Don’t Trip On the Immunity ‘Trail’

By Molly M. McKibben

Los Angeles County's ambitious plans to create a recreational paradise along parts of the Los Angeles River may lead to a slew of legal pitfalls for outdoor enthusiasts caught in a trap of government immunities.

The LA River, now known to most Angelenos as a concrete basin that accumulates more trash than water, is getting a facelift. The massive construction project would create a continuous bicycle path along all 51 miles of the River by 2020. A portion of this new path opened in the West San Fernando Valley in August 2014.

While the project will provide a long-needed use for the river, it's also possible that poor design or shoddy craftsmanship could result in the construction of hazards to bicyclists and pedestrians using the pathway. However, anyone who is injured by any of those hazards faces serious roadblocks to recovering damages.

Where a private landowner can be sued under general principles of negligence, a government entity can only be sued in specific instances, which are outlined in statutes that the government wrote for itself. For instance, California Government Code Section 835 provides the only grounds on which a plaintiff can sue a government entity for a dangerous condition on public property.

Perhaps your client is badly injured after riding his bike into a hole on the path and you file a lawsuit against the county. You establish that a hole in the middle of a bike path is dangerous. You win, right? Not necessarily. The government has written itself a litany of immunities that prevent it from being held liable even for its design of a hole in the middle of a bike path. In every case a plaintiff brings against them for a dangerous condition of public property, governmental entities will assert any and all of the immunities they can (even ones that don't apply) in order to persuade the court to throw your client's case out.

The most outrageous and least known immunity that governmental entities employ to avoid liability is trail immunity. Government Code Section 831.4 grants complete immunity to a public entity when an injury occurs because of a dangerous condition on any "trail." The plain language of the immunity provides immunity only for "unpaved roads" or "trails." The purpose of the statute was to encourage the government to open undeveloped property to recreational use by the public without burdening the government with the responsibility of improving or maintaining the property in a safe condition.

Yet, in defending lawsuits, governmental entities have severely expanded the breadth of the statute, so that the immunity now applies to anything the government can argue constitutes a "trail," including paved bike trails and beach boardwalks. These facilities are affirmatively designed and actively maintained by government entities for safety, and so allowing them to be liable where they are unsafely designed or maintained seems like a no-brainer. But instead, government entities have convinced courts to expand this immunity to cover almost any trail or pathway, including on-street bike trails.

Because this immunity has been so severely expanded, if a plaintiff is injured on anything the courts have already determined to be a "trail" under the statute, there is little a plaintiff can do to prevent the court from throwing their case out on summary judgment or a motion for directed verdict. The best hope the plaintiff's bar has is to either repeal Section 831.4 or fight to have cases published wherein courts decline to apply the immunity to areas government entities try to argue are a "trail."

Another lesser-known immunity that will likely apply to the new LA River project is what's known as "hazardous recreational activity." Essentially, the statute provides that a government entity generally is not liable to a person who's injured on public property, even if it is dangerous, if the person was participating in a hazardous recreational activity. The statute contains a noninclusive list of activities the Legislature determined automatically qualify as hazardous recreational activities.

Many defendants seek to over-apply this immunity much like trail immunity, and obtain rulings expanding the breadth of this statute. For instance, if your client was riding a mountain bike and wearing spandex biking clothes when he fell into the hole, the government entity will argue that the plaintiff was "mountain bicycling" or "bicycle racing" (two of the listed hazardous activities) and therefore it is not liable. It's vital that plaintiffs fight these arguments and not allow government entities to have cases published where the statute is expanded beyond its plain meaning.

However, unlike trail immunity, this immunity has a number of exceptions - a government entity can still be liable for a dangerous condition that is not reasonably assumed by the participant. For instance, bicycle racers assume the risk that they may crash into another cyclist and be injured; they do not assume the risk that there will be a huge hole in the middle of the path on which they are riding. Other exceptions include where the government entity charges an activity-specific fee for participation, or where an act of gross negligence caused the injury (i.e., designing a four-foot-wide hole in the middle of a pathway).

Probably the best-known immunity a government entity can employ to shield itself against liability for dangerous conditions on its property is design immunity. This statute provides complete immunity for a public entity where an injury occurs because of a dangerous condition that had a plan or design which was approved prior to construction, and the reasonableness of which was supported by substantial evidence.

Once a plaintiff proves there was a dangerous condition on public property, most government entities will automatically assert that they are entitled to design immunity. They will bombard the plaintiff with documents including emails, proposals, and design schematics to support this argument. However, the key to defeating this immunity is to proving that the government entity had no written design for the "injury-producing feature." Thus, in the example above, if the county had a written design for the pathway surface, but not for the hole it built in the middle of the pathway, it would not be entitled to design immunity.

Moreover, many defendants attempt to skirt the requirements of design immunity by arguing that oral construction orders or instructions qualify as a "plan," since it's easy for them to find a government employee to testify that they told someone to construct something. However, there is no California case where a court found that a government entity was entitled to design immunity without a written design for the injury-producing feature.

As government entities undertake to develop recreational areas, it is vital that the public hold them accountable to design and maintain safe spaces, and not allow them to avoid responsibility due to loopholes they have written for themselves.


Molly M. McKibben is an attorney at Greene Broillet & Wheeler LLP. Her trial practice focuses on catastrophic personal injury, wrongful death, municipal liability and products liability.

Originally published in the Los Angeles Daily Journal - Sept. 25, 2014