BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
SB 1072 (Fuller)
As Introduced
Hearing Date: April 22, 2014
Fiscal: No
Urgency: No
RD
SUBJECT
Real Property: Duty of Care: Recreational Purposes: Aviation
Activities
DESCRIPTION
Existing law states that an owner of real property owes no duty
of care to persons using his or her property for recreational
purposes, and codifies a list of activities deemed to be
recreational purposes.
This bill would add aviation activities to the codified list of
recreational purposes.
BACKGROUND
Generally speaking, every person has a duty to act as a
reasonably prudent person in his or her own acts so as not to
create unreasonable risks to foreseeable others. This principle
is reflected in California statutory law, which generally
provides that everyone is responsible, not only for the result
of his or her willful acts, but also for an injury to another
caused by his or her lack of ordinary care or skill in the
management of his or her property or person. (Civ. Code Sec.
1714(a).)
Traditionally, at common law, landowner duties were more
limited, with their specific duties premised upon three
classifications of individuals who might come on to their land:
(1) invitees (e.g. business visitors or any persons who enter at
the express or implied invitation of the owner or occupant for a
purpose of common interest or mutual benefit of both the owner
(more)
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or occupant and that person); (2) licensees (e.g. social guests
or other persons coming on to the land by consent or permission
for purposes of his or her own, having no relation to the
business of the owner or occupant); and (3) trespassers. With
respect to an invitee, a landowner owed a duty of reasonable
inspection and to use reasonable care to protect the invitee
from conditions that create unreasonable risk of harm of which
the landowner knows or should know. With respect to a licensee,
the landowner owed a duty not to injure the licensee willfully
or wantonly, or through gross negligence, and to warn of or make
safe any dangerous condition that the landowner had actual
knowledge of. As to trespassers, if unknown, the landowner
merely had a duty to refrain from intentional harms or "willful
or wanton injury," and no duty was owed to keep the premises in
safe condition or to carry on activities carefully. In
contrast, where the defendant knew or should have known that a
trespasser had come on the land, he or she had the duty to warn
of artificial conditions constituting concealed dangers, and to
exercise reasonable care in carrying on activities.
In 1968, the state Supreme Court largely repudiated the
traditional invitee-licensee-trespasser approach and substituted
it with the basic approach of foreseeability of injury to
others. As such, landowners must generally act as a reasonable
person in view of the probability of injuries to others. At the
same time, however, the plaintiff's status as a trespasser,
licensee, or invitee may still have some bearing on the
liability of the landowner; but that status is no longer
determinative. See Rowland v. Christian (1968) 69 Cal.2d 108;
see also 6 Witkin Cal. Sum. Torts Sec. 1086, 1118.)
Nonetheless, in order to encourage landowners to open their
properties and allow the general public to use the land free of
charge for recreational purposes, California has limited the
risk of liability to landowners for ordinary negligence toward
nonpaying recreational users of their land. Specifically, under
Section 846, an owner generally owes no duty to keep his or her
premises safe or to warn of hazards as to persons entering with
permission for "any recreational purpose," unless: (1) there is
willful or malicious failure to guard or warn against a
dangerous condition by the landowner; (2) the landowner receives
consideration from the person or from others for the same
purpose; or, (3) the person is expressly invited, as opposed to
merely permitted, to come onto the premises by the landowner.
The statute defines the term "recreational purpose" to include
activities ranging from picnicking to hunting, and sport
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parachuting to snowmobiling, and was last amended in 1988 to
include hang gliding. (AB 3177 (Bradley, Ch. 129, Stats.
1988).)
This bill, sponsored by the Recreational Aviation Federation,
would add "other aviation activities" to the definition of
recreational purposes.
CHANGES TO EXISTING LAW
Existing law provides that everyone is responsible, not only for
the result of his or her willful acts, but also for an injury to
another caused by his or her lack of ordinary care or skill in
the management of his or her property or person, except so far
as the latter has, willfully or from lack of ordinary care,
brought the injury upon himself or herself. (Civ. Code Sec.
1714(a).)
Existing law provides that an owner of any estate or any other
interest in real property, whether possessory or nonpossessory,
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 a recreational purpose,
except as provided. (Civ. Code Sec. 846.)
