Italics added by PG&E.) Johnson did
not address whether the consideration exception applies only to a party who receives
payment of consideration; rather, it addressed what constitutes consideration for purposes
of the exception. There the plaintiff, injured during a game of horseshoes at a company
picnic on the defendant’s land, argued his employer’s execution of a hold harmless
agreement in favor of the defendant constituted consideration within the meaning of the
9
consideration exception to statutory immunity. (Id. at p. 312.) The court disagreed,
holding “such a remote, potential ‘benefit’ ” to the owner did not constitute
consideration. (Id. at p. 315.) “The mere potential for reimbursement [by the employer]
for defense costs incurred if a suit were filed is neither current payment for entry nor a
benefit currently received for entry.” (Id. at p. 316.) Nothing in Johnson aids PG&E’s
argument.8
There are two possible meanings of the term “landowner” as used in the
consideration exception in paragraph 4, but we need not decide between them. Our
colleagues in Division Three have construed that term, as used in the invitation
exception, to refer only to the owner of the fee and not to a utility easement holder. (See
Jackson v. Pacific Gas & Electric Co. (2001) 94 Cal.App.4th 1110, 1118 (Jackson).)
The other possible meaning, which Jackson rejected, is that “said landowner” refers back
to the owner referenced in paragraphs 1 and 3, i.e., to an “owner of any estate or any
other interest in real property, whether possessory or nonpossessory. . . .” (See § 846, 1st
and 3d paragraphs; see also Hubbard, supra, 50 Cal.3d at p. 197 [section 846
“immunize[s] owners of any interest in real property, regardless of whether the interest
includes the right of exclusive possession”], italics added; Ornelas, supra, 4 Cal.4th at
p. 1102 [section 846 reflects an “ ‘ownership requirement [that is] both exceptionally
broad and singularly ambiguous’ ”].) In the end, the interpretation of the consideration
exception does not turn on the meaning of “said landowner” because whether or not that
phrase includes nonpossessory interests, it simply is not limited to an owner who claims
8
At oral argument, PG&E asserted that in Johnson the plaintiff’s purchase of a
ticket from his employer to attend the picnic was held not to trigger the consideration
exception either, because even though (PG&E contended) the ticket payment constituted
consideration for permission to use the property, the payment was not made to the
defendant landowner. This is completely inaccurate. The sole question relating to the
consideration exception was whether the hold harmless agreement constituted
consideration. (See Johnson, supra, 21 Cal.App.4th at pp. 312, 314–316.) Johnson
contains no legal analysis—none—of the picnic ticket.
10
immunity under the statute. Nothing about the phrase “said landowner” or any other
language of the statute suggests that meaning.
III.
Statutory Purpose
Our interpretation is consistent with the statutory purpose underlying the
recreational immunity statute. In Delta Farms, supra, 33 Cal.3d at pp. 707–708, which
held section 846 inapplicable to public entity property owners, our Supreme Court stated
that the purpose of the statute was “to encourage property owners ‘to allow the general
public to recreate free of charge on privately owned property,’ ” observing that “[t]his
purpose is achieved by a basic declaration that owners owe ‘no duty of care to keep the
premises safe’ for . . . recreational purposes.” (Ibid.; see also Ornelas, supra, 4 Cal.4th at
p. 1107 [referring to Legislature’s “laudable goal of inducing owners to make their
properties available for recreation”].)9 “Broadly speaking,” the court observed, “the only
exceptions relate to (a) victims of wilful or malicious conduct by the owner, (b) persons
who have paid consideration for permission to enter, and (c) express invitees.” (Delta
Farms, at p. 708.)
As Delta Farms indicates, the immunity conferred by section 846 is a means to an
end. The Legislature didn’t grant immunity for its own sake, as a beneficence to private
landowners at the expense of injured parties. Rather, it provided immunity to encourage
landowners to allow free use of their property by removing a disincentive to their doing
so. As academic commentators have described it, recreational use immunity reflects a
bargain: a “quid pro quo” of sorts. (See Comment, Wisconsin’s Recreational Use
Statute: A Critical Analysis (1983) 66 Marq. L.Rev. 312, 320–321 (Wisconsin’s
Recreational Use Statute).) That is, “legislatures created a ‘quid pro quo’ whereby the
landowner received immunity from lawsuits due to his negligence in return for opening
9
Our Supreme Court has also stated the purpose in the converse: “to constrain
the growing tendency of private landowners to bar public access to their land for
recreational uses out of fear of incurring tort liability.” (Hubbard, supra, 50 Cal.3d at
p. 193.)
11
his land to the public.” (Id. at p. 321, fn. omitted; see also Note, The Minnesota
Recreational Use Statute: A Preliminary Analysis (1977) 3 Wm. Mitchell L.Rev. 117,
119 [recreational use immunity statutes “offer a pragmatic ‘trade-off’ whereby the
landowner is relieved of certain tort duties when he gratuitously allows access to his land
by members of the public for recreation”]; Wisconsin’s Recreational Use Statute, supra,
66 Marq. L.Rev. at p. 316 [“These statutes can best be described as a ‘tradeoff,’ whereby
the landowner is relieved of certain tort liabilities when he gratuitously allows members
of the public recreational access to his land”].)
