HomeMy WebLinkAboutDI 92-01; Open Space & Conservancy Resource; Discussion Item (DI) (5)I
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February 19,1993
TO: ASSOCIATE PLANNER, TERRI WOODS
FROM:
Although the Financial Management Director will be incorporating this information in a final report
to Council on among other things, liability and open space, and the information I am providing does not represent a complete discussion about trails and liability, my preliminary findings on
liability associated with equestrian trails is shown below.
Sections 831.2 and 831.4 of the Tort Claims Act, Chapter 1 of Title 1 of Part 1 of the Government
Code distinguish between "unimproved" and improved" public property for purposes of imposing
liability for injuries caused by a natural condition of the property. The sections expressly state that
a public entity is not liable for injuries on unimproved public property caused by a natural condition. Sections 831.2 and 831.4 read as follows:
"831.2 Neither a public entity nor a public employee is liable for an injury caused
by a natural condition of any unimproved public property, including but not limited
to any natural condition of any lake, stream, bay, river, or beach."
"831.4 A public entity, public employee, or a grantor of a public easement
to a public entity for any of the following purposes, is not liable for an injury caused by a condition of:
"(a) Any unpaved road which provides access to fishing, hunting, camping,
hiking, riding including animal and all types of vehicular riding, water
sports, recreational or scenic areas and which is not a (1) city street or highway or (2) county, state, or federal highway or (3) public street or highway of a joint highway district, boulevard, district, bridge, and highway district or similar district formed for the improvement or building of public streets or highways.
"(b) Any trail used for the above purposes.
"(c) Any paved trail, walkway, path, or sidewalk on an easement of way
which has been granted to a public entity, which easement provides access
to any unimproved property, so long as such public entity shall reasonably
attempt to provide adequate warnings of the existence of any condition of
the paved trail, walkway, path, or sidewalk which constitutes a hazard to health or safety. Warnings required by this subdivision shall only be
required where pathways are paved, and such requirement shall not be
construed to be a standard of care for any unpaved pathways or roads."
In addition, Section 831.7 provides, in part, that:
"(a) Neither a public entity nor a public employee is liable to any person
who participates in a hazardous recreational activity, including any person who assists the participant, or to any spectator who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to himself or herself and was voluntarily in the
place of risk, or having the ability to do so failed to leave, for any damage
or injury to property or persons arising out of that hazardous recreational
activity.
"(b) As used in this section, 'hazardous recreational activiw means a
recreational activity conducted on property of a public entity which creates
a substantial (as distinguished form a minor, trivial, or insignificant) risk of
injury to a participant or spectator.
'"Hazardous recreational activity' also means: .....Animal riding, ......"
In summary, Section 831.4 specifically provides immunity to public entities for injuries caused by a condition of any trail which provides access to recreational or scenic areas and such activities as
horseback riding. If the trail is paved, then the public entity must "reasonably attempt to provide
adequate warnings of ...any condition ... which constitutes a hazard to health or safety". Finally, neither a public entity nor a public employee is liable to any person who participates in a hazardous
activity, the definition of which includes animal riding.
However, the public landowner is liable for the failure "to guard or warn of a known dangerous
condition or of another hazardous recreational activity known to the public entity or employee that
is not reasonably assumed by the participant as inherently a part of the hazardous recreational
activity out of which the damage or injury arose" (para. (l), subd. (c), Sec. 831.7). In addition,
under these provisions, a public landowneis potential liability is not limited if it would otherwise
exist for any of the following:
"831.7. ***
"....( 2) Damage or injury suffered in any case where permission to participate
in the hazardous recreational activity was granted for a specific fee. For the purpose of this paragraph, a 'specific fee' does not include a fee or
consideration charged for a general purpose such as a general park
admission charge, a vehicle entry or parking fee, or an administrative or
group use application or permit fee, as distinguished from a specific fee
charged for participation in the specific hazardous recreational activity out
of which the damage or injury arose.
"(3) Injury suffered to the extent proximately caused by the negligent failure
of the public entity or public employee to properly construct or maintain in
good repair any structure, recreational equipment or machinery, or
substantial work of improvement utilized in the hazardous recreational
activity out of which the damage or injury arose.
.
I r
..
"(4) Damage or injury suffered in any case where the public entity or
employee recklessly or with gross negligence promoted the participation in
or observance of a hazardous recreational activity. For purposes of this
paragraph, promotional literature or a public announcement or
advertisement which merely descnies the available facilities and services on the property does not in itself constitute a reckless or grossly negligent promotion.
* *"
In conclusion, there are a couple of statutory immunities which reduce the City's liability with
regard to equestrian trails.
1. The City may not be liable for injury caused by the condition of any paved trail which provides access to an unimproved property, so long as the City makes a reasonable attempt
to provide adequate warning of the existence of any condition along the trail which constitutes a hazard to health or safety; and
2. The City may not be liable to any person participating in a hazardous recreational activity
(horseback riding for purposes of this discussion), or any other person who knows of or
should know of the substantial danger of these activities, as long as the City:
a. Warns of a known other dangerous condition or hazardous recreational activity which is not an inherent part of equestrian activities;
b. Does not charge a specific fee for allowing participation in equestrian activities; and
c. Properly constructs and maintains in good repair any structure, recreational
equipment or other substantial work of improvement utilized in the equestrian
activities.
As I have stated, these are preliminary findings which will be addressed in the Financial
Management Director's report to Council on liability and other issues surrounding open space. Also,
as we discussed earlier, CMIA (the liability insurance pool of which the City is a member) has
indicated some reservations about an equestrian trail in the City. I have requested a policy
statement regarding equestrian trails from this organization.
c: City Attorney Financial Management Director