Existing law specifies that an owner who gives permission to
another for entry or use for the above purpose upon the premises
does not thereby (a) extend any assurance that the premises are
safe for such that 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 the person to whom
permission has been granted except as provided in this section.
(Civ. Code Sec. 846.)
Existing law provides that the above provisions do not limit the
liability which otherwise exists (a) for willful or malicious
failure to guard or warn against a dangerous condition, use,
structure or activity; or (b) for injury suffered in any case
where permission to enter for the above purpose was granted for
a consideration other than the consideration, if any, paid to
said landowner by the state, or where consideration has been
received from others for the same purpose; or (c) to any persons
who are expressly invited rather than merely permitted to come
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upon the premises by the landowner. (Civ. Code Sec. 846.)
Existing law defines "recreational purposes" to include such
activities as fishing, hunting, camping, water sports, hiking,
spelunking, sport parachuting, riding, including animal riding,
snowmobiling, and all other types of vehicular riding, rock
collecting, sightseeing, picnicking, nature study, nature
contacting, recreational gardening, gleaning, hang gliding,
winter sports, and viewing or enjoying historical,
archaeological, scenic, natural, or scientific sites. (Civ.
Code Sec. 846.)
This bill would add "other aviation activities" to the list of
activities defined as "recreational purposes."
This bill would make other technical, non-substantive changes.
COMMENT
1. Stated need for the bill
According to the author:
[Section 846 of the Civil Code] provides that an owner of any
estate or interest in real property 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 those
premises to persons entering for a recreational purpose, with
certain exceptions. Existing law defines "recreational
purpose" for purposes of this law to mean certain activities,
including among others, hang gliding. This bill would clarify
the definition of "recreational purpose" to explicitly include
other aviation activities. Note that "recreational purpose"
most likely includes aviation. This bill simply clarifies
that fact.
In support of the bill, one individual, an owner of an
agricultural ranch land and recreational pilot, adds that SB
1072 "would potentially open hundreds if not thousands of
private lands, including airstrips for people as well as
aviators to enjoy."
2. Expanding definition of recreational purposes to include
aviation activities
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Existing law generally limits the liability of landowners for
persons who enter their land, free of charge, for recreational
purposes and defines recreational purposes to include "such
activities as fishing, hunting, camping, water sports, hiking,
spelunking, sport parachuting, riding, including animal riding,
snowmobiling, and all other types of vehicular riding, rock
collecting, sightseeing, picnicking, nature study, nature
contacting, recreational gardening, gleaning, hang gliding,
winter sports, and viewing or enjoying historical,
archaeological, scenic, natural, or scientific sites." (Civ.
Code Sec. 846.) This bill seeks to add "or other aviation
activities" to that list, thereby limiting the liability of
landowners for injuries occurring as a result of those aviation
activities as well.
According to the author, there is "anecdotal evidence that
airstrip owners deny access to recreational pilots because of
[their] fear of liability. This has been substantiated by
surveys made by the Recreational Aviation Foundation (RAF) in
numerous other states. By identifying and recognizing this
problem, 21 states have added 'aviation activities' to their
[recreational use statutes] in order to reduce liability
concerns and [provide] legal clarification for airstrip owners."
The author argues that this bill "clarifies the recreational
aviation activities are included as landowner protections" and,
more specifically, that the bill clarifies airstrip landowners'
liability.
a. "Recreational purpose" interpreted broadly by the
courts
Under existing case law, there is a plausible argument that
the list of activities provided in Section 846's definition of
"recreational purpose" is not exhaustive and could be read to
include at least some other aviation activities, particularly
in light of the inclusion of the other activities specifically
listed in the existing statute.
In Valladares v. Stone (1990), a question arose as to whether
tree climbing comes within the scope of the statute. "By
stating that a recreational purpose 'includes such activities
as' those listed therein," the court wrote, "the statute
clearly indicates that the list is merely illustrative of the
activities which constitute a recreational purpose within the
meaning of the section. Under the 'usual, ordinary import' of
the plain meaning of section 846, other recreational uses
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similar to those listed fall within the purview of the
statute." (218 Cal.App.3d 362, 369). Accordingly, the court
determined that tree climbing is such a recreational use,
adding that "[c]ertainly, it is a form of 'nature contacting'
contemplated by the statute." (Id.)