The statutory exceptions to the immunity must be understood in this context. The
immunity was provided for a purpose, and the exceptions reflect situations in which the
Legislature did not think “governmental encouragement” in the form of immunity was
necessary to achieve that purpose. (See Calhoon v. Lewis (2000) 81 Cal.App.4th 108,
114 [exception for those who are personally invited reflects Legislature’s understanding
that “[p]roperty owners do not need governmental encouragement to permit personal
guests to come onto their land”].)
Regarding the consideration exception in particular, as Zachary states in his brief,
“[o]nce permission to enter for a recreational purpose is conditioned upon the payment of
a consideration, the property is no longer open to the public to recreate ‘free of charge’ ”
and so “[t]he reason for the immunity evaporates.” And, like the other exceptions, the
consideration exception may reflect a legislative determination that “[p]roperty owners
do not need governmental encouragement to permit [paying] guests to come onto their
land” (cf. Calhoon v. Lewis, supra, 81 Cal.App.4th at p. 114), and that charging for entry
means excluding those who do not pay, contrary to the legislative goal of broad public
access. In any event, we agree with Zachary that in this situation, it would be illogical to
retain immunity for some holders of property interests (i.e., nonpossessory interest
holders who did not receive the consideration) when no purpose with which the
Legislature was concerned would be served.
PG&E responds that allowing “one property owner’s unilateral action [to] waive
the immunity of all owners of the same property, private landowners would once again be
12
compelled to bar their land to the public to avoid the threat of tort liability for all property
owners.” That would happen, it argues, because the “uncertainty” and potential liability
that would result “would create conflict among private landowners and increase the
pressure on all landowners to bar their land to the public for recreational uses to avoid the
threat of tort liability to any landowner.” But PG&E posits not a single, real-world
example of how that might come to pass, and we are hard-pressed to think of any.10
There is no reason to think a private landowner standing in San Mateo County’s shoes
would close its campground in response to a ruling that Zachary could pursue PG&E in
tort. On the contrary, a private property owner who charges consideration in exchange
for permitting the public to recreate on their land and thereby relinquishes its own
immunity from suit, would most likely prefer the liability risk to be spread among all
holders of interests in his or her land, especially those who, like PG&E, might potentially
be responsible for creating a hazardous condition.11
For this reason, a construction of section 846 that leaves the immunity of licensees
and other nonpossessory interest holders fully intact when a private landowner charges a
fee for people to recreate thereby relinquishing its own immunity, would not serve the
legislative purpose but potentially thwart it. (Cf. Klein, supra, 50 Cal.4th at p. 82.)
When a defendant enjoys immunity under section 846, the statute’s protection extends to
claims for implied indemnity as well. (Prince v. Pacific Gas & Electric Co. (2009)
45 Cal.4th 1151.) If only the owner who grants access in return for a fee faces potential
tort liability to the people it allows to camp, swim, spelunk or sky dive on its property,
that property owner alone would shoulder the risk of litigation by injured recreational
users even where the injury was caused partially, or entirely, by the actions of those to
whom it granted a license or easement. The prospect of assuming the entire risk of
liability not only for its own negligence, but for the negligence of those holding
10
We express no opinion concerning application of the consideration exception to
multiple holders of possessory interests, such as joint tenants.
11
We express no view on the merits of Zachary’s claim that PG&E negligently
maintained the tree that fell on him and is responsible for his injuries.
13
nonpossessory interests could deter the landowner from opening the property to the
public even for a fee.
PG&E also argues this construction would give the County “the unilateral power
to abrogate PG&E’s immunity” under section 846. Maybe so, but that is a byproduct of
the fact that landowners with fee simple title have greater rights than those with
nonpossessory interests and may choose to generate revenue from their property in
exchange for forgoing immunity. Further, it reflects a legislative determination that
extending immunity to nonpossessory interest holders like PG&E serves the goal of free
public recreation when access is free but contributes nothing toward that goal when the
landowner is providing access for a fee. At bottom, PG&E’s fairness arguments lose
sight of the purpose served by recreational immunity. Again, the Legislature did not
create immunity under section 846 for its own sake (i.e., to confer a benefit on private
property owners by protecting them from tort liability generally). That PG&E’s
enjoyment of immunity, as the holder of a nonpossessory interest, will depend on the
actions of others is not a reason to favor one interpretation of the statute over another. It
is simply a function of the statute’s purpose.
Furthermore, PG&E views this issue solely from the perspective of a property
owner but that is too solipsistic a lens. The Legislature was concerned with recreational
users too, and sought to strike “a fair balance” between the interests of parties on both
sides of the equation. (Klein, supra, 50 Cal.4th at p. 82.) The means by which
section 846 sought to achieve its goal of opening land to public recreational use was by
“making recreational users responsible for their own safety” when land is opened for free.
(Hubbard, supra, 50 Cal.3d at p. 192.) But under PG&E’s construction, a paying
recreational user would be “responsible for their own safety” too, insofar as dangers
created by nonpossessory interest holders. That does nothing to further the Legislature’s
goal.
