Do California Landowners Owe a Duty to Keep Invitees Safe?

A unanimous decision by the California Supreme Court answered this question, and in doing so ruled that both the trial court and court of appeal erred in their rulings.

The recent decision in Hoffman v. Young, the Supreme Court recognized that under Civil Code section 846, landowners generally owe no duty of care to keep their property safe for others who may enter or use it for recreational purposes.

There is an exception to that statutory negation of duty, however, when a landowner expressly invites someone onto the property.

The question here is whether that exception applies when the invitation is extended, not by the landowners, but by their live-at-home child who acts without the owners’ knowledge or permission.

The trial court ruled that the exception did not apply because there was no evidence the landowners personally invited the plaintiff to come onto their land.

The Court of Appeal reversed, holding that an invitation by a landowner’s live-at-home child operates to activate the exception unless the child has been prohibited from making the invitation.

Neither court interpreted the statute correctly, and a plaintiff may rely on the exception and impose liability if there is a showing that a landowner, or an agent acting on his or her behalf, extended an express invitation to come onto the property. Plaintiff did not meet that burden below.

Defendants Donald and Christina Young lived with their sons, Gunner and Dillon, on property they owned in Paso Robles. Donald also designed and built a motocross track on the land.

One day in 2014, 18-year-old Gunner invited Mikayla Hoffmann (plaintiff) to go motorcycle riding. The next day, he drove plaintiff and her bike to his parents’ property, unloaded the motorcycle, and provided her with protective riding gear.

He told her to ride on the driveway while he took a warm-up lap on the track. Instead, plaintiff entered the track and rode in the opposite direction from Gunner.

Their bikes collided, and both were injured. Plaintiff lost tissue from one of her fingers. Gunner suffered a broken pelvis and a knee injury.

Plaintiff sued Donald, Christina, Gunner, Dillon, and a business owned by Donald. She asserted claims for (1) negligence, (2) premises liability based on negligent track design, and (3) negligent provision of medical care.

There was no dispute that Gunner invited plaintiff onto his parents’ property. The parties disagreed as to whether the invitation was to ride on the motocross track.

Plaintiff claimed Gunner invited her to ride on the track. Gunner claimed the plan was to retrieve his motorcycle from his parents’ house and to ride in a riverbed off his parents’ property.

As explained below, plaintiff had not shown a landowner extended an express invitation to come onto the property; thus, the Supreme Court did not need to address the scope of any invitation.

After Donald’s company settled, the Youngs were all granted summary adjudication on the negligence and premises liability claims, successfully arguing that those claims were barred by the primary assumption of risk doctrine.

After plaintiff petitioned for a writ of mandamus, the Court of Appeal issued an alternative writ concluding there were triable issues of fact that precluded summary adjudication of those claims as to Donald and Christina.

The trial court reinstated those causes of action against Donald and Christina alone. The provision of medical care claim was allowed to go forward against all remaining defendants.

On the day before trial began, defendants moved to amend their answer to add an affirmative defense of recreational use immunity under section 846. That section provides in relevant part that a landowner owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose.

Plaintiff opposed the motion. With the parties’ agreement, the court deferred ruling.

As the trial progressed, however, questions repeatedly arose as to whether defendants would be permitted to amend their answer and whether the recreational use immunity defense was applicable.

On the fourth day of trial, while plaintiff was still presenting her case, the court revisited the outstanding motion to amend. In opposition, plaintiff argued first that the motion was untimely.

Plaintiff’s counsel asserted that they would have pursued discovery quite a bit differently if plaintiff had known defendants would claim immunity under section exception, which provides that section 846(a) does not limit the liability which otherwise exists for any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.

Plaintiff argued that Gunner’s invitation abrogated any immunity under section 846(a). The trial court again deferred ruling.

On the sixth day of trial, the court and counsel discussed the verdict form. Defendants argued the form should include a question regarding recreational use immunity. Plaintiff repeated her arguments that the motion to amend was untimely and the defense was inapplicable. The court again postponed its ruling.

Two days later, after plaintiff had rested, the court granted defendants’ motion to amend, concluding the express invitee exception of section 846(d)(3) was inapplicable as a matter of law.

It reasoned that neither Donald nor Christina had expressly invited plaintiff onto the property. Instead, it was Gunner, a nonowner, who had invited her. Accordingly, in the court’s view, the general rule of section 846(a) shielded the parents from liability.

At the close of trial, the following facts were undisputed. Donald and Christina had never met or seen plaintiff before the accident, and she had never been on the property before. Neither parent personally invited plaintiff to enter their land. Gunner did not ask his parents’ permission to invite plaintiff to enter and did not tell them that he had done so.

Before jury deliberations, the court entered a directed verdict for Christina on the negligence and premises liability claims because there was no evidence she had any role in the track’s design or maintenance.