Similarly, with respect to this bill, one could argue that
aviation activities are sufficiently similar to sport
parachuting and hang gliding (currently included in the
definition) so as to fall within the existing statute. That
being said, it does not appear that any court has directly
addressed the question of whether any or all other aviation
activities are covered under the current statute. As
suggested by the proponents of this bill, it appears that in
the absence of statutory language clearly indicating that
these activities are encompassed within the meaning of
"recreational purpose," landowners are hesitant to open their
lands, and specifically their airstrips, to the public for
aviation activities. The Aircraft Owners and Pilots
Association echoes this sentiment, writing while the existing
statute lists specific recreational uses that are covered by
the statute, including hang gliding and sport parachuting, "it
is not clear if general aviation activities are covered, thus
causing some airstrip owners to deny access to general
aviation aircraft out of fear of liability."
As a matter of public policy, the Legislature has demonstrated
considerable support for promoting the open and free use of
private lands for recreational activities. Consistent with
that policy, this bill seeks to encourage landowners to open
their lands free of charge for recreational aviation
activities.
b. Concern that the bill's language is unnecessarily broad
to achieve its purpose
Although the list of activities defined as recreational
purposes is nonexclusive, and there is an argument that
certain aviation activities may already fall under the
statute, it is important that the addition of those activities
is narrowly tailored to address the problem faced by pilots,
as identified by the author. Failure to precisely define the
activities deemed to be a recreational purpose could result in
a broad immunity for activities that are not, in fact, truly
recreational.
Staff notes that both the central purpose of the bill, and of
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the larger national movement by the sponsor of this bill, is
to encourage landowners to open their private airstrips to the
public for recreational use by private pilots. The bill,
however, is drafted to include "other aviation activities"
more generally, which would include not only the personal
recreational activities of private pilots, but also could
include other activities that are not purely recreational in
nature. With respect to aircraft alone, the term aviation
activity could include not only personal recreation, but also
commercial flights where the passengers could be prohibited
from seeking relief for injuries suffered as a result of
defects on an airstrip. These commercial activities would not
necessarily result in consideration being given to the
landowner-one of the three limits set on any limitation of
liability for landowners. (See Comment 3 for more on these
limitations more generally.)
For example, it is possible to envision a charter company
being paid to take a party sightseeing, to picnic on nearby
properties, or to go on a business-related excursion. While
potentially recreational for the parties paying for this
service, such an activity would be clearly commercial for the
pilot and aircraft operator. Nonetheless, as long as the
landowner has not received consideration and has not expressly
invited the party onto his for business or perhaps his own
social purposes, this activity could be characterized as
"recreational" despite its commercial characteristics. The
question then becomes whether, as a matter of law, the
Legislature ought to instead encourage, as opposed to
discourage, landowners from taking reasonable precautionary
measures to warn or guard against potentially dangerous
conditions when they know their lands are frequently used for
such potentially dangerous activities.
In support of the bill, one owner of a privately owned
airport, Agua Dulce Airport (L70), points out that "[a]viation
activities pose no more risk to the participant than some of
the other recreational activities enumerated in Civil Code
Section 846. The Federal Aviation Administration must certify
all pilots. Additionally, every two years, a pilot must
complete a Flight Review to ensure the pilot maintains
competency. Throughout a pilot's training while seeking a
pilot certificate from the FAA, risk management is emphasized.
Pilots are trained to assess the risk involved in their
flying activities and to reduce that risk to an absolute
minimum."
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Again, however, the issue here is that while the activity
itself can be conducted with utmost safety by the pilots, a
potential harm could arise out of the negligent failure of a
landowner to warn of or protect against hazards on the ground.
In other words, the pilot could do everything "by the book"
and with utmost care, but an unknown condition on the ground
could cause great harm not only to the pilot, but also to his
or her passengers.
c. Suggested amendment to narrow the bill, yet still
achieve the same purpose
As noted above, this bill is part of a larger national
movement to add certain aviation activities to recreational
use statutes. Insofar as other states have already begun
adding aviation activities to their recreational use statutes,
staff notes that the language used can vary in some important
ways. For example, some states have added the term "aviation
activities" (e.g. South Dakota) to their relevant definitions,
while others have added "noncommercial aviation activities"
(e.g. Kansas) or "private, noncommercial flying" (e.g.