We are not unmindful, as PG&E urges, that section 846 broadly applies to the
holders of nonpossessory interests who themselves have no power to control third-party
access to recreational land. (See Hubbard, supra, 50 Cal.3d at p. 197.) But it is one
14
thing to grant immunity to those with no power to exclude recreational users from
property (under circumstances in which the landowner enjoys immunity too), for one can
envision the pressures a licensee or easement holder might exert on a landowner to deny
free public access if immunity from tort liability did not apply to all, across the board. It
is quite another thing, however, to retain their immunity when the landowner with power
to control access relinquishes its own immunity by charging the public a fee (or other
consideration) as the price of admission.12 That is a quo with no quid, furthering no
purpose at all. For, as we have said, the Legislature sought to encourage the free use of
private property (the “quid”), and when a fee owner refrains from charging a fee for
access to that property, all holders of interests in the property benefit by the assurance of
immunity under section 846 (the “quo”). But if the fee owner does charge consideration
for permission to enter, there is no longer any “quid” to achieve; in that circumstance, the
purpose for the benefit of immunity disappears. Retaining anyone’s immunity in that
circumstance (the “quo”) is pointless. PG&E’s contrary interpretation would allow some
property interest holders to retain their immunity under circumstances in which the public
gets nothing in return.
IV.
Legislative History
There is nothing in the statute’s legislative history suggesting the Legislature
intended that anomalous result. On the contrary, what little history there is confirms the
Legislature remained focused solely on ensuring public recreational access to property.
The statute’s legislative history is sparse. (Klein, supra, 50 Cal.4th at p. 82.)
Enacted in 1963, section 846 originally specified that it applied to “an owner of any
estate in real property” and only a limited list of recreational activities (“taking of fish
and game, camping, water sports, hiking or sightseeing”). (Stats. 1963, ch. 1759, § 1,
12
We recognize that is not precisely the case here because the County, as a public
entity, is not protected by section 846 and so the campground fee does not impact its
immunity. (See footnote 3, ante.) But our construction of section 846 cannot ignore the
implications of PG&E’s position as a general matter.
15
pp. 3511–3522.) The Legislature amended the statute several times to expand the list of
covered recreational activities, and broadened the statute to embrace “any recreational
purpose.” (See Ornelas, supra, 4 Cal.4th at p. 1100, fn. 5.) In 1980, it also added the
phrases “or any other interest” and “whether possessory or nonpossessory” to the
statute’s description of protected property interests (Stats. 1980, ch. 408, § 1, p. 797),
which we discuss post.
As originally enacted, the consideration exception itself was structurally identical
to its present form but more narrow in scope. It specified that, “This section does not
limit the liability which otherwise exists . . . (b) for injury suffered in any case where
permission to take fish and game, camp, hike or sightsee was granted for a consideration
other than the consideration, if any, paid to said landowner by the State . . . .”
(Stats. 1963, ch. 1759, § 1, p. 3512.) The Legislative Counsel’s digest described the
exception as applying “where compensation is paid for the use of land.” (See Legis.
Counsel’s Dig., Sen. Bill. No. 639 (1963 Reg. Sess.) Stats. 1963, ch. 1759, Summary
Dig., p. 63.) In 1978, the consideration exception was expanded to its present form,
through an amendment adding the phrase, “or where consideration has been received
from others for the same purpose.” (Stats. 1978, ch. 86, § 1, p. 221 (1977–1978 Reg.
Sess.).) The Legislature did this at the same time it broadened the statute to extend to
“any recreational purpose” and added a number of specified activities. (Stats. 1978,
ch. 86, § 1, p. 221 (1977–1978 Reg. Sess.).)
As we see it, the critical juncture for purposes here came after that, in 1980 when
the Legislature amended section 846 to specify that it applied to the owner of “any”
interest in real property, “whether possessory or nonpossessory.” (Stats. 1980, ch. 408,
§ 1, p. 797.) The Legislature did so in response to two appellate decisions limiting the
statute to holders of possessory interests: Darr v. Lone Star Industries, Inc. (1979)
94 Cal.App.3d 895 (Darr), which held section 846 inapplicable to an easement owner
who had constructed a bridge from which a trespasser dove and sustained personal
injuries, and O’Shea v. Claude C. Wood Co. (1979) 97 Cal.App.3d 903 (O’Shea), which
held the statute inapplicable to claims brought by an injured motorcyclist against a
16
contractor with a license to excavate and temporarily stockpile dirt on the landowner’s
property. (See Ornelas, supra, 4 Cal.4th at pp. 1102–1103; Hubbard, supra, 50 Cal.3d at
pp. 194–195.) “[T]he legislative intent in amending section 846 was to immunize owners
of any interest in real property, regardless of whether the interest includes the right of
exclusive possession.” (See Hubbard, supra, 50 Cal.3d at p. 197.) The Legislature
intended to “broaden the scope of the statute so that it would apply to the Darr and
O’Shea contexts in future cases.” (Id. at pp. 194–195.)
It is clear that in doing so, the Legislature sought only to achieve parity for the
holders of licenses, easements and other nonpossessory interests, to make their immunity
commensurate with that of other landowners. For example, a report by the Assembly
Judiciary Committee states: “Proponents argue that the distinction made between owners
of possessory interests and owners of nonpossessory interests leads to anomalous results.
They cite the situation in which the landowner avoids liability to a recreational user
whereas the owner of an easement over the land cannot do so. Moreover, according to
proponents, some easement or license owners would be liable to recreational users on
land actually owned by another party even though such easement or license owners
would not be liable in similar circumstances on their own land.” (Assem. Com. on
Judiciary, Bill Digest of Assem. Bill No. 1966 (1979–1980 Reg. Sess.) as amended
Feb. 11, 1980, p. 3.) Similarly, a Senate Judiciary Committee report pointed out
“anomalous distinctions” the bill was intended to rectify.13 (Sen. Com. on Judiciary, Rep.
on Assem. Bill No. 1966 (1979–1980 Reg. Sess.) as amended Feb. 11, p. 3.) According
to that Senate report, “Proponents of this bill feel that it is anomalous to allow only
owners of possessory interests in land to have the immunity of Sec. 846. Thus, the owner
who grants an easement to another is protected, but the easement grantee is not.
