A welcome change of course

The doctrine of trail immunity in the wake of Garcia v. American Golf Corporation and Toeppe v. City of San Diego

2017 December

A potential client comes into your office with a significant injury. She explains she was hurt when, apparently due to municipal negligence, a large rock broke free from a graded hillside she was standing next to, and struck her. All sounds good, and you’re preparing to sign her up. But then, with your retainer agreement in hand, she mentions in passing that the reason she had been standing next to the graded hillside was because it was adjacent to a trail she had been on at a local park.

Until very recently, this small bit of information would have significantly altered the way in which you looked at the viability of your new client’s claims. Because she was on a trail at the time she was injured, you would have justifiably believed that the issue of trail immunity would undoubtedly become the existential issue for her claims, and that there was a very good chance her claims would not survive.

However, over the last twelve months, Courts have begun to significantly reformulate their interpretation of the trail immunity doctrine outlined in Government Code section 831.4. We may have started the year with a doctrine that seemed to be a steadily growing immunity blob, embracing an ever-expanding range of hazards, so long as a trail was somewhere in sight. But now, in the wake of two very recent decisions, trail immunity has been proverbially forced back onto the path. As a consequence of Garcia v. American Golf Corporation (2017) 11 Cal.App.5th 532 from the Second District and Toeppe v. City of San Diego (2017) 13 Cal.App.5th 921 from the Fourth District, cases that may have appeared headed for an untimely demise at the hands of trail immunity, may now merit more than a second look.

The trail immunity doctrine, which, provides immunity to public and certain private entities for injuries caused by “a condition of” any “trail” providing access to recreational or scenic areas, has two components. First, as its name contemplates, trail immunity only applies where the roadway or pathway involved in the injury is actually a “trail.” Second, even where a pathway is determined to be a trail, immunity only attaches if the injury causing hazard was a “condition” of the trail. (Gov. Code, § 831.4) It is with respect to this second part that Garcia and Toeppe make the most significant changes.

Before Garcia and Toeppe, the concept of a trail “condition” had been given such an absurdly expansive definition and, as such, the fight over whether a roadway or pathway could be characterized as a trail was really the only line of defense available to trial counsel to prevent trail immunity from destroying their cases. In this context, once a roadway or pathway was determined to be a “trail,” it was effectively a death sentence to the case (one decision, summarized below, went so far as to extend immunity to encompass an entire golf course).

Now, following Garcia and Toeppe, this is no longer the case and a new layer of public policy considerations forces hazardous conditions to bear a causal relationship to the trails with which they are associated.

Interestingly, both the Garcia and Toeppe decisions downplay their own significance, likely a result of both Courts’ desire to have these cases fit within the arc of prior precedent, as opposed to breaking ties with that line of cases. To this end, both Garcia and Toeppe make painstaking efforts to reconcile prior decisions with their respective holdings. Nevertheless, both decisions, in dramatically similar fashion, significantly alter what had up to then been an unrelenting expansion of trail immunity.

A brief history of trail immunity and the integral-feature test

For good or ill, with respect to hazards that are actually located on a trail, immunity has been applied generally as would be expected. For example, trail immunity has been applied where a steep trail that was “extremely rough and in poor condition with deep gullies” with protruding rocks, caused the plaintiff’s off-highway vehicle to crash (Astenius v. State (2005) 126 Cal.App.4th 472); or where a crack in a bicycle path caused the plaintiff to fall while rollerblading (Carroll v. County of Los Angeles (1997) 60 Cal.App.4th 606); or where large piles of dirt actually on the trail caused the plaintiff to crash his motorcycle (Giannuzzi v. State of California (1993) 17 Cal.App.4th 462).

Though section 831.4’s language is not exactly a paragon of clarity, nothing in its provisions would appear to support the notion that a “condition” of a trail could include something entirely unconnected to that trail. But in confronting such off-trail hazards, Courts of Appeal have not shied away from defining “condition” broadly to support an expansive application of trail immunity. The justification routinely cited for this by courts is section 831.4’s legislative intent. Accordingly, the Legislature created trail immunity “to encourage public entities to open their property for public recreational use, because ‘the burden and expense of putting such property in a safe condition and the expense of defending claims for injuries would probably cause many public entities to close such areas to public use.’ [citation].” (Armenio v. County of San Mateo (1994) 28 Cal.App.4th 413, 417.)

