Is jogging a “recreational activity” potentially protecting Defendant against a claim of negligence and premises liability?

By Eric Ganci

If you are jogging on someone’s property and injure yourself…can Defendant be liable for negligence or failing to properly maintain their premises? The answer is “it depends”…it usually is in the law…but this February 4, 2022 decision Rucker v. WINCAL, LLC gives guidance. Right now, Rucker’s site is 2022 WL 336718.

The law is California Civil Code 846(a): “An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on those premises to persons entering for a recreational purpose…”

Although exceptions apply.

So, this term “recreational purposes”: what does that mean legally? Civil Code 846(b) lists examples as “fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, private noncommercial aviation activities, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.” However, this list “is not exhaustive…” as Rucker explains.

What happened in Rucker? Plaintiff, training for a half marathon, is jogging on Defendant’s land. There is a homeless encampment and “[t]o avoid the encampment, she ran onto the street’s bicycle lane, where she was struck and injured by a car.”

Defendant files a motion for summary judgment against Plaintiff. To win that MSJ, Defendant must show “the plaintiff has not established, and reasonably cannot be expected to establish, one or more elements of the cause of action in question.”

The Trial Court granted Defendant’s MSJ and Plaintiff appealed. The Court here agrees and continues to grant Defendant’s MSJ. So Plaintiff loses.

Plaintiff argued “jogging” is not specifically listed in CCC 846…but the Court is not persuaded since “jogging was akin to hiking….” “She was not, for instance, jogging because she was late for work, an activity that would not fall within the statutory definition of ‘recreational purpose.’ Rather, she was engaged in an activity for ‘pleasure or exercise’ ‘intended to refresh the body or mind by diversion, amusement or play.’”

“‘Generally, whether one has entered property for a recreational purpose within the meaning of the statute is a question of fact, to be determined through a consideration of the ‘totality of the facts and circumstances, including … the prior use of the land.’”

Plaintiff here must have testified at her deposition she was training for her half marathon. And “[w]hile the plaintiff’s subjective intent will not be controlling, it is relevant to show purpose.’”