[¶] . . . [¶] Proponents argue that those who come onto a landowner’s property for
construction, logging or other operations have no control over recreational users who
13
The trial court judicially noticed both reports, and so do we. (See Evid. Code,
§ 459, subd. (a).)
17
may enter the property, yet will be liable for injuries. If those with nonpossessory
interests are not afforded immunity, they say, numerous private landholdings in
California will be closed to recreational users and the public policy behind Sec. 846 will
be thwarted.” (Id. at pp. 3–4.) Other legislative history material reflects similar
comments. (See Resources Agency, Cal. Dept. of Fish and Game, Enrolled Bill Rep. on
Assem. Bill. No. 1966 (1979–1980 Reg. Sess.) July 198014 [“The effect of this bill would
be to provide the same protection now provided to the owner of an estate in real property
to owners of interests in real property”], italics added.)
There appears to have been no discussion of the consideration exception when the
Legislature enacted this crucial amendment, which left the exception itself unchanged.
Yet there is no indication in the legislative history the 1980 amendment was intended to
grant license or easement holders greater immunity than that of a landowner, as would be
true if the payment of an entrance fee abrogated only a landowner’s immunity from suit
but not that of anyone with lesser, non-exclusive rights in the land. For example, nothing
in the legislative history evinces any intention by the Legislature to protect the easement
holder who built the bridge in Darr from liability had the property owner relinquished its
own immunity from suit by charging the plaintiff a fee to swim in the river.15 And
nothing evinces any intention to immunize the excavation contractor in O’Shea had the
landowner in that case lost its immunity by charging the motorcyclist a fee to ride there.
Yet in many cases someone with a nonpossessory right to access and use property might
bear greater responsibility for creating a dangerous condition than the actual owner, as
14
See Elsner v. Uveges (2004) 34 Cal.4th 915, 934, fn. 19 (“we have routinely
found enrolled bill reports, prepared by a responsible agency contemporaneous with
passage and before signing, instructive on matters of legislative intent”); accord,
Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1218, fn. 3; see also Lee v. Hanley
(2015) 61 Cal.4th 1225, 1235 (considering same).
15
The landowner in Darr was the State of California, which has no immunity
under section 846. (See Delta Farms, supra, 33 Cal.3d at pp. 704–709.) However, both
Darr and the Legislature’s responsive amendment in 1980 predated the Supreme Court’s
ruling in Delta Farms that public entities are not covered by section 846.
18
appears to be true, for example, of the excavation contractor in O’Shea who built up a
dangerous dirt pile. (See O’Shea, supra, 97 Cal.App.3d at pp. 907–908.)
In short, what little legislative history there is indicates the Legislature intended to
put the holders of nonpossessory property interests merely on an equal footing with
property owners, not confer on them immunity for its own sake divorced from the
statute’s underlying purpose. Every indication is the Legislature sought only to correct
an anomalous result, not to create one.
V.
Public Policy Considerations
While not dispositive, we also consider the public policy implications of a
particular interpretation, “to ensure that the construction we adopt will not produce
manifestly adverse effects that the Legislature could not have intended when it enacted
that law.” (Klein, supra, 50 Cal.4th at p. 83.)
As explained, construing the consideration exception to apply whenever
consideration is paid for permission to enter land for a recreational purpose, regardless of
whether the payment inures to the benefit of the defendant claiming immunity, is
consistent with Legislature’s goal of encouraging private landowners to open their land to
public use. Landowners could safely be assured that charging a fee for access, even a
minimal one simply to help defray any increased costs occasioned by public use, would
not put them at potential risk of liability out of all proportion to their own responsibility
for dangerous conditions on their property, because the risk of tort liability would be
spread fairly among all potentially culpable joint tortfeasors, including those with a non-
exclusive, nonpossessory right to use that land too.
The contrary interpretation urged by PG&E, even were it supported by the
statute’s literal language, leads to problematic results we do not think the Legislature
intended. (See People v. Vidana (2016) 1 Cal.5th 632, 638 [“ ‘a statute’s literal terms
will not be given effect if to do so would yield an unreasonable or mischievous
result’ ”].) Under PG&E’s construction, every stripe of easement holder and licensee
would have nearly absolute immunity from premises liability torts to paying recreational
19
users of land, and to the landowners who permit them access there (see Prince v. Pacific
Gas & Electric Co., supra, 45 Cal.4th 1151). Not only would this create a windfall
untethered to the statute’s purpose and potentially deter property owners from opening
their land to public use, it also would be dangerous.
To start with, PG&E itself would owe a dangerously diminished duty of care to
anyone paying to camp, hike or even picnic at a park served by its power. The accident
here befell a child sleeping in a tent beneath an allegedly negligently maintained tree.
But on PG&E’s theory, the immunity it invokes under section 846 would seemingly
extend to the actual operation and physical maintenance of its entire electrical distribution
infrastructure at San Mateo County Memorial Park too. Fires; explosions; downed power
lines; any manner of physical hazard that could cause injury to paid visitors in the
vicinity of an electrical distribution system would potentially be immune from tort
liability, absent willful or malicious misconduct on PG&E’s part (§ 846, 4th par.,
item (a)). It’s hard to imagine a policy rationale the Legislature could have had in mind
for that result.