Enthusiastically embracing the Legislature’s expressed intent, the courts developed an “integral feature” test for determining when a hazard that is not a part of a trail is nevertheless a “condition” of the trail for immunity purposes. First appearing in the 2000 decision Treweek v. City of Napa (2000) 85 Cal.App.4th 221, the First District opined that an off-trail hazard is an integral feature of a trail if it is “part and essential to the full use of the ‘trail,’” such that holding the public entity liable for that off-trail dangerous condition would result in the public entity closing the area for public use. (Id., at pp. 232-233.)

Although the original statement of the integral-feature test was not particularly limited in its scope, this test quickly devolved into nothing more than a spatial/proximity test with a small public policy overlay. In Amberger-Warren v. City of Piedmont (2006) 143 Cal.App.4th 1074, for example, trail immunity was applied to a gully adjacent to a trail because, as the court explained, the trail was what “provided access to” the gully, and location is an integral feature of a trail. (Id., at p. 1085.) Though the court added that if it imposed liability, such trails as the one it was addressing would be shut down, the thrust of the opinion was that the defendant city was immune from liability for an off-trail hazardous gully because a trail led to it.

A year later, the Second District used the integral-feature test to the same effect as the First District, extending the trail immunity doctrine to an off-trail hazard. In Prokop v. City of Los Angeles (2007) 150 Cal.App.4th 1332, trail immunity applied to a chain link fence gate that a biker collided with after exiting a bike path – the bike path was found to be a trail. Despite being off-trail, it was held to be an integral part of the bike path because the gate led to the bike path. (Id. at p. 1342.) Interestingly, the Second District provided no discussion of any public policy considerations to justify this holding, relying exclusively on proximity.

Then, at the start of this year, the integral-feature test saw its most dramatic expansion in the Fourth District, where trail immunity was extended to cover an entire golf course. Wholeheartedly embracing a broadly conceived integral feature analysis, Leyva v. Crockett & Company, Inc. (2017) 7 Cal.App.5th 1105 concluded that trail immunity applied to the injuries sustained by a person struck by a golf ball who was walking on a trail paralleling a golf course. The reason given for this conclusion was that the plaintiff “would not have been struck by the golf ball if he had not been walking on a trail located next to the golf course.” (Leyva, supra, 7 Cal.App.5th at pp. 1110-11.) In other words, if a trail was in the vicinity of a golf course and one could access the course from the trail, the entire golf course was a condition of the trail for trail immunity purposes.

Garcia v. American Golf Corporation (2017) 11 Cal.App.5th 532

The problems with the integral-feature test were presumably laid bare by the holding in Leyva. If the touchstone for applying trail immunity to an off-trail hazard is nothing more than whether the trail provides access to that off-trail hazard, then when is any off-trail hazard not subject to trail immunity? If, for example, a negligently maintained gas pipe running adjacent to a trail explodes, injuring people walking on the trail, does trail immunity apply to the gas pipe because the trail provides access to it? Or, what about a negligently maintained tree just off the trail? Confronted with these issues, the Courts of Appeal began reformulating the integral-feature analysis, seeking to require a much closer connection between the hazard and the trail in order for immunity to arise.

Less than four months after Leyva, the Second District published Garcia v. American Golf Corporation (2017) 11 Cal.App.5th 532, reaching what appeared to be the opposite conclusion from the Fourth District, despite facts that were remarkably hard to distinguish from those in Leyva.

