Adams Stirling PLC


Horses. Miller sued the association after being injured while riding her horse on a trail on county-owned land. The trail was maintained by the homeowners association. The accident took place on the Weitzens' private driveway that crossed over the trail. The driveway was an easement across the trail. The court ruled against Miller. It held that Civil Code § 846 protects easement owners and property owners from liability for recreational use of their property. (Miller v. Weitzen 2005 DJDAR 12579.)

Dogs. Eleven-year-old Cody was attacked by dogs and severely injured. The attack occurred on a private road in an association. Plaintiffs sought to expand liability from the dog's owner to the association because it held access easements over the road. The court declined to expand liability to the association which did not create the hazard, did not own the dogs, had no interest in the land from which the dogs escaped, and did not own the road where the attack occurred. (Cody v. Falletti.)

Recreational Immunity. In general, associations are not liable for injuries that occur on equestrian and walking trails per California’s recreational use immunity statute.  (Civ. Code § 846.)  This statute provides that owners of land used for recreational purposes, have no duty of care to keep the premises (trails and open space) safe for entry or use by others. Recreational purposes includes hiking, nature walks, riding, as well as horseback riding. The statute does not require that warning of hazardous conditions on trails and open spaces be provided.

Exceptions to Immunity. There are exceptions to recreational immunities. Following are some examples:

1.  Unreasonable Risk of Harm. Landowners have a duty to exercise ordinary care in management of premises in order to avoid exposing persons to unreasonable risk of harm. Determination of whether a property owner owed a duty toward an injured person entails an inquiry as to whether, in the management of his or her property, the owner has acted as a reasonable person in view of the probability of injury to those in the exceptional cases.

If there are any latent or concealed perils on the land, the possessor is under a duty to exercise ordinary care either to make the condition reasonably safe for those coming onto the land or to give such persons a warning sufficient to enable them to avoid the harm. Indeed, where the occupier of land is aware of a concealed condition involving, in the absence of precautions, an unreasonable risk of harm to those coming in contact with it, and is aware that a person on the premises is about to come in contact with it, the court can reasonably conclude that a failure to warn or to repair the condition constitutes negligence.

2.  Willful  or Malicious. If there was a willful or malicious failure by an association to guard against or warn of dangerous conditions, use, structure or activity, it would likely be found liable for injuries that occurred.

3. Fee to Use Trails. If an association charged people to use its trails and open space areas, it can be held to a higher standard of care. For example, a golfer was stung 50 times by a swarm of yellow jackets and almost died. Clubs have a duty to exercise reasonable care to protect patrons against the foreseeable risk posed by yellow jackets. The golf club argued it had no duty to protect golfers from insects without prior knowledge of their existence. The court found the club liable because it did not regularly inspect the grounds for pests or use any preventative measures to control yellow jackets. (Staats v. Vintner's Golf Club, LLC.)

4.  Invitation to Use. An association could be found liable if it expressly invites, rather than merely permits, persons to go on the trails and open spaces. The owner of premises owes a duty to an invitee to maintain the premises in a reasonably safe condition and to warn the invitee of any dangerous condition which is actually or constructively known to him, but he is not liable for injury to the invitee which results from a condition that is obvious or should have been observed by the invitee in the exercise of reasonable care.  An invitee is a business visitor who is invited or permitted to enter or remain on the land of another for a purpose directly or indirectly connected with business dealings between such person and the owner or possessor of the land.

5.  Employee Negligence. Negligence by association employees can create liability. For example, if an employee drives a vehicle negligently on the trails or open space and injures someone, the association would likely be found liable.

Maintenance. With the exceptions described above, associations should not rely on recreational immunities to protect them from liability. Instead, associations should have a regular inspection and maintenance schedule for trails and open areas. If, for example, a trail has been washed out, an association should close that trail, post signs and maintain the trail. Not doing so may be construed as a willful failure to guard against dangerous use of the trail, which may be a basis of liability if someone is injured.

Warning Signs. Generally, it is a good idea to post warning signs and disclaimers at the entry point of the trail as this helps to mitigate liability. 

Disability Compliance. See related topic on making trails ADA Compliant.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

Adams Stirling PLC