PG&E argues hypotheticals such as these (for example, involving a paid park
visitor getting electrocuted by a negligently maintained electrical wire), “test[] the
boundaries of recreational immunity” under section 846 which is concerned with
“property-based duties underlying premises liability’ (Klein, supra, 50 Cal.4th at p. 72)
and “raise[] other issues” regarding the scope of section 846 immunity “that have nothing
to do with the issues raised here.” But it doesn’t seem far-fetched that a utility would
invoke section 846 in defense of personal injury actions of this sort which appear to fall
comfortably within the statute’s scope.16 Indeed, we do not understand PG&E to concede
here that section 846 would not apply in these scenarios.
16
PG&E cites no law to support its contrary contention, and the language of
section 846 negates any duty to, inter alia, “keep the premises safe . . . or to give any
warning of hazardous conditions, . . . [or] structures . . . on those premises.” (§ 846,
1st par.) Indeed, premises liability claims arise from “ownership or possession of land,”
and include the theory that a defendant “ ‘allowed a dangerous condition on its
20
More broadly, on PG&E’s theory, all utilities and other easement or license
holders would enjoy practically absolute immunity to paying patrons on other people’s
land, save for willful or malicious misconduct (§ 846, 4th par., item (a)). That standard is
exacting, consisting either of intentional harm or acting in reckless disregard of a known
risk of serious injury; mere negligence, or even gross negligence, is not enough. (See
Manuel v. Pacific Gas & Electric Co., supra, 173 Cal.App.4th at pp. 947–949.) The
Legislature intended this result so far as the uninvited, nonpaying child who happens
upon a transmission tower in a remote location in a rural area and tries to climb it. (See
id. at pp. 931–932 & 938, fn. 4.) But paying patrons of ski resorts, waterfront marinas,
amusement parks, stadiums, arenas, state or national parks with improvements and
infrastructure, and other large-scale, for-profit recreational venues present quite another
calculus. Any owners of power lines, gas pipelines, railroad tracks, telecommunications
lines, cell phone towers or other utility equipment that may be situated on (or underneath)
such areas, and subject to licenses or easements that confer rights of access like PG&E’s
license does here, and any owners of concession licenses too (whether for food and drink,
boat rentals, zipline rides or bicycle rentals), would likely be immune from all but the
most aggravated forms of tort liability for premises liability claims even though the
landowner itself (having charged for entry) would not be. With mere negligence, and
even gross negligence, off the table, utilities and other licensees or easement holders
would have little, if any, incentive to conduct themselves safely on recreational property
even when an access fee is charged—particularly knowing that a visitor’s payment would
abrogate the landowner’s immunity from suit. We do not believe the Legislature
intended this as a price for encouraging free public access to recreational property.
PG&E’s interpretation also would lead to arbitrary distinctions. (See Klein, supra,
50 Cal.4th at p. 84.) For example, if a paying visitor to a private campground were
injured (or worse) by a falling utility pole, a dangerously obscured ditch, or even shards
property’ ” or, put another way, failed “to maintain land in one’s possession in a
reasonably safe condition.’ ” (Klein, supra, 50 Cal.4th at p. 80.)
21
of broken glass or construction debris left lying on the ground, that visitor could be
compensated in tort damages only if responsibility lay with the campground’s owner, but
not if PG&E or one of its maintenance crews were to blame, or a private concessionaire
licensed to sell food or amenities there, or anyone with an easement to cross the property
for ingress and egress. Viewed from the paying visitor’s perspective, that result is
arbitrary. (Cf. ibid. [discussing drunk driving scenario].) The visitor would be
indifferent to the niceties of who received the benefit of her entrance fee; from her
perspective, she merely could expect that, in paying it, she would not be held responsible
for her own safety as a tradeoff for public access to that land. (See Hubbard, supra,
50 Cal.3d at p. 192.)
VI.
The Case Law
As we have said, the question here is one of first impression under California law.
Nevertheless, the interpretation we adopt is supported by Ducey v. United States
(9th Cir. 1983) 713 F.2d 504 (Ducey), in which the Ninth Circuit construed a similarly
worded exception in Nevada’s recreational immunity statute that, like section 846, “does
not specify to whom consideration must be tendered.” (Ducey, at p. 513.) The Ninth
Circuit concluded that “consideration must be tendered directly or indirectly to a person
who has the power to grant or deny permission to participate in recreational activities” for
the exception to apply. (Ibid.)
The plaintiffs in Ducey were spouses of three people killed in a flash flood while
camping and boating in a national recreational area operated by the National Park
Service. (Ducey, supra, 713 F.2d at p. 507.) The victims had paid rental fees and other
charges to a concessionaire of the national park service for various amenities but had paid
no fee to either the park service or the United States to enter the area or to engage in
recreational activities. At issue was whether the decedents’ payments to the
concessionaire abrogated the United States’ immunity from suit under Nevada’s statute.