The jury returned a verdict for the defense on all claims. The court did not ask the jury for findings on the express invitee exception because it had previously concluded that the exception did not apply.

Plaintiff moved for a new trial, asserting, inter alia, that the trial court erred by: (1) allowing defendants to amend their answer to allege an affirmative defense under section 846(a); (2) excluding certain evidence relevant to the application of the express invitee exception; and (3) ruling that the express invitee exception was inapplicable. The trial court denied the motion.

A divided Court of Appeal reversed and remanded for a new trial on the two claims related to the immunity defense.

The majority held that where, as here, a child of the landowner is living with the landowner on the landowner’s property and the landowner has consented to this living arrangement, the child’s express invitation of a person to come onto the property operates as an express invitation by the landowner within the meaning of section 846, subdivision (d)(3), unless the landowner has prohibited the child from extending the invitation.

Because there was no evidence that Gunner’s parents prohibited him from inviting guests onto the property, the majority concluded that Gunner’s express invitation of plaintiff stripped his parents of the immunity that would otherwise have been provided to them by section 846.

The issue was whether an invitation made by a nonlandowner, without the landowner’s knowledge or express approval, can satisfy the requirements of section 846(d)(3) and abrogate the landowner’s immunity under section 846(a).

This is a question of statutory interpretation.

The court's task is to ascertain the Legislature’s intent and effectuate the enactment’s purpose.

When a statute’s words are clear, their plain meaning controls and we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.

While the words of a statute provide the most reliable indication of the Legislature’s intent, the court does not construe those words in isolation. Instead, it harmonizes the enactment’s various parts by considering the provision at issue in the context of the whole statutory scheme.

The general rule is that a landowner owes certain affirmative duties of care, as to conditions or activities on the land, to persons who come on the land.

Civil Code section 1714 provides that every person is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property.

Under section 1714, landowners owe a duty to exercise ordinary care in managing their property in light of the foreseeability of injury to others.

Section 1714, which has been unchanged since 1872, states a civil law and not a common law principle.

Previously, the liability of a possessor of land for injury to an entrant was generally based on the entrant’s status.

Entrants were divided into three categories: invitees; licensees; and trespassers.

An invitee is a business visitor who is invited or permitted to enter or remain on the land for a purpose directly or indirectly connected with business dealings between them.

A licensee is a person like a social guest who is not an invitee and who is privileged to enter or remain upon land by virtue of the possessor’s consent.

A trespasser is a person who enters or remains upon land of another without a privilege to do so.

The general rule with respect to trespassers and licensees was that they took the premises as they found them insofar as any alleged defective condition thereon may exist, and that the possessor of the land owed them only the duty of refraining from wanton or willful injury.

Invitees also included persons invited to enter or remain on land as a member of the public for a purpose for which the land was held open to the public.  

Thus, a landowner generally owed no duty to a trespasser or licensee to keep the premises in safe condition.

As to business or other invitees, landowners owed a duty to exercise ordinary care to render the premises safe and to protect the invitee from injury.

Over time, various exceptions to these rules developed. Confusion arose surrounding the scope of these exceptions, as well as the definitions of invitee, licensee, and trespasser. The Supreme Court replaced the former concept of liability based on an entrant’s status with the current application of liability based on ordinary principles of negligence under section 1714.

As to trespassers and licensees whom the landowner knew or should have known were on the land, a landowner had a duty to warn of artificial conditions constituting concealed dangers and to exercise reasonable care in carrying on activities.

Section 846, enacted in 1963, creates an exception in favor of landowners as against the liability imposed by section 1714.

Section 846(a) provides: 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.

Section 846(a) absolves California landowners of two separate and distinct duties that might arise under section 1714: (1) the duty to keep the premises safe for recreational users; and (2) the duty to warn such users of hazardous conditions, uses of, structures, or activities on the premises.

Here, the Supreme Court considered only the first of these duties. Plaintiff did not argue that defendants owed her a duty to warn.

The purpose of section 846 is to encourage property owners to allow the general public to recreate free of charge on privately owned property.

Before the statute’s enactment, there had been a growing tendency among California landowners to withdraw land from recreational access because of the potential liability they faced under section 1714.

The Legislature sought to reduce landowners’ potential exposure by removing the specter of tort liability to most recreational users of private property.

The effect of section 846 was to negate the tort, by eliminating certain duties a landowner would otherwise owe to recreational users.

The existence of a duty, of course, is an essential element of tortious negligence.

Section 846 immunity is broad, but it is not absolute.

There are three statutory exceptions to the general rule of nonliability. At issue here is the express invitee exception, which is found in section 846(d)(3). It provides that section 846(a) does not limit the liability which otherwise exists for any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.

In summary, section 1714 imposes a duty to use ordinary skill and care in the management of property in order to prevent foreseeable injury to others. Section 846(a) eliminates an owner’s duty to keep premises safe for entry or use by others for recreational purposes.

