Recreational Trail Immunity is Narrowed By Courts of Appeal

by Arne B. Sandberg

Arne B. Sandberg is Senior Counsel in Lozano Smith’s Walnut Creek office. Mr. Sandberg represents public agencies in construction disputes and complex property cases. He has litigated property and construction cases on behalf of public agencies since 1993.

The English common law rule of rex non potest peccare ("the king can do no wrong"), which is the basis of government immunity in the United States, has recently received a second look in California in relation to the recreational trail immunity. Immunity for public agencies relating to recreational trails has traditionally been broadly applied, providing significant protection from liability when hazards on adjacent property result in injuries to users of recreational trails. However, two 2017 cases have narrowed that protection from liability so that public agencies now should think carefully about how their trails relate to their surroundings.

California Government Code section 831.4 ("Section 831.4") provides immunity for public agencies and employees from an injury caused by a "condition of" any trail used for fishing, hunting, camping, hiking, riding, water sports, recreational or scenic areas, or access to these purposes. If the condition of the trail is "relating to [the trail’s] design," then the immunity still applies.¹