(Ducey, at pp. 507–509.) The Ninth Circuit held that they did, concluding both that these
charges constituted “consideration” within the meaning of Nevada’s statute even though
22
technically they weren’t entrance fees (Ducey, at pp. 509–512) and that they were paid in
return for permission to recreate, as required by the statute (id. at pp. 513–515).17
Necessary to the court’s decision on the latter point was its determination that
Nevada’s statute requires consideration to be paid to the party granting permission to
recreate. The court explained, “Subsection 41.510(3)(b) does not specify to whom
consideration must be tendered. We think it a fair reading of the provision, however, that
consideration must be tendered directly or indirectly to a person who has the power to
grant or deny permission to participate in recreational activities. Since the concession
agreement did not give [the concessionaire] the power to deny permission to recreate in
Eldorado Canyon, the exception is applicable only if consideration was tendered, directly
or indirectly, to the United States in return for permission to recreate in Eldorado
Canyon.” (Ducey, supra, 713 F.2d at p. 513, italics added.) For reasons irrelevant here,
the Ninth Circuit concluded that the condition was met (because the United States had
received consideration indirectly).18 (Ibid.)
The Ninth Circuit said that the result, moreover, was supported by general policy
considerations underlying the consideration exception. (Ducey, supra, 713 F.2d at
p. 514.) As Ducey explained, the consideration exception “is not simply a mechanical
test,” but is intended “to serve more broadly as a proxy for differentiating the
entrepreneur-landowner whose land is open for business reasons from the landowner
whom the statute encourages to open his land on a gratuitous basis by the promise of
17
Nevada’s statute provided in relevant part: “This section does not limit the
liability which would otherwise exist for: [¶] . . . [¶] (b) Injury suffered in any case where
permission to hunt, fish, trap, camp, hike, sightsee, or to participate in other recreational
activities, was granted for a consideration other than the consideration, if any, paid to the
landowner by the state or any subdivision thereof.” (Ducey, supra, at p. 509, fn. 3,
quoting Nev. Rev. Stat., § 41.510 (1973).)
18
The concession agreement gave the government “tangible economic benefits”
including a fixed percentage of all operational revenues, and the Ninth Circuit also
reasoned that implicit in the concession agreement was a requirement the government
would allow users to enter the area to use the concession facilities. (Ducey, supra,
713 F.2d at p. 513 & fn. 13.)
23
immunity.” (Ibid., italics added.) In other words, the exception is concerned chiefly with
ensuring public recreational access to land, not financial remuneration of landowners.
PG&E contends Ducey is distinguishable principally because there was a pattern
of indirect payment of consideration to the party whose immunity was held to be
abrogated. And that is accurate. But the reason those facts were relevant is because of
the legal standard the court applied, a standard PG&E overlooks. In Ducey (unlike here)
the party asserting immunity in litigation and the party with the power to grant access to
recreational users were one and the same (i.e., the United States, the actual landowner).
Under Ducey’s construction of the immunity statute, though, the fact that the party
claiming immunity had received consideration was legally irrelevant, and played no part
in the court’s analysis. The only relevant issue was whether consideration had been
received by the party who legally granted the plaintiff permission to participate in
recreational activities there. We read California’s statute similarly.19
PG&E cites several decisions it contends support a contrary interpretation, but we
do not agree. Three addressed the question of what constitutes consideration for
“permission to enter” under the statute, rejecting various benefits argued to qualify; they
did not address to whom consideration for permission to enter must be paid. (See
Johnson, supra, 21 Cal.App.4th at p. 312 [exception held inapplicable to hold harmless
agreement signed as a condition for free use of picnic area] and footnote 8, ante; Miller v.
Weitzen (2005) 133 Cal.App.4th 732, 739–741 [dues paid to horse riding club that were
used to maintain horse riding trails]; Mansion v. United States (9th Cir. 1991)
945 F.2d 1115, 1118–1119 [conjectural benefit of improved labor relations resulting from
19
PG&E also asserts Ducey is distinguishable because Nevada’s statute “did not
require payment for permission to enter the property but instead applied ‘ “where
permission to hunt, fish, trap, camp, hike, sightsee, or to participate in other recreational
activities, was granted for a consideration . . . .” ’ ” It does not explain why that matters,
though, and clearly it does not. That California’s exception is phrased in terms of
consideration paid for “permission to enter” for a recreational purpose (§ 846, 4th par.)
whereas Nevada’s is phrased in terms of consideration paid for permission to undertake
specified recreational activities (see footnote 17, ante) is a distinction without a
difference.
24
picnic held on employer’s property].) PG&E also cites what it calls “persuasive dicta”
that is simply an observation that confirms the legal issue we decide here is a question of
first impression. (See Johnson, at p. 316 [“we are aware of no cases in which the
consideration did not involve the actual payment of an entrance fee by plaintiff to
defendant”].) In addition, PG&E cites a portion of the First Circuit’s per curiam decision
in Collins v. Martella (1st Cir. 1994) 17 F.3d 1 construing New Hampshire’s recreational
use immunity statute, stating that the consideration exception is not triggered “simply
because a benefit is paid to an unconnected third party.” (Id. at pp. 2, 5.) The parties
disagree whether this language is dictum or an alternative holding but, regardless, PG&E
takes the language out of context. In that case, none of the owners of the beachfront
property in question were paid anything by the plaintiff for access to the beach where he
was injured. The court merely rejected the argument, nonsensical on its face, that under
New Hampshire’s statute, the purchase price the property owners paid third parties to buy
their lots constituted consideration paid for the plaintiff’s access to the private beach.
(See id. at p. 5.) We glean nothing of any import from the language PG&E quotes from
Collins.
