HAPPY TRAILS TO YOU
It’s easy enough to imagine the liability headaches that a political subdivision might face in operating parks. There are so many ways to get into trouble in a park: There are ponds to drown in, gopher holes to step in, cliffs to fall over, and the occasional falling tree.
Most states have recreational use statutes that limit public and private liability for the noncommercial use of land in its natural state. Before one can sue a sovereign – not just a king, but the federal government, state government or a political subdivision, permission to do so (these days, in the form of federal and state tort claims acts) must give permission to sue.
In California, for instance, an injured park user must show that a dangerous condition of public property existed. This is not your average gopher hole: instead Government Code § 830(a) says it “means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” To win money from the State of California, which (despite the legislature’s best efforts, still has some left), one must show 1) a dangerous condition of public property; (2) a foreseeable risk arising from the dangerous condition of the kind of injury the victim suffered; (3) either negligence on the part of a public employee in creating the danger or failure by the political subdivision to correct it after notice of its existence and dangerousness; (4) a causal relationship between the dangerous condition and the victim’s injuries; and (5) actual injury suffered by the victim.
That’s a pretty tall order for a victim to fill. And if that were not enough, the State has granted itself “trail immunity.” Section 831.4 of the Government Code holds that a political subdivision “is not liable for an injury caused by a condition of… [a]ny unpaved road which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas… [and] any trail used for the above purposes.”
You may see where this is headed. A 10-foot-long eucalyptus branch split off from a tree in July 2013 and fell on Lorin Toeppe while she was walking with her boyfriend. Lorin, a physical therapist, suffered a crushed leg, fractured spine and lacerations to her face.
She sued the City, alleging its workers negligently maintained eucalyptus tree that dropped its branch on her. The City countered that she was walking on a park trail when it happened, so the City had “trail immunity.”
Lorin appealed, and – even in the face of dire predictions that parks would close – the court held that things were not quite as cut and dried as the City argued they were.
Toeppe v. City of San Diego, 13 Cal. App. 5th 921, 220 Cal. Rptr. 3d 608 (Ct.App. 4th Dist. 2017). While Lorin Toeppe was walking through Mission Bay Park with her boyfriend, a branch fell off a eucalyptus tree and struck her. She was badly hurt.
Lorin sued, claiming the tree constituted a dangerous condition of public property under Gov. Code 830(a). The City moved for summary judgment, arguing it was immune from liability under Gov. Code § 831.4, because Lorin was on a trail when she was injured. The trial court agreed, holding “[t]he evidence shows the injuries to Toeppe were caused when she was walking on the trail. Although it is disputed whether she was actually on the physical paved trail or just off of it, Toeppe’s contention is that the trail immunity does not apply to the other condition (failure to adequately maintain a tree next to the trail). Even if… the tree’s condition was a dangerous condition – and… substantially contributed to the accident, it does not create liability to fulfill its purpose, the immunity should apply to the tree (and its condition) because of the location of the tree to the trail.”
Held: The City’s tree maintenance is not immune from negligence claims just because the trees are near a trail.
Lorin argued that between 2004 and 2013, a City employee negligently trimmed the eucalyptus tree. She claimed the City created and was aware of a dangerous condition of the tree, and as such, the City is liable for the harm caused by the falling branch.
The Court noted that trail immunity “is afforded ‘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.
Lorin argued that trail immunity applied to the condition of the trail, not the fact that she may have been on the trail. She claimed that the negligently maintained eucalyptus tree was the dangerous condition giving rise to the City’s liability and her damages, not the trail. The City countered that Lorin was on the trail when she was struck by the branch, and the dangerous condition at issue here was thus connected to the trail.
In short, the Court said, “this is not a case about trails. It is about trees. Trees that were planted and maintained by the City. Trees that were not naturally occurring in Mission Bay Park. This is not a case where Toeppe was injured walking on a City trail in a naturally occurring forest. This is not a case where Toeppe had to walk on a trail to reach a dangerous condition or a dangerous condition was part of the design of the trail. Instead, Toeppe was injured when a tree branch struck her. She maintains the branch fell on her because the City was negligent in maintaining the eucalyptus trees in the park. There are no allegations that she was harmed based on a condition of the trail. There are no allegations that she was injured because of the location or design of the trail. On the record before us, we find no basis on which to apply trail immunity.”
The Court was not persuaded by the City’s argument that finding trail immunity does not apply here could result in the closing of City parks in which trees exist. “Although it might be prudent for the City to evaluate its maintenance of trees in its parks,” the Court said, “we do not foresee several park closures based on this opinion. Here, we merely conclude trail immunity is not applicable based on Toeppe’s allegations and the evidence submitted in support of and in opposition to the City’s motion for summary judgment. This case does not establish that the City is liable for Toeppe’s injuries.”