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Klein v. United States

July 26, 2010


9th Cir. No. 06-55510 C.D. Cal. No. CV-05-05526-PA

The opinion of the court was delivered by: Kennard, J.

Plaintiff Alan Richard Klein was riding a bicycle for recreation on a two-lane paved road in Angeles National Forest in Southern California when he was struck head-on by an automobile driven by a part-time volunteer working for the United States Fish and Wildlife Service. Having been seriously injured in the collision, plaintiff sued the United States government (the owner of the national forest land) and its volunteer worker.

At issue here is the scope and applicability of California's Civil Code section 846, which provides, as relevant here, that a landowner "owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose." The Ninth Circuit Court of Appeals has asked this 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 cause personal injury to a recreational user of that land."*fn1

We conclude that Civil Code section 846's liability shield does not extend to acts of vehicular negligence by a landowner or by the landowner's 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.


The facts are taken from the Ninth Circuit's order in Klein v. United States (9th Cir. 2008) 537 F.3d 1027 requesting that this court decide a question of California law.

On August 29, 2004, plaintiff Alan Richard Klein was riding his bicycle for recreation on Bear Divide Road in Angeles National Forest in California. Bear Divide Road is a two-lane paved road that is open to the public and that is owned and maintained by defendant United States government. As plaintiff*fn2 was cycling northbound, he was struck head-on by an automobile driven by defendant David Anderberg, a part-time volunteer for the United States Fish and Wildlife Service, who later told a California Highway Patrol officer that at the time of the collision he had been on his way to observe birds.

The injuries plaintiff sustained in the collision were severe, including a partially severed ear, broken ribs, a collapsed lung, a brain injury affecting memory and speech, and a brachial plexis injury*fn3 that permanently deprived him of the use of his left arm. In addition to these physical injuries, the collision resulted in a substantial loss of income, and thus serious financial hardship, to plaintiff and his wife, coplaintiff Sheryll Klein. This occurred because plaintiff was forced to take a medical retirement from his federal government job as an air traffic controller, while his wife, so that she could provide care for plaintiff, took an early retirement from her job as an elementary school principal.

After exhausting their administrative remedies, plaintiffs brought suit against the United States and Anderberg in federal district court in the Central District of California. The action against the United States was brought under the Federal Tort Claims Act, which provides for liability "where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." (28 U.S.C. § 1346(b)(1).) Against the United States, plaintiffs alleged two negligence theories: (1) the United States negligently maintained Bear Divide Road in an unsafe condition, and (2) the United States was vicariously liable for the vehicular negligence*fn4 of its volunteer employee, David Anderberg. Only the latter negligence theory is at issue here.

In its answer to plaintiffs' complaint, the United States defended on the ground that Civil Code section 846 shielded it, as owner of the United States Forest Service land on which the accident had occurred, from any negligence liability to a person, such as plaintiff, who was injured while using that land for recreation. The United States also disputed plaintiffs' allegation that, at the time of the accident, Anderberg was acting in the course and scope of his employment as a Forest Service volunteer.

The United States filed a summary judgment motion, which the district court granted. Regarding plaintiffs' negligence theory that the United States was vicariously liable for Anderberg's vehicular negligence, the district court assumed for purposes of ruling on the motion that at the time of the accident Anderberg was a United States employee acting within the course and scope of his employment. The district court concluded, nonetheless, that California's Civil Code section 846 immunized the United States, as a landowner, from liability for any injuries to plaintiffs resulting from negligent driving by Anderberg.

Plaintiffs appealed to the Ninth Circuit Court of Appeals. Recognizing the important issue of California law presented by this case, the Ninth Circuit requested that we decide this question: Does section 846 immunize a landowner from liability for acts of vehicular negligence committed by the landowner's employee in the course and scope of his employment that cause personal injury to a recreational user of that land?


In its order requesting that this court decide a question of California law, the Ninth Circuit explained why it had concluded that the question had not been authoritatively resolved under existing precedents. The Ninth Circuit's explanation provides a useful background for resolving the legal question at issue.

The Ninth Circuit observed, preliminarily, that although the landowner in this case happens to be the United States, under the Federal Tort Claims Act the federal government is liable only if a private person would be liable in the same circumstances under state law. Accordingly, the question to be decided is whether Civil Code section 846's immunity would protect a private landowner from liability for damages resulting from physical harm to a person who has entered the landowner's property to engage in a recreational activity, when that harm was caused by the vehicular negligence of the landowner or the landowner's employee. (Klein v. United States, supra, 537 F.3d 1027, 1030.)