In Garcia, a child was stuck by an errant golf ball while being pushed in a stroller by his mother as they were traveling along a walkway paralleling a golf course. (Garcia, 11 Cal.App.5th at pp. 536-37.) The Second District applied the integral-feature analysis, but, for the first time, incorporated a host of additional public policy considerations to conclude that the doctrine did not apply. (Id., at 543-46.) The Garcia opinion highlighted that the area surrounding the golf course was comprised of more than just the trail, and that even if the trail was eliminated, people would still have access to the golf course. As such, the danger of being struck by an errant golf ball existed for people whether or not they were on the trail. Further, the court explained, the danger posed by the golf course was the result of a human creation, and was a source of revenue, as opposed to a naturally occurring feature. Building on this, the court noted that by imposing liability, the city would be prompted to correct the design of the golf course rather than the design of the trail. In other words, Garcia sought to incorporate a much closer causal link between the hazardous condition and the trail itself.

Addressing Leyva, despite the overwhelming overlaps between the two cases, Garcia attempted to reconcile the two holdings. To this end, Garcia emphasized that the injured plaintiff was only present near the golf course in Leyva because of the trail.

Toeppe v. City of San Diego (2017) 13 Cal.App.5th 921, 929

Two and a half months after Garcia, the Fourth District published Toeppe v. City of San Diego (2017) 13 Cal.App.5th 921, in which it refused to apply trail immunity to an off-trail hazard. The significance of Toeppe is two-fold. First, the Fourth District’s reputation tends towards the conservative and cautious outcome, and Toeppe, which parallels the analysis in Garcia, marks a dramatic pivot from what was a well-established broad construction of trail immunity. Second, Toeppe came just seven months after the Fourth District published Leyva, which, given the contrary holding in Toeppe, makes it appear that the Court may have been retreating from some of the reasoning it employed in Leyva. At a minimum, because both Toeppe and Leyva were issued from the same Court in such a short span of time, it is impossible to read these two decisions independently of each other.

In Toeppe, a woman was seriously injured when she was crushed by a falling branch which had broken free from a eucalyptus tree which was negligently maintained by the City of San Diego. The tree was located in a park near the trail which she was either standing on or next to at the time of the incident. (Toeppe, supra, 13 Cal.App.5th at pp. 923-25.)

As in Garcia, Toeppe also declined to apply trail immunity despite utilizing the integral-feature test. Though Toeppe does not cite to or even mention Garcia, its approach to modifying the integral-feature test to avoiding applying trail immunity closely tracks the Second District’s approach. Indeed, Toeppe emphasized that the trail was not the only way to access the eucalyptus tree, and that there were other ways for visitors of the park to reach the tree and be exposed to the threat of harm. (Toeppe, supra, 13 Cal.App.5th at pp. 927-29.) Second, Toeppe noted that the park was a man-made park, and that the eucalyptus trees were planted when the park was created. Finally, the court observed that imposing liability on the City of San Diego would not require modifying the trail, but, rather, modifying the way in which the eucalyptus trees were maintained.

Also, as with Garcia, the Fourth District strived to avoid outright contradicting its prior holding in Leyva. To this end, Toeppe also noted that in Leyva, the injured plaintiff was only present near the golf course because of the trail. (Toeppe, supra, 13 Cal.App.5th at pp. 929-31.)

The new trail blazed by Garcia and Toeppe

In declining to extend trail immunity to the hazardous off-trail conditions they were reviewing, both Garcia and Toeppe significantly reigned in the broad application which culminated with Leyva. In reviewing a case or preparing a pleading or opposition to a summary judgment motion, Garcia and Toeppe provide a roadmap for how to characterize a hazardous condition connected to a trail to avoid application of trail immunity.

Returning to your new client, issues that should come up in light of Garcia and Toeppe are whether the trail your new client had been on was the only way to reach the graded hillside, or if there were alternative non-trail routes to it. Whether the graded hillside, which is manmade, was a part of a broader revenue-generating undertaking, or if it was a standalone feature. Finally, whether imposing liability on the city will require changes to the trail itself, or just better maintenance and repair of the hillside.

As explained in Toeppe, “this is not a case about trails. It is about trees.” (Toeppe, supra, 13 Cal.App.5th at p. 931.) Following this guidepost, as obvious as it may seem, the path to limiting the applicability of trail immunity to a case is in framing the dangerous condition or hazard at issue as separately and distinctly as possible from any adjoining trail. Backed by Garcia and Toeppe, such a characterization should meet with a lot more success now than would have seemed possible just a few short months ago.