Application of Trail Immunity to Paved Walkways Within City Parks

Fortin Law Group

Published: May 4, 2018

Of all the immunities afforded by the Government Tort Claims Act, it is the recreational trail immunity provided in Government Code §831.4, that reigns supreme. Since its adoption into the Government Code in 1963, courts have liberally expanded its application in line with the well-articulated legislative intent. "The plainly stated purpose of immunity for recreational activities on public land is 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." (Legislative Committee Comment to §§831.2, 831.4 [emphasis added]. ) (Id. at 417.)

The Court in Hartt v. County of Los Angeles (2011) 197 Cal.App.4th 1391 articulated this principal as it practically applies to personal injury litigation. Hartt involved "dual or mixed use" roadway which, in addition to its function in providing access to recreational areas joining upper and lower sections of a county park, allowed for use by county maintenance vehicles. The Court affirmed the broad scope of the immunity concluding that the "dual or mixed use" of the roadway did not preclude application of §831.4, stating that the legislature established immunity for "any trail" "used for" recreational purposes. In so holding, the Court recognized the reality driving the legislative comment that "[...] it is cheaper to build fences and keep the public out than to litigate and pay three, four, five or more judgements each year in perpetuity. But, that would deprive the public of access to recreational opportunities. If public entities cannot rely on the immunity for recreational trails, they will close down existing trails and perhaps entire parks where those trails can be found." (Hartt, supra at 1400.)

Trail Immunity Defined

Government Code §831.4, provides in relevant part, "A public entity[...]is not liable for an injury caused by a condition of: (a) Any unpaved road which provides access to[...] recreational or scenic areas and which is not a (1) city street or highway [...] (b) Any trail used for the above purposes [...]." Through judicial interpretation, trail immunity has been widely expanded to include: paved and unpaved trails (Carroll v. County of Los Angeles (1998) 60 Cal.App.4th 606; Armenio v. County of San Mateo (1994) 28 Cal.App.4th 413, 417); dual and mixed use trails (Hartt, supra); and paths or trails which could otherwise be characterized as a "sidewalk" (Amberger-Warren v. City of Piedmont (2006) 143 Cal.App.4th 1074). This list, which is by no means exhaustive, represents the broad interpretation conferred upon trail immunity which has practically resulted in an absolute statutory immunity to public entities for claims of liability for injuries sustained by users of paved or unpaved recreational trails and paths


Yes! Even those paths which could otherwise be characterized as a sidewalk may be protected by the trail immunity where they are used for a recreational purpose and/or provide access to a recreational area or facilities. In Amberger, supra, the Court was asked to consider whether trail immunity could be applied to a paved, sidewalk-like path running through a city dog park providing access to an "off-leash" portion of the park. In order to determine if a path is "cloaked with immunity" under section 831.4, the Court introduced a novel three-prong approach. The considerations include: 1) whether it fits within the accepted definition of the property; 2) whether its design and use is for a recreational purpose; and 3) whether it fulfills the purpose of the statute. Ultimately, the Court concluded that, despite the Plaintiff's "sidewalk" label, the path fit within the definition of a trail as set forth in interpreting case law. The first prong was easily satisfied as the path was a paved walkway through the park and, under Carroll, a path is the equivalent of a trail. In looking at the second prong, it was established that the design and use of the pathway was access to a recreational space, namely various parts of the dog park. Finally, under the third prong, the Court found that application of immunity harmonized with the legislative intent in that the city may have been inclined to limit access to the dog park in the event it would be subject to liability for such accidents.

A "sidewalk," the Court provided is typically defined as a walkway for pedestrians that is "next to, or part of, a street or highway." (Amberger, supra at 1080-81.) Accordingly, paved walkways within public parks are distinguishable from a traditional city sidewalk. Because the colloquial definition of the words "trail, walkway, path or sidewalk" have "overlapping, not mutually-exclusive meanings," Plaintiff's argument that a sidewalk cannot ever be defined as a trail was described by the Court as "unworkable." (Amberger, supra at 1081-82.)

Success in Application

Fortin Law Group, in defense of its client City, was confronted with a claim for significant personal injuries, amounting to more than $55,000 in medical specials, under circumstances similar to those in Amberger. The Plaintiff had tripped and fallen on a walkway, which traversed the City's Greenbelt Park, this walkway provided access to the recreational facilities within the park including a number of baseball fields, snack stands and restrooms. The Complaint alleged that a height differential of approximately two inches between the concrete slabs of the walkway constituted a dangerous condition of public property. This set of facts gave Fortin Law Group the opportunity to combine these concepts into a unique argument which successfully resolved this matter on behalf of the City.

In its Motion for Summary Judgment on behalf of the City, Fortin Law Group raised the unique and novel argument to support its contention that the walkway or sidewalk running through the public park constituted a "trail" under the Code by differentiating the subject walkway from a traditional city sidewalk. Applying the three-part test articulated in Amberger, the moving papers established that the location of the injury fit within the accepted definition of the property, namely a "marked or established path or route" within the designated park property. (Amberger, supra,1078-1079, citing Carroll, supra, 609.) As to the design and use prong, Fortin Law Group argued that the walkway traversing the park was designed to provide access to the various recreational facilities within the park, including the ball fields, and related uses, and had no purpose other than to serve these recreational uses. Finally, we argued that the City generated "little to no revenue" from the park and no entrance fee is required. Accordingly, the cost to litigate claims arising out of public use of the park far exceeds any revenue the park generates. The moving papers argued that, if immunity was not applied to the paved walkway within Greenbelt Park, the operation of the park may be jeopardized by the City's costs in defending such personal injury actions.

The argument was sufficiently compelling to induce experienced Plaintiff's counsel to settle the entire action in exchange for a waiver of costs because, while he felt he could establish a "dangerous condition," under the circumstances of the accident, he did not believe any opposition to the absolute trail immunity would prove successful. Therefore, regardless of the label set forth by Plaintiff's counsel, it behooves the defense effort to investigate the possibility of applying the recreational trail immunity to any sidewalk providing access to recreational facilities because where properly applied, Government Code §831.4 can serve as an absolute bar to liability on behalf of PARSAC's municipal clients.

This article was provided by Fortin Law Group, Costa Mesa, California. This article is intended to provide the reader with general information regarding current legal issues. It is not construed as specific legal advice or as a substitute for the need to seek competent legal advice on specific legal matters.

Tags: 2018, Public Entity

Need legal advice?

Contact us for a free consultation.