Finally, at oral argument, PG&E’s counsel invoked what he characterized as a
“holding” of Wang, supra, 4 Cal.App.5th 1. We take a moment to address that point in
full to remind counsel of their obligation to represent legal authority accurately to this
court, an obligation no less weighty during oral advocacy than in counsel’s written briefs.
Wang was a personal injury action brought against the owners of a meadow who
had permitted participants in a historic wagon train event to camp out on their property
overnight along with their horses. The event participants paid a fee to the event
organizers to participate (not to the landowners), and the event organizers arranged for
accommodations. (Wang, supra, 4 Cal.App.5th at pp. 6–8, 29.) A horse ran away and
injured the plaintiff who was on a neighboring property and had nothing to do with the
event. (Id. at pp. 5–6.)
In oral argument, PG&E’s counsel argued that the court in Wang held the fee the
wagon train participants paid the event organizer did not trigger the consideration
25
exception because it wasn’t paid to the defendant landowner, which supported PG&E’s
construction of the statute. PG&E’s counsel stated that in Wang “the court of appeal
rejected an argument that that fee would waive the defendant landowners’ immunity,”
and in support he quoted the following portion of Wang, including Wang’s citation to
Johnson, supra.: “That [event organizer] raises funds and charges participants to join the
Wagon Train does not affect the landowner’s reliance on section 846. (Ibid. [company
employees paid company club to attend picnic].).” (Wang, supra, 4 Cal.App.5th at p. 29,
citing Johnson, supra, 21 Cal.App.4th at p. 310.)
To say we were surprised later to re-read the quotation in context would be an
understatement. The portion of the opinion from which counsel quoted has nothing to do
with the consideration exception. It concerns the question whether the wagon train was
for a recreational purpose, a wholly different issue. (See Wang, supra, 4 Cal.App.5th at
pp. 28–30.) Counsel’s argument that Wang addressed whether the event fee triggered the
consideration exception borders on a misrepresentation. We do not condone it, and trust
in the future counsel will take greater care.
VII.
PG&E’s Remaining Contentions
Having concluded the consideration exception applies here, we come to PG&E’s
remaining arguments in favor of narrowing the exception, and reject them.20
20
PG&E also makes two arguments in passing not raised below and not
developed to any meaningful degree in this court, and we decline to consider them.
Specifically, it contends it would be “illogical” for it to be denied immunity because it
owed no duty to protect Zachary from this falling tree in the first place; we decline to
address the scope of its common law duties because the only issue PG&E raised in its
summary judgment motion is whether any such duty has been abrogated by section 846.
Nor do we consider PG&E’s parenthetical statement in its petition, not supported by any
argument in its supporting memorandum of points and authorities, that the $50 campsite
rental fee was “arguably not consideration for permission to enter the property.” (But see
Graves v. U.S. Coast Guard (9th Cir. 1982) 692 F.2d 71, 73 [fee paid for permission to
camp abrogates immunity for injuries sustained in swimming accident].)
26
A. The Statute’s Breadth
PG&E argues the consideration exception should be narrowly construed, citing
authority that section 846 is “extremely broad” in scope (Ornelas, supra, 4 Cal.4th at
p. 1105) and that exceptions to immunity should be construed narrowly (Johnson, supra,
21 Cal.App.4th at p. 315). But the Supreme Court has not addressed whether immunity
exceptions should be narrowly construed and, regardless, these principles go only so far.
In Klein our high court rejected a broad construction of section 846 that was at odds with
its plain language. “Although section 846 is broad in many respects,” the court said, “it
is not all-encompassing.” (Klein, supra, 50 Cal.4th at p. 81.) Furthermore, cases
declining to construe the consideration exception broadly rejected interpretations that
were practically limitless. (See Johnson, at p. 316 [rejecting interpretation that would
“encourage an injured recreational user to claim that nearly any rule, restriction or
regulation imposed by a landlord” granting free access would abrogate immunity];
Mansion v. United States, supra, 945 F.2d at p. 1119 [rejecting interpretation that “would
expand ad absurdum allowing the exception to effectively swallow the rule”].) Here,
though, all we decide is that payment of any consideration for permission to enter
property for a recreational purpose abrogates the immunity under section 846 for anyone
potentially responsible for the plaintiff’s injuries. There is no risk of the consideration
exception swallowing the general rule of immunity by this textually based,
straightforward, bright-line determination.
B. The Invitation Exception
PG&E also argues the consideration exception should be construed in parallel with
the separate exception for invited persons. That exception, applicable “to any persons
who are expressly invited rather than merely permitted to come upon the premises by the
landowner” (§ 846, 4th par., item (c)), has been held by our colleagues in Division Three
to abrogate the immunity of the invitor only and not others who enjoy immunity under
27
the statute too.21 (See Jackson, supra, 94 Cal.App.4th at p. 1118.) Thus in Jackson,
PG&E was held immune from suit, as an easement holder, from claims by a child who
was injured while retrieving a kite from a power line despite evidence that the landowner
had expressly invited the child onto the property where the power line was located. (Id.
at pp. 1115–1119.) In resolving the scope of the invitation exception, Jackson reasoned
principally that its interpretation was “consistent with the Legislature’s clear intent to
immunize all holders of interests in real property” (id. at p. 1118), and that a contrary
result was not consistent with the rationale for the invitation exception, because
“section 846 was designed to encourage property owners to permit recreation on their
land, [whereas] ‘[b]y carving out an exception for those persons who are personally
invited, the Legislature showed it did not have a similar concern with encouraging
property owners to provide access for the owner’s personal guests. . . . Property owners
do not need governmental encouragement to permit personal guests to come onto their
land.’ ” (Id. at pp. 1118–1119.)