However, under section 846(d)(3), if an owner expressly invites someone onto the property and the person is injured while using the land for a recreational purpose, then the general release from liability is abrogated. The question arises whether an express invitation to enter, made by someone other than the landowner, can bring section 846(d)(3)’s exception into play and abrogate the elimination of liability.

An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency.

An agent may be authorized to do any acts which his principal might do, except those to which the latter is bound to give his personal attention.

Moreover, every act which, according to the Civil Code, may be done by or to any person, may be done by or to the agent of such person for that purpose, unless a contrary intention clearly appears.

Nothing in section 846(d)(3) suggests an intent to preclude an agent from extending an invitation on behalf of a landowner. Reading section 846(d)(3) in conjunction with section 2305, there is clear statutory support for the conclusion that an invitation communicated by the landowner’s properly authorized agent can activate the section 846(d)(3) exception.

The heart of agency is expressed in the ancient maxim: “Qui facit per alium facit per se.” [He who acts through another acts by or for himself.]

If the Supreme Court interpreted section 846(d)(3) as only applying to those who receive an express invitation from a landowner personally, an owner could avoid the exception by the expedient of authorizing a third party to invite a person onto his property in order to retain immunity under section 846(a). There is no indication the Legislature intended to create such a loophole.

As noted, the general rule of section 846(a) provides immunity to the landowner.

Section 846(d)(3) sets out an exception. A plaintiff seeking to rely on an exception to a general statutory rule bears the burden of establishing the exception applies.

The Supreme Court imported an agency analysis to determine under what circumstances landowners can authorize a nonlandowner to invite others onto their property with the consequence that they lose the immunity conferred by section 846(a).

Under section 2305, any act that may be done by a person according to the Civil Code may be done by someone the person has made their agent for that purpose. Thus, when a landowner has properly authorized an agent to extend, on his or her behalf, an invitation to enter the land that invitation gives rise to the exception.

Importing an agency-derived analysis here ensures a more formal approach to section 846(d)(3)’s exception than reliance on a newly-created implied agency approach taken by the majority below.

The question presented here is not whether a child can invite friends over. The legal question is whether the circumstances establish that a parent has authorized the child to issue an invitation on the parent’s behalf, such that the child’s invitation strips the landowner of immunity.

No particular words are necessary, nor need there be consideration. All that is required is conduct by each party manifesting acceptance of a relationship whereby one of them is to perform work for the other under the latter’s direction.

That said, an agency cannot be created by the conduct of the agent alone; rather, conduct by the principal is essential to create the agency. 

Common social convention would indicate that parents often permit a child, even a minor of a certain age, to invite social guests onto the family property. However, that convention standing alone would be insufficient to create an agency relationship.

As the case law makes clear, to constitute an agency relationship the authority delegated must be that which permits the agent to act not only for, but in the place of, his principal in dealings with third parties.

As applied to the context of section 846(d)(3), that would mean that an agency relationship can only be created if a landowner delegated the authority to a nonlandowner to invite guests on the landowner’s behalf.

Mere implied permission to invite friends over would not suffice to trigger section 846(d)(3)’s exception. While a child may be allowed to invite friends of their choosing, without more, the invitation is theirs alone.

Further, under the facts in this record, Gunner cannot be said to have acted on his parents' behalf and subject to their control.

His parents did not know plaintiff, nor were they aware of the invitation. The evidence adduced at trial points to Gunner acting on his own behalf and not under the control of his parents.

By allowing a child to invite friends over for social purposes a parent permits those friends to enter their land. But it goes too far to suggest that they, as property owners, expressly extend such an invitation to thus divest themselves of immunity.

Plaintiff seeks the shelter of this exception. Accordingly, she should bear the burden of persuasion on the point, and she failed to do so.

The Court of Appeal’s judgment was reversed, and the matter was remanded to the Court of Appeal for it to address plaintiff’s claim that the trial court erred by denying her motion for a new trial and for further proceedings consistent with this opinion.

LESSONS:

1.         Under Civil Code section 846, landowners generally owe no duty of care to keep their property safe for others who may enter or use it for recreational purposes.

2.         There is an exception to that statutory negation of duty, however, when a landowner expressly invites someone onto the property.

3.         A plaintiff may rely on the exception and impose liability if there is a showing that a landowner, or an agent acting on his or her behalf, extended an express invitation to come onto the property, and the Plaintiff has the burden of proof.

4.         It is particularly appropriate to require a degree of specificity in a landowner’s intentional delegation because an invitation by a properly authorized agent can function to strip a landowner of the immunity the Legislature took care to confer. Nothing the Supreme Court says in the decision, in applying agency principles to section 846(d)(3), should be understood to undermine or run counter to long-settled broad principles relating to the law of agency.