(Recreational Use Immunity) Civil Code Section 846 does not shield landowner from liability to recreational user for injuries caused by negligent driving of an employee

(Recreational Use Immunity) Civil Code Section 846 does not shield landowner from liability to recreational user for injuries caused by negligent driving of an employee.  Alan Richard Klein v. United States of America,  (No. S165549, 9th Circuit No. 06-55510 C.D. Cal No. CV-05-05526-PA, California Supreme Court  July 26, 2010)

The issue in the is case presented to the California Supreme Court had to do with the scope and applicability of California Civil Code section 846, which provides that a landowner “owes no duty of care to keep the premises safe for entry for use by others for any recreational purpose”.  The Ninth Circuit Court of Appeals asked the California Supreme Court to decide whether this provision applies to acts of vehicular negligence committed by the landowner’s employee in the course and scope of his employment that causes personal injury to a recreational user of that land. 

The California Supreme Court concluded that the subject code section does not extend to acts of vehicular negligence by a landowner or the landowner’s employee while acting within the course and scope of employment.  The court noted that the phrase “keep the premises safe” describes the property based duties underlying premises liability which is a liability category that does not include vehicular negligence.  Thus, Section 846 does not bar a recreational user’s vehicular negligence claim against landowner.  Further, the court held that Section 846 does not release landowners or their employees from their duty to use do care while engaging in potentially hazardous activities, including driving a vehicle.  Thus, the court held that Section 846 does not shield a landowner from liability from recreational user for injuries caused by the negligent driving of the landowner’s employee.

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