Massachusetts).
In order to narrow the bill in light of concerns discussed in
Comment 2b above, the author offers the following amendment to
limit the bill to "private noncommercial aviation activities"
along the lines of language used by several other states. By
using more precise language tailored to the issue presented,
the amendment could avoid the unintended consequence discussed
above. At the same time, the resulting language would appear
to accomplish the overall objective to encourage landowners to
open their land to private pilots who wish to fly and land,
free of charge, onto the landowner's property.
Author's amendment :
On page 2, lines 8-9 strike "other aviation activities" and
insert "private noncommercial aviation activities"
3. Willful or malicious conduct
California's recreational use statute, Section 846 of the Civil
Code, removes a general duty for landlords to act as a
reasonable person in view of the probability of injuries to
foreseeable others. In doing so, it provides immunity for
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landlords from ordinary negligence. (See Background.) At the
same time, however, the statute does not limit the liability
which otherwise exists (a) for willful or malicious failure to
guard or warn against a dangerous condition, use, structure or
activity; or (b) for injury suffered in any case where
permission to enter for the above purpose was granted for a
consideration other than the consideration, if any, paid to said
landowner by the state, or where consideration has been received
from others for the same purpose; or (c) to any persons who are
expressly invited rather than merely permitted to come upon the
premises by the landowner. (Civ. Code Sec. 846.)
In New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d
681, the Court of Appeal affirmed the judgment of the trial
court that held the defendant liable under the willful
misconduct exception of Section 846 where the plaintiff
motorcyclists were injured when they rode their bikes over a
cliff on defendant property owner's gravel quarry due to
inadequate precautions to warn of the danger posed by the cliff
at the end of the abandoned road. In describing the standard,
the court explained:
The concept of willful misconduct has a well-established,
well-defined meaning in California law. "Willful or wanton
misconduct is intentional wrongful conduct, done either with a
knowledge that serious injury to another will probably result,
or with a wanton and reckless disregard of the possible
results. . . . ."
. . . "The usual meaning assigned to 'wilful,' 'wanton' or
'reckless,' according to taste as to the word used, is that
the actor has intentionally done an act of an unreasonable
character in disregard of a risk known to him or so obvious
that he must be taken to have been aware of it, and so great
as to make it highly probable that harm would follow.'"
"Three essential elements must be present to raise a negligent
act to the level of wilful misconduct: (1) actual or
constructive knowledge of the peril to be apprehended, (2)
actual or constructive knowledge that injury is a probable, as
opposed to a possible, result of the danger, and (3) conscious
failure to act to avoid the peril." (171 Cal.App.3d,
689-690, internal citations omitted.)
In the context of this bill, the existing liability for willful
or malicious conduct would continue to apply to landowners
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granting permission to pilots to enter their property. If, for
example, a pilot were to call in advance and seek clearance from
a private airport operator and the landowner actually knows of
or should know of a dangerous condition, use, structure or
activity on his land, the landowner would have to take steps to
avoid that peril and conscious failure to do so would result in
liability. Similarly, if the landowner knows pilots frequently
land in the airstrip located on his land without calls in
advance, he or she would have to somehow warn or guard against
hazards that would likely lead to injury to those persons.
Moreover, to the extent that a landowner must meet certain
standards set by federal or state law or regulations with
respect to owning or holding open for use an airstrip or private
airport, this bill does not in any way alter the duty of
landlords to meet those standards. Indeed, the author confirms
that "SB 1072 would not modify a landowner's obligation to
comply with any state or federal regulations or statutes as to
how they maintain [or] construct airstrips."
Support : Aqua Dulce Airport; Aircraft Owners and Pilots
Association; Association of California Airports; one individual
Opposition : None Known
HISTORY
Source : The Recreational Aviation Foundation
Related Pending Legislation : None Known
Prior Legislation : AB 3177 (Bradley, Ch. 129, Stats. 1988) See
Background.
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