In general, premises liability law covers determining whether or not a landowner (or possessor) is legally responsible for injuries sustained by individuals while on the particular premises. The laws and judicial rules covering premises liability are myriad, varying from state to state and from case to case.  Many states, like California, have “recreational use” statutes, which give a certain level of protection to property owners when the injured party suffers an injury due to participating in a sport or recreational activity. This article deals with California premises liability and recreational use rules in places such as roller-skating and ice-skating rinks, or other sports and entertainment venues, where the general public is admitted to participate in recreational activities, and the task lies in determining whether or not liability attaches to the property holder. The subject matter in this article is distinct from spectator injuries at sports arenas, which covers an entirely different body of law. Part I of this series deals with the claims and defenses available in premises liability cases and with the role expert witnesses play in the process.


In its Civil Code, California enacted a statute that largely precludes liability for landowners when other parties use the land for recreational purposes. See Cal. Civ. Code § 846.  It is an affirmative defense to a lawsuit to argue that a plaintiff’s claim is barred because of recreational immunity. The statute is defined very broadly, interpreting a recreational activity as anything from fishing to hang gliding. Id. Moreover, the Code does not require property owners to exercise a duty of care towards individuals who come onto their land; the statute exempts this duty if the purpose for the land use is recreational. Id. However, exceptions exist even to this broadly framed immunity, and that is where finders of fact must often rely upon the knowledge of expert witnesses to determine if liability exists and, if so, in what amount.

Exception #1: Willful or Malicious Disregard:

According to the general principles of the California Code, owners of real property do not owe a duty of care to keep their premises safe for others for recreational purposes or to warn recreational users of hazards on the property, unless “the landowner willfully or maliciously fails to guard or warn against a dangerous condition, use, structure, or activity.” See Ornelas v. Randolph, 847 P. 2d 560 (1993). For an owner’s conduct to rise to the level required for the first exception, three elements must be proven: “(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible result of the danger, and (3) conscious failure to act to avoid the peril.” See New v. Consolidated Rocks Products Co., 217 Cal. Rptr. 522 (1985).

These issues are fact-intensive questions, which clearly require the opinions of expert witnesses. The first and second elements require “actual or constructive knowledge” of a danger and the probability that an injury might result from that danger. While the question of actual knowledge may be proven or inferred by fact witnesses and possibly documentation, indicating that the property owners may have known about a certain danger and failed to address it, the issue of constructive knowledge is almost certainly a matter for expert witnesses. This is because it calls for determining not what the defendants actually knew, but what they should have known. In cases where constructive knowledge is at issue, expert opinions are invaluable in assessing to what standard of knowledge a defendant should be held. The latter component of the second element of this exception requires a plaintiff to prove that an injury would probably result from a particular danger on the premises. In determining what would be probable versus simply possible, as the courts require, experts such as engineers and architects with particular expertise in the structural integrity and design of sports and recreational facilities are needed to investigate the construction, operation, and maintenance of recreational premises.

Exception #2: Consideration:

If a fee was paid by an individual to use a recreational facility, such as an entrance fee for a skating rink, the defendant landowner no longer has recreational immunity in California. Whether a fee was paid is a question of fact, which can be easily determined. However, the courts have stated that the intent of the Civil Code was to encourage property owners to allow people to use their land for recreational purposes without fear of litigation, and the trial courts are therefore ordered to construe the term “consideration” as narrowly as possible. See Johnson v. Unocal Corp., 26 Cal. Rptr. 2d 148 (1993).

Exception #3: Express Invitation:

Where property owners expressly invite individuals to use their land for recreational purposes, they cannot claim immunity from the Civil Code. See Ornelas v. Randolph, supra. Interpreting what an “express invitation” is may at times be a question of fact, while at other times it is a matter of law. For example, in federal cases arising in California and involving premises liability for recreational facilities, the Ninth Circuit has held that invitations to the general public do not constitute “express invitations” and therefore do not bar a defendant from claiming recreational immunity. See Ravell v. U.S., 22 F. 3d 960, 963 (9th Cir. 1994), citing Johnson v. Unocal, id. However, this issue has not been definitely resolved by the California Supreme Court, so in cases involving claims of premises liability in California state courts, plaintiffs may be able to persuade a fact-finder that an “express invitation” is, in fact, synonymous with an invitation to the general public, or that advertisements from recreational facilities that use language such as “kid’s night” or “amateur leagues encouraged” may, in fact, be holding an express invitation out to individuals. Under these circumstances, the experts may again play a valuable role, helping to determine not only when it is reasonable to assume that an express invitation is issued, but also to discuss what the majority of athletes, recreational participants, and others in the field of sports and recreation would be inclined to think upon seeing such an advertisement.


Premises Liability for recreational or sports facilities is an important and timely issue that will only continue to grow as more and more people take part in recreational activities or attend sporting events. Many issues, in terms of claims and defenses can be raised in the context of liability for recreational premises, and it behooves attorneys for either side to have experts prepared to bolster their cases and stay on top of the trends in litigation. Subsequent articles will address other aspect of premises liability for recreational facilities, as well as the various claims and defenses, and assess where the experts can best assist attorneys who try these cases.

By: Kat S. Hatziavramidis, Attorney-at-Law