In Nealy v. County of Orange, ordered published September 14, 2020, the Fourth District Court of Appeal, Division 3 affirmed the trial court's dismissal, based on demurrer, of a dangerous condition lawsuit. A county park included a loop trail used for hiking and bicycling. In the past, a wooden lodgepole fence ran perpendicularly across the trial, serving as an entrance and exit for the trial and creating a physical barrier bicyclists had to maneuver around when riding north or south on the trail. The plaintiff knew of the fence's existence and had ridden around it. The fence was replaced by new fencing, consisting of wooden pylons between which were strung gray colored wired cables. The fencing also ran parallel to the trail. The plaintiff noticed the old fencing was removed, and mistakenly believed he could ride between the fenceposts of the new fence across the trail. He rode into the wire cables, and was injured. He sued the county for maintaining a dangerous condition of public property. The county demurred on the ground of Government Code section 831.4's trail immunity. The court sustained the demurrer with leave to amend. The plaintiff filed a first amended complaint that changed the description of the fence, and attacked the design of the fencing. The court sustained a demurrer to the amended complaint without leave to amend.
The appellate court ruled that under the sham pleading rule, the plaintiff could not change the description of the fencing set forth in his claim for damages or original complaint, and could not allege facts contrary to the photos he attached to his pleadings as exhibits. The plaintiff did not contest that the trail was a trail used for recreation. Government Code section 831.4's trail immunity therefore applied. The fence was part of the trail, as established by past case law holding that features such as gateways to recreational trails were part of the trail for purposes of the immunity. The plaintiff's arguments that the fencing was dangerous did not avoid the immunity, since the statute is an immunity to dangerous condition liability. The plaintiff's contention that the design of the fence was not approved was immaterial, since the immunity at issue was not design immunity. His contention that the county failed to warn of the cables was immaterial; the immunity is absolute, and is not dependent on warnings. Since the plaintiff was riding his bike for recreation on a recreational trail, the fencing was a part and condition of the trail, and that condition injured him, the immunity applied. There was no reasonable possibility of further amendment.
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