BILL ANALYSIS �
SB 1072
Page 1
Date of Hearing: June 10, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 1072 (Fuller) - As Amended: April 29, 2014
PROPOSED CONSENT
SENATE VOTE : 35-0
SUBJECT : REAL PROPERTY: DUTY OF CARE: RECREATIONAL PURPOSES:
AVIATION ACTIVITIES
KEY ISSUE : SHOULD LANDOWNERS HAVE THE SAME PROTECTION FROM
LIABILITY ARISING FROM RECREATIONAL AVIATION ACTIVITIES THAT
THEY ALREADY HAVE WITH RESPECT TO OTHER RECREATIONAL ACTIVITIES
ON THEIR LAND?
SYNOPSIS
Under California's recreational use statute, Civil Code Section
846, 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."
In short, Section 846 protects landowners from liability for
possible injuries to persons entering the property for
recreational purposes, and defines "recreational purpose" to
include activities such as fishing, hunting, camping, water
sports, hiking, spelunking, sport parachuting, hang gliding, and
winter sports, among other things. Proponents contend that in
the absence of statutory language clearly indicating that such
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.
This non-controversial bill, sponsored by the Recreational Air
Foundation, seeks to add "private noncommercial aviation
activities" to the non-exhaustive list of recreational purposes
for which protection from liability is granted. The bill would
not, however, alter existing law maintaining landowner liability
for willful or malicious conduct and requiring compliance with
applicable laws regarding operation of an airstrip. Should this
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bill be chaptered into law, California would join 22 other
states that already have laws protecting landowners from
liability specifically for recreational aviation-related
activities. The bill is supported by associations of aircraft
owners, pilots, airstrip owners, and other recreational aviation
enthusiasts. The bill was approved by the Senate without
receiving any "No" votes and has no known opposition.
SUMMARY : Limits the liability of landowners for possible
injuries resulting from aviation-related activities to persons
entering the property for recreational purposes. Specifically,
this bill would add "private noncommercial aviation activities"
to the list of activities defined as "recreational purposes" for
which any person entering real property for such purposes is
owed no duty of care by the property owner to keep the premises
safe for entry, or to give any warning of hazardous conditions,
uses of, structures, or activities on the premises for such
purposes.
EXISTING LAW :
1)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. (Civil Code
Section 1714(a). All further reference are to this code
unless otherwise stated.)
2)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. (Section 846.)
3)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
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or property caused by any act of such the person to whom
permission has been granted except as provided in this
section. (Section 846.)
4)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 upon the premises by the landowner. (Section 846.)
5)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.
(Section 846.)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : This noncontroversial bill, sponsored by the
Recreational Air Foundation (RAF), seeks to add "private
noncommercial aviation activities" to the non-exhaustive list of
recreational purposes for which protection from liability is
granted to landowners under California's recreational use
statute.
Need for the bill. 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 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 further
contends that recreational aviation activities likely already
fall within the meaning of "recreational purpose" under existing
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law (which already specifically covers sport parachuting and
hang gliding, among other things), but that the bill will
nevertheless provide helpful clarification to airstrip owners
and other landowners with respect to their liability and duty of
care under the statute.
RAF, the sponsor of the bill, also states that "Our experience
has shown that once such [clarification] to the statute has been
made, private use airstrip owners are much more willing to allow
public access to their private airfields, and promoting public
access to private lands for recreation is the very purpose of
the recreational use statute. There also is an obvious economic
benefit to a state with such enhanced activity."
Background on liability under the recreational use statute.
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. (Section 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
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. In
1968, however, 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.)
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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
parachuting to snowmobiling, and was last amended in 1988 to
include hang gliding. (AB 3177, Ch. 129, Stats. 1988.)
This bill amends the recreational use statute to provide
liability protection for aviation activities that are private
and noncommercial. This bill seeks to add "private
noncommercial aviation activities" to the non-exhaustive list of
recreational purposes for which protection from liability is
granted. Proponents contend that in the absence of statutory
language clearly indicating that such 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. They note that while
activities like hang gliding and sport parachuting are
specifically named in the statute, "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 previously
demonstrated 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.
Should this bill become law, California would join 22 other
states that already have laws protecting landowners from
liability specifically for recreational aviation-related
activities. The bill was amended in the Senate Judiciary
Committee to clarify that only private noncommercial aviation
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activities are deemed to be for a recreational purpose, a
principle that appropriately focuses the objective of the bill
and that is reflected in other states as well. (See, e.g.,
Wisconsin Statutes � 895.52, defining "recreational aviation" to
mean "the use of an aircraft, other than to provide
transportation to persons or property for compensation or hire,
upon privately owned land.")
This bill preserves liability for willful or malicious conduct
and for complying with applicable laws regarding operation of an
airstrip. It is important to note that this bill does not alter
those provisions of Section 846 that maintain liability for (a)
willful or malicious failure to guard or warn against a
dangerous condition, use, structure or activity; or (b) 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. Under this bill, existing liability for willful or
malicious conduct would continue to apply to landowners granting
permission to pilots and others to enter their property.
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
landowners to meet those standards. According to the author,
the bill is not intended to "modify a landowner's obligation to
comply with any state or federal regulations or statutes as to
how they maintain [or] construct airstrips."
ARGUMENTS IN SUPPORT : The Experimental Aircraft Association
(EAA), representing over 15,000 people in California, including
pilots, aircraft owners, and recreational aviation enthusiasts,
strongly supports this bill. EAA states:
EAA has heard from several land owners who are motivated
and willing to allow the public to use their land for
recreational aviation purposes, but are reluctant to do
so because of liability concerns. These individuals
would open their private landing strips for the
enjoyment of the California aviation community,
providing pilots with new places to explore and
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convenient access points for towns not served by public
airports, and would gladly do so with the protections
enumerated in SB 1072. Many of the individuals with whom
we spoke were not worried about losing a potential
lawsuit arising from another's mishaps while using their
land; they are primarily concerned with having to pay
significant sums to defend themselves from such suits,
and are unwilling to welcome the public until the threat
of those lawsuits is dissipated.
The addition of recreational aviation is consistent with
the activities currently named in the recreational use
statute, all of which involve risks managed by the
participants and are undertaken purely for personal
enjoyment. EAA believes that people should be allowed to
accept responsibility for themselves while engaging in
outdoor activities for which they are passionate, and we
believe that the land owners generous enough to permit
those people to exercise their passions on their land
should not be held potentially liable for their
generosity. Ultimately, EAA believes that small,
private airstrips and the communities that have always
formed around them are a great wellspring of grassroots
aviation, and we believe that these airstrips should
have the protection of law that will allow them to
thrive.
REGISTERED SUPPORT / OPPOSITION :
Support
Recreational Air Foundation (sponsor)
Aqua Dulce Airport
Aircraft Owners and Pilots Association
Association of California Airports
Experimental Aircraft Association
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334
SB 1072
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