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Defective Conditions on Private Property

Private Property and Negligence

When a motorcyclist is injured in a motorcycle accident multiple sources of recovery are pursued. You obviously look for recovery from the other driver, if the other driver was the cause of the accident. In the context of a solo vehicle collision, you would look to the owner of the property, if the accident was caused by some defective condition on the property.

Today we will look at what occurs when there are defective conditions on private property, as opposed to public property that the government oversees. Private property in California is governed by the Recreational Land-Use Statute, specifically California Civil Code § 846:

  1. " 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 those premises to persons entering for a recreational purpose, except as provided in this section. A "recreational purpose," as used in this section, includes activities such 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, private noncommercial aviation activities, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.

An owner of any estate or any other interest in real property, whether possessory or nonpossessory, 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 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 the person to whom permission has been granted except as provided in this section.

This section 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.

Nothing in this section creates a duty of care or ground of liability for injury to person or property. "

The recreational land-use statutes purpose is to freely encourage landowners to permit recreational activities on their land and in return, Cal. Civil Code § 846 prevents a landowner from being sued for ordinary negligence. To get around California Civil Code § 846, it must be shown that the owner of the property acted willfully or maliciously in failing to warn or guard against some dangerous condition. That is the current law in California.  So, if you are a motorcyclist who was injured while taking your bike off-road, be prepared to deal with California Civil Code § 846.

Keep in mind this statute only applies to private land. So, if you are riding your motorcycle off road, on private land, hit a log in the road, suffer an injury, and bring a suit against the owner, more than ordinary negligence is going to need to be shown.  Take that same factual scenario, and instead of private property off road, insert a public road, and the entire analysis changes. Ordinary negligence would be the standard on public land, which is a much easier burden to meet than the willful or malicious burden California Civil Code § 846 requires.


California Civil Code § 846

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