By Dana Vessey and Marc Tran, Best Best & Krieger.

Of the many immunities available under the California Government Code, “trail immunity” under section 831.4 has long shielded public entities from liability when injuries are suffered by those using public property for recreational purposes. Immunity under this section even extends to private property owners who grant public easements to public entities for those purposes. The immunity was enacted to encourage public entities and private easement grantors to allow the use of public property for recreation without the burden and expense of litigation stemming from alleged injuries on the trails leading to recreational activities.

However, an appellate court recently rejected this defense in a case involving the City of Pasadena. In Jacobo Garcia v. American Golf Corporation, the City was sued after a young child was struck in the head by a stray golf ball, which caused a brain injury. At the time of his injury, the child was in a stroller on a walkway that was part of the City of Pasadena’s Rose Bowl Loop, located next to a golf course. The child’s mother sued the City, which owns the golf course, along with the private entity that managed and operated the golf course.

The City asserted trail immunity to defend against the lawsuit. The plaintiffs countered that the dangerous condition was not the location of the walkway — insofar as its proximity to the golf course — but rather the inadequacy of the seven-foot high fences around the golf course, and other measures taken to guard against injuries that could be caused by stray golf balls. The trial court sided with the City, and the plaintiffs appealed. The issue on appeal was whether the injury was caused by a dangerous condition of the walkway for purposes of trail immunity.

Rejecting the City’s assertion and trial court’s application of trail immunity, the appellate court found that, while the City could be protected from injuries caused by the walkway itself, the immunity did not extend to dangerous conditions caused by the golf course – an adjacent public property.

In reaching its conclusion, the appellate court had to distinguish the case from a number of contradictory cases, including Leyva v. Crocket & Co., Inc., a case decided in January of this year. The Leyva court evaluated strikingly similar facts: a pedestrian traveling along a public path adjacent to a golf club suffered an injury caused by a stray golf ball. However, in Leyva, the appellate court applied trail immunity and extended the cloak of immunity to a private golf club owner who had granted adjacent easements to a county for public unpaved recreational hiking trails.

The difference between the Leyva opinion and the Garcia opinion is a matter of policy. The appellate court honed in on fairness and disincentives for immunizing the City. In particular, the court deemed it fair to deny the City immunity for a dangerous condition on the golf course that increases the risk of harm by third party conduct and opined that cloaking the City with immunity would disincentivize it from correcting the dangerous condition.

The appellate court has thus limited a public agency’s trail immunity under certain circumstances. With Garcia in mind, public entities and private owners/operators alike should ensure that sufficient preventative measures are considered and taken when evaluating recreational properties adjacent to public trails.

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Dana Vessey is a litigator who represents public agencies in a variety of issues in state and federal court. She is a member of Best Best & Krieger LLP’s Municipal Law practice group. She can be reached at

Marc Tran is an attorney in Best Best & Krieger LLP’s Municipal Law practice group. He can be reached at