Does a Property Owner Owe a Duty of Care to a Jogger?
In the recent California case of Rucker v. Wincal, LLC, the second district court of appeal ruled that a landowner does not owe a duty of care to a jogger engaged in recreational use of the property.
As part of her training for a half-marathon, plaintiff Shanna Rucker was jogging on property owned by WINCAL LLC (owner) when she encountered a homeless encampment that blocked her path. To avoid the encampment, she ran onto the street’s bicycle lane, where she was struck and injured by a car.
Plaintiff sued owner for negligence and premises liability.
The trial court granted owner’s motion for summary judgment, concluding, among other things, that because plaintiff was engaged in a recreational use of the property within the meaning of Civil Code section 846, subdivision (a), owner did not owe her a duty of care.
The appellate court affirmed. Jogging to train for a foot race is an activity in which one engages for a “recreational purpose” under section 846, and a property owner generally owes no duty of care to those who enter or use its property for such an activity.
At around midnight on November 9, 2016, plaintiff, as part of her preparation for a half-marathon, went for a six-mile jog. Plaintiff’s planned route began and ended at her home and passed through the west side of Winnetka Avenue and onto owner’s property.
Plaintiff was familiar with the area because she had jogged through it three or four months prior to the incident, and also drove through it one week earlier.
As she jogged through owner’s property, plaintiff noticed that her path was blocked by a homeless encampment, which caused her to deviate onto the bicycle lane on the street. She planned to be in the bicycle lane only long enough to pass by the encampment, but was struck by a car and thrown more than 30 feet. She sustained serious injuries.
Plaintiff filed a complaint, naming owner as one of the defendants. In her second cause of action, plaintiff alleged that owner negligently managed, maintained, controlled, and inspected its property.
In her third cause of action, she alleged that owner knew, or should have known, that its premises were in a dangerous, defective, and unsafe condition due to the homeless encampment and failed to take measures necessary to cure those conditions or to warn plaintiff about them. For both causes of action, plaintiff alleged that she was directly and proximately injured by owner’s negligence.
Owner moved for summary judgment, arguing, among other things, that pursuant to section 846, subdivision (a), it did not owe a duty of care to plaintiff, who entered owner’s property for a recreational purpose.
Owner also argued that it did not owe a duty to plaintiff because any danger posed by the homeless encampment was open and obvious.
Plaintiff opposed the motion, contending that section 846, subdivision (a) did not apply to jogging. She noted that jogging is not included in the list of activities for recreational use in section 846, subdivision (b), nor is running.
Citing Gerkin v. Santa Clara Valley Water Dist., plaintiff argued that it must be a question for the jury whether "jogging" on the pathway on owner’s property is considered "hiking" for purposes of section 846.
Plaintiff also argued that even if the open and obvious nature of the danger posed by a homeless encampment negated a duty to warn against the danger, it did not necessarily negate a duty to remedy the danger, which was also a question of fact for the jury.
The trial court conducted a hearing on the summary judgment motion and granted it. The court concluded that owner had met its burden of showing that plaintiff’s jogging was for a recreational purpose. "Hiking" as used within the recreational use statute, does not include merely "walking," but rather to take a long walk for pleasure or exercise.
The Court in Gerkin relied on a Webster’s dictionary to determine the definition of hiking.
Webster’s defines "jog" as to run or ride at a slow trot" or "to go at a slow, leisurely, or monotonous pace." It necessarily follows that plaintiff’s jogging was a leisurely run, which falls within the recreational use statute when that statute is construed broadly.
As such, the burden shifts to plaintiff. Plaintiff did not met her burden.
Plaintiff merely argued that "jogging" is not within the list of recreational activities in section 846, subdivision (b), and it is a question of fact for the jury to determine if plaintiff’s jogging was "hiking" as used within the statute.
This list is non-exhaustive and is to be construed broadly. Jogging is more akin to hiking as it is movement that has a leisurely component to it, unlike merely walking. Accordingly, summary judgment was properly granted on that ground.
The trial court also concluded that the homeless encampment was an open and obvious danger such that owner owed plaintiff no duty to warn about or remedy it.
Section 846, subdivision (a) provides that an owner of real property, with certain exceptions not applicable here, “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.”
Further, subdivision (b) provides that “[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.”
The list of activities set forth in section 846 is not exhaustive; nor indeed would the plain language of the statute support such a claim.
The statutory definition of "recreational purpose" begins with the word "includes," ordinarily a term of enlargement rather than limitation.
Thus, courts have applied section 846 to activities that are not explicitly listed, including horse wagon train for historical simulation, kite flying, and tree climbing. The above activities fall within the definition of a “recreational purpose” because they are “intended to refresh the body or mind by diversion, amusement or play.”
Generally, whether one has entered property for a recreational purpose within the meaning of the statute is a question of fact, to be determined through a consideration of the totality of the facts and circumstances, including the prior use of the land. While the plaintiff’s subjective intent will not be controlling, it is relevant to show purpose.
Where, however, material facts are not in dispute, whether one entered the property for a recreational purpose may be decided as a matter of law in a summary judgment proceeding.
Here, the trial court granted summary judgment based, in part, on its conclusion that owner did not owe plaintiff a duty of care pursuant to section 846 because plaintiff, who was jogging as part of her half-marathon training, entered owner’s property for a recreational purpose.
Plaintiff contended that the trial court wrongly inserted "jogging" into section 846.
To the extent plaintiff suggests that “jogging” is not an activity with a recreational purpose because it is not specifically enumerated in section 846, subdivision (b), her suggestion is plainly without merit, as section 846, subdivision (b) is an illustrative, not exhaustive, list.
Plaintiff also asserts that the trial court erred when it expanded hiking to include jogging because obviously, “hiking” was intended to denote more than just traveling on foot.
The appellate court disagreed with that assertion.
The trial court concluded that jogging was akin to hiking, not that hiking included jogging. Even if the mere act of jogging, a form of movement by foot, were insufficient to demonstrate a “recreational purpose”, it was undisputed here that plaintiff was jogging as part of her training for a half-marathon.
She was not, for instance, jogging because she was late for work, an activity that would not fall within the statutory definition of “recreational purpose.” Rather, she was engaged in an activity for “pleasure or exercise” “intended to refresh the body or mind by diversion, amusement or play”.
Because the undisputed evidence showed that plaintiff entered owner’s property for a recreational purpose, owner met its burden of showing that it owed her no duty of care pursuant to section 846, and plaintiff failed to demonstrate a triable issue of material fact as to her negligence and premises liability claims. The trial court therefore did not err by granting summary judgment in favor of owner.
Because summary judgment was appropriate based on section 846, the appellate court did not address the parties’ arguments concerning whether the homeless encampment was an open and obvious danger such that owner owed plaintiff no duty of care.
LESSONS:
1. If an activity is for a “recreational purpose” under Civil Code section 846, a property owner generally owes no duty of care to those who enter or use its property for such an activity.
2. Be careful about jogging at night.