Regarding that question, the Ninth Circuit concluded that there was " 'no clear controlling California precedent' squarely" addressing the issue. (Klein v. United States, supra, 537 F.3d 1027, 1030.) The court recognized that an intermediate state appellate court -- Division Six of the Second Appellate District Court of Appeal -- had held, in Shipman v. Boething Treeland Farms, Inc. (2000) 77 Cal.App.4th 1424, that Civil Code section 846's landowner immunity does extend to vehicular negligence. In Shipman, the plaintiff, a 16-year-old boy, was driving an all-terrain vehicle along a dirt road on the defendants' private property when his vehicle collided with a station wagon driven by the defendants' employee. The plaintiff sued the defendants, seeking damages for personal injury suffered in the collision, basing the action in part on the theory that the defendants were vicariously liable for negligent driving by their employee. The trial court granted summary judgment for the defendants, and the plaintiff appealed. The Court of Appeal affirmed, concluding that Civil Code section 846 shielded the defendants from negligence liability for an injury to an uninvited recreational user of their land, even an injury caused by vehicular negligence. (Shipman, supra, 77 Cal.App.4th at pp. 1428, 1432.)

The Ninth Circuit recognized that Shipman is squarely on point, and it acknowledged that it generally accepts state intermediate appellate court decisions in the absence of relevant precedent from a state's highest court. (Klein v. United States, supra, 537 F.3d 1027, 1031-1032.) But the Ninth Circuit said that in this particular instance it had found what it termed "convincing evidence" that this court likely would disagree with the Court of Appeal's decision in Shipman. (Klein, at p. 1032.) The Ninth Circuit explained that it had found nothing in Civil Code section 846's language, or in the circumstances surrounding its enactment, to indicate that it was intended to provide immunity for negligent driving or, otherwise stated, that it was "anything more than a premises liability exemption statute." (Klein v. United States, supra, 537 F.3d 1027, 1032.)

Its doubts about Shipman's validity were also based, the Ninth Circuit explained, on certain statements in this court's opinions in Ornelasv. Randolph (1993) 4 Cal.4th 1095 (Ornelas) and Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148 (Avila). (Klein v. United States, supra, 537 F.3d 1027, 1032-1034.)

In Ornelas, this court held that Civil Code section 846 immunized a property owner from liability for personal injuries that eight-year-old Jose Ornelas had sustained on the owner's property. The injuries occurred when other children playing on top of old farm machinery that was stored on the defendant's property dislodged a metal pipe that fell on the Ornelas child. (Ornelas, supra, 4 Cal.4th 1095, 1098.) This court rejected the argument, supported by earlier Court of Appeal decisions, that Civil Code section 846 does not apply if the property on which the injury occurred was, at the time of the injury, unsuitable for recreational use. (Ornelas, supra, at p. 1108.) The Ninth Circuit found significance in this court's explanation in Ornelas of the rationale for section 846 immunity: "One who avails oneself of the opportunity to enjoy access to the land of another for one of the recreational activities within the statute may not be heard to complain that the property was inappropriate for the purpose." (Ornelas, supra, at p. 1108.) This description, the Ninth Circuit stated, "invokes the concept of premises liability." (Klein v. United States, supra, 537 F.3d 1027, 1033.)

Avila, the other decision of this court mentioned by the Ninth Circuit, did not directly involve Civil Code section 846. Rather, it concerned the scope of California's Government Code section 831.7, which immunizes public entities from liability for injuries sustained during a "hazardous recreational activity."*fn5 But in Avila this court recognized that section 831.7's legislative history revealed that it had been "designed to mirror Civil Code section 846's circumscription of property-based duties." (Avila, supra, 38 Cal.4th 148, 157.) For that reason, this court in Avila gave some consideration to the scope of the immunity conferred by section 846. The Ninth Circuit reasoned that what this court said in Avila about section 846, although not binding as precedent, was relevant in determining how this court would likely decide the question of California law regarding the scope of section 846. (Klein v. United States, supra, 537 F.3d 1027, 1032-1033.)

