In Altizer v. Coachella Valley Conservation Commission, published August 21, 2023, the Fourth District Court of Appeal, Division 2 affirmed summary judgment for the defendant commission. The commission, a public entity, owns a 160-acre piece of unoccupied desert land, consisting of several parcels between residential areas. Public paved streets run north-south of the property. There are two east-west unpaved trails on the property. The commission decided to fence off the perimeter of the property, using a fence consisting of 5/16" metal cable suspended 3.5 feet in the air and supported by posts every 15 feet. Gates were installed. The plaintiff was riding on one of the roads along the side of the property when he turned onto one of the off-road paths on the property. After traveling about a quarter mile at 20-25 mph, the plaintiff approached the cable fence. He did not see it until he was 10-15 feet away. He braked but could not stop before hitting the cable. He sustained serious injuries. The commission moved for summary judgment, on the grounds that the fence was not a dangerous condition, and that even if it was, the commission was entitled to design immunity and hazardous recreational immunity. The trial court granted the motion on the ground of design immunity.
The appellate court affirmed summary judgment on the ground that Government Code section 831.7's hazardous recreational activity immunity applied. The statute provides that a public entity is not liable to any person who participates in a hazardous recreational activity for any damage or injury to property or persons arising out of that hazardous recreational activity. The statute defines "hazardous recreational activities" in several ways. Subdivision (b) initially defines it to mean " a recreational activity conducted on property of a public entity that creates a substantial, as distinguished from a minor, trivial, or insignificant, risk of injury to a participant or a spectator." But subdivisions (b)(1)-(3) also define as hazardous recreational activities a non-exclusive list of activities, including "off-road motorcycling . . . of any kind." The plaintiff contended there was a triable issue of fact on whether he was engaged in a recreational activity, because he was traveling across the commission's property to avoid traffic rather than for recreation. But subdivision (b)(3), which includes off-road motorcycling, focuses on the activity, not the purpose. The plaintiff was off-road motorcycling, and so was engaged in a hazardous recreational activity. The plaintiff argued that subdivision (c)(1)(A)'s "failure to warn" exception applied. Under this exception, the immunity does not apply where the injury is caused by "[f]ailure of the public entity or employee to guard or warn of a known dangerous condition or of another hazardous recreational activity known to the public entity or employee that is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the damage or injury arose." Here, common experience suggests that the plaintiff reasonably assumed the risk of colliding with natural and unnatural objects when he rode off-road through unpaved, unoccupied desert property, including fences of varying materials and sizes that demarcate property lines. The commission had no duty to warn of the inherent risk of running into a cable fence.
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