Jackson pre-dates Klein’s admonition that section 846 was not intended to be “all-
encompassing” and Klein’s actual holding which reflects that the statute has its limits,
and is not a panacea for all manner of tort claim arising from recreational pursuits. (See
Klein, supra, 50 Cal.4th at p. 81.) We express no opinion as to whether Jackson was
correctly decided, though, because there are significant differences between the
consideration and invitations exceptions, and we do not agree the two provisions should
be read in parallel.
To start with, the two exceptions differ structurally. Section 846’s third paragraph
negates the liability of all holders of property interests, “whether possessory or
nonpossessory, who give[] permission to another for entry or use” for a recreational
purpose, by providing among other things that the giving of such permission “does not
thereby . . . (b) constitute the person to whom permission has been granted the legal
21
The Supreme Court has expressly not weighed in. (See Prince v. Pacific Gas &
Electric Co., supra, 45 Cal.4th at p. 1160, fn. 5.)
28
status of an invitee or licensee to whom a duty of care is owed.” (§ 846, 3d par.) The
express invitation provision of the fourth paragraph then clarifies that section 846 does
not apply “to any persons who are expressly invited rather than merely permitted to come
upon the premises by the landowner.” (Id., 4th par., item (c).) Thus, reading the statute
as a whole, the invitation exception expressly limits one of the immunities conferred by
the third paragraph. (See Klein, supra, 50 Cal.4th at p. 78 [third paragraph “adds an
additional immunity” beyond those in first paragraph].) But the consideration exception
does not. And because the immunity the express invitation exception limits is itself
limited to holders of property interests “who give[] permission to another for entry or
use” for a recreational purpose, there is a textual basis for similarly limiting the express
invitation exception.
The two exceptions also differ considerably in terms of their relationship to the
Legislature’s goal of encouraging free public access to property. Zachary argues, and we
agree, that, unlike charging consideration for permission to enter, an express invitation
doesn’t undermine the statute’s purpose. As Zachary puts it, “Exacting consideration in
exchange for permission to enter for a recreational purpose necessarily excludes those
unwilling to pay the consideration, and thus entirely vitiates the statute’s objective of
holding the property open to the public free of charge. In contrast, expressly inviting one
person to enter does not thereby exclude others not expressly invited. The public at large
remains free to enter and recreate without charge.” In other words, when consideration is
charged for the public to enter property to recreate there is no longer a reason for any
property interest holder to retain immunity.
Finally, a narrow interpretation of the invitation exception would not discourage
property owners from opening their lands to recreational use in the way we have
explained PG&E’s construction of the consideration exception would. Unlike the
consideration exception (“where permission to enter for the above purpose was granted
for a consideration” (§ 846, 4th par., item (b))), the express invitation exception applies
even when the plaintiff has no recreational purpose in visiting a premises; immunity is
abrogated by an invitation for any purpose. (See Calhoon v. Lewis, supra,
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81 Cal.App.4th at p. 114.) Thus, eliminating only the invitor’s immunity when an invited
guest gets injured while participating incidentally in an activity considered to be
recreational (see, e.g., id. at p. 110 [skateboarding while waiting for a friend]), and not
the immunity of others such as license or easement holders, would not necessarily
dissuade that landowner from permitting any recreational access by the public. As a
practical matter, there is little risk a property owner would close its property to
recreational users generally if forced to bear liability for injuries caused by an easement
or license holder to an invited guest who might or might not even have a recreational
purpose in visiting. As we have explained, though, the calculus conceivably would be
quite different regarding paying visitors making use of property on a (presumably) more
regular and higher-volume basis, and specifically for a recreational purpose.
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DISPOSITION
We do not think the Legislature intended to confer on holders of nonpossessory
interests absolute immunity from premises liability to paying recreational visitors of
property (save for willful and malicious misconduct), in circumstances in which even the
property’s owner would not be immune. Section 846’s consideration exception means
what it says: “This section does not limit the liability which otherwise exists . . . (b) for
injury suffered in any case where permission to enter for the above purpose was granted
for a consideration . . . .” (§ 846, 4th par., italics added.) When an individual pays
consideration for permission to enter property for a recreational purpose, section 846
does not apply.
The petition for writ of mandate and/or prohibition is denied. The stay of trial
court proceedings this court entered on February 4, 2016, is hereby lifted as between
Plaintiff Zachary Rowe and Defendant Pacific Gas and Electric Company only. This
decision shall become final 30 days after its filing.
STEWART, J.
We concur.
KLINE, P.J.
RICHMAN, J.
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Trial Court: San Mateo County Superior Court
Trial Judge: Hon. Steven L. Dylina
Counsel:
Horvitz & Levy, Robert H. Wright, Jeremy B. Rosen; Pacific Gas & Electric Company,
Barbara J. Damlos; Sedgwick LLP, Gregory C. Read for Petitioner.
Rouda, Feder, Tietjen & McGuinn, Timothy G. Tietjen; Law Office of Gerald Clausen
and Gerald Clausen for Real Party in Interest.
32