In Avila, the plaintiff was a college student who had been struck in the head by a pitched ball while at bat during an intercollegiate baseball game at a community college. (Avila, supra, 38 Cal.4th 148, 152.) The plaintiff sued the college, seeking damages for unspecified personal injuries caused by being hit by the baseball. (Id. at pp. 152-153.) He alleged that the pitcher had hit him intentionally and that the college was negligent in failing to supervise and control the pitcher. (Id. at p. 153.) In a demurrer to the plaintiff's complaint, the defendant community college relied on Government Code section 831.7. The trial court sustained the demurrer, but on the plaintiff's appeal, the Court of Appeal reversed, concluding that section 831.7 did not apply under these circumstances. (Avila, supra, at p. 153.) This court granted review.

Finding Government Code section 831.7's relevant language somewhat ambiguous, this court reviewed the statute's legislative history to determine the legislative intent underlying its enactment. This court stated its conclusion about that legislative intent in these words, which the Ninth Circuit considered particularly significant: "Thus, Government Code section 831.7 was adopted as a premises liability measure, modeled on Civil Code section 846, and designed to limit liability based on a public entity's failure either to maintain public property or to warn of dangerous conditions on public property. Nothing in the history of the measure indicates the statute was intended to limit a public entity's liability arising from other duties, such as any duty owed to supervise participation in particular activities." (Avila, supra, 38 Cal.4th 148, 157-158.)

Ultimately, however, this court found it unnecessary to decide "whether the immunity created by [Government Code] section 831.7 extends only to premises liability claims." (Avila, supra, 38 Cal.4th 148, 159.) Instead, this court reached the narrower conclusion that "school-sponsored and supervised sports activities are not 'recreational' in the sense intended by the statute, and thus section 831.7 does not apply to immunize public educational entities from liability to students for injuries sustained during participation in such activities." (Ibid.)

Finally, to explain its request that this court decide whether Civil Code section 846's immunity extends to vehicular negligence claims, the Ninth Circuit stressed the potential impact the resolution of that issue would have, in these words: "[I]t is of no small moment that the federal government owns millions of acres of National Park and National Forest land within the state of California. Shielding the United States from liability for the negligent driving, and possibly for other negligent acts, of its employees on all of these lands may have substantial and negative consequences for the many residents of and visitors to California who make use of federal lands for recreational purposes." (Klein v. United States, supra, 537 F.3d 1027, 1033.)


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." (Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 715; accord, Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 986; Coachella Valley Mosquito etc. District v. Cal. Public Employee Relations Bd. (2005) 35 Cal.4th 1072, 1087.) We look first to the words of the statute, "because the statutory language is generally the most reliable indicator of legislative intent." (Hassan v. Mercy American River Hospital, supra, at p. 715; accord, Chavez v. City of Los Angeles, supra, at p. 986; People v. Toney (2004) 32 Cal.4th 228, 232.)

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 the historical circumstances behind its enactment. (Mejia v. Reed (2003) 31 Cal.4th 657, 663.) Finally, the court may consider the likely effects of a proposed interpretation because " '[w]here uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation.' " (Ibid., quoting Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.)

We turn now to the text of Civil Code section 846 to determine its plain meaning with regard to the statute's purpose.

A. Statutory Language

Civil Code section 846, in its first paragraph, defines the scope of the immunity granted to California landowners, in these words: "An owner of any estate or any other interest in real property, whether possessory or non-possessory, 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 such premises to persons entering for such purpose, except as provided in this section." In its second paragraph, section 846 defines "recreational purpose" by reference to a list of activities that qualify as "recreational," including among them all types of "vehicular riding." In its third paragraph, section 846 states that by allowing another to enter or use property for recreation the property's owner does not "(a) extend any assurance that the premises are safe for such 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 such person to whom permission has been granted except as provided in this section." Finally, in its fourth paragraph, section 846 provides three limitations on, or exceptions to, the landowner immunity it has granted, stating that the immunity does not apply to "willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity," nor does it apply when permission to enter is granted for a consideration, nor when persons are expressly invited rather than merely permitted to enter the land.

Preliminarily, we observe that although Civil Code section 846 is commonly referred to as an immunity provision, and although for convenience we refer to it that way here, it is does not confer an immunity in the strictest sense of that term, which is "a complete defense . . . [that] does not negate the tort." (Black's Law Dict. (1996 pocket ed.) p. 298; see Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 832, fn. 2.) Section 846 does not merely eliminate a damage remedy for certain types of negligent conduct by a landowner. The wording of section 846's first paragraph, providing that a landowner "owes no duty of care" to persons using the land for recreation, either to maintain safe premises or to warn of